Supreme Court: In a criminal appeal filed against the judgment and order of the Punjab and Haryana High Court, wherein the High Court had held that the amendment sought by the appellant/complainant was not merely a typographical error and had a broader impact on the matter in dispute, thereby altering the nature of the complaint, a Division Bench comprising BV Nagarathna and KV Viswanathan*, JJ., while upholding the Trial Court’s order allowing an amendment application in a complaint under the Negotiable Instruments Act, 1881, reaffirmed that it is fallacious to contend that amendments to complaints can never be allowed after cognizance is taken. Further, the Court said that the High Court had misdirected itself by delving into the issue of GST applicability, which lies within the purview of the appropriate tax authorities under the relevant statute. The Court clarified that the amendment in question did not alter the fundamental nature or character of the complaint.
Accordingly, the appeal was allowed, the High Court’s judgment was set aside, and the Trial Court’s order dated 02.09.2023 was restored.
Background
The appellant, on 08-04-2022, filed a complaint under Section 138 of the NI Act against the respondents. The complaint averred that the respondents had purchased Desi Ghee (milk products) and that cheques issued by them, totaling an amount of Rupees Fourteen Lakhs, had been dishonored. Summons were issued to the respondents, and at the stage when the complainant had yet to be cross-examined, an amendment application to amend the complaint was moved by the appellant. The appellant contended that due to a typographical error, it had been mistakenly pleaded that the respondents had purchased Desi Ghee (milk products), while it should have stated that the respondents were purchasing “milk.”
The respondents vehemently objected to the amendment, arguing that no amendment was permissible after cognizance had been taken, and that the proposed amendment altered the nature of the complaint.
By order dated 02-09-2023, the Trial Court held that since the complainant had yet to be cross-examined, no prejudice would be caused to the respondents. It also held that the amendment was merely a typographical error, moved at an initial stage of the case. Consequently, the amendment was allowed.
The respondents challenged this order under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’). They further contended that the amendment was not a typographical error, as “Desi Ghee (milk products)” had been mentioned even in the legal notice that preceded the filing of the complaint. Additionally, it was argued that the amendment was an attempt to avoid liability under the Goods and Services Tax Act, 2017 (‘GST’).
By virtue of the impugned order, the High Court allowed the petition, holding that the amendment sought was not merely a typographical error. The Court found that the amendment had a broader impact on the entire matter in dispute, ultimately changing the nature of the complaint. The High Court also found merit in the respondents’ contention that the amendment was sought to avoid GST liability, as no GST was leviable on milk.
Analysis and Decision
The Court observed that the issue of whether a Criminal Court has the power to order an amendment of a complaint filed under Section 200 of the CrPC is no longer res integra.
Taking note of S.R. Sukumar v. S. Sunaad Raghuram (2015) 9 SCC 609, the Court emphasised that it is fallacious to contend that amendments to complaints cannot be allowed under any circumstances after cognizance is taken.
The Court noted that the term “complaint” is defined under Section 2(d) of the CrPC (and Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita, 2023). As typically understood, a complaint could even be oral. However, in the context of a case under Section 138 of the NI Act, it is important to highlight that Section 142 of the NI Act mandates that a written complaint is required to take cognizance of any offence punishable under Section 138. While ordinarily, an oral complaint might suffice to initiate a criminal case, any amendments to a written complaint should be considered with the broadest latitude, unless explicitly prescribed otherwise.
In line with S.R. Sukumar (supra), the Court emphasised that any amendment should ensure that no prejudice is caused to the accused.
The Court also observed that amendments or alterations are not alien to the CrPC. Section 216 of the CrPC deals with the Court’s power to alter any charge and addresses the potential prejudice to the accused. Although altering a charge involves modifying the legal provision and its application to specific facts, the facts themselves may not change.
Referring to Section 216 and 217 of the CrPC, the Court noted that when a charge is altered, if there is no prejudice caused to the accused, the trial can proceed uninterrupted. However, if prejudice is likely, the Court has the discretion to either direct a new trial or adjourn the proceedings for an appropriate period. Importantly, Section 217 of the CrPC provides both the prosecution and the accused the liberty to recall or re-examine witnesses, if charges are altered, under the conditions laid down therein. The test of prejudice to the accused remains the cardinal consideration in such cases.
Upon examining the complaint and the application for amendment, the Court observed that the amendment had been sought at a stage where the summons had already been issued, and the complainant’s chief examination was complete, with cross-examination pending. The amendment pertained solely to the description of the products supplied. According to the complainant, the actual product delivered was “milk,” but due to an inadvertent error, “Desi Ghee (milk products)” was mentioned in both the legal notice and the complaint. The complainant contended that the mistake originated in the legal notice and was inadvertently carried forward into the complaint.
On the facts of the present case and considering the stage of the trial, the Court found that absolutely no prejudice would be caused to the accused/respondents by allowing the amendment. The Court observed that the actual facts and circumstances must be examined and resolved during the course of the trial. The impact of the amendment on the existence of debt or liability under Section 138 of the NI Act is a matter for the Trial Court to determine based on the evidence presented.
The Court held that the error in the complaint was a curable irregularity, which the Trial Court had rightly addressed by permitting amendment. It could not be said that allowing such an amendment at a stage when the complainant’s evidence was incomplete would result in a failure of justice.
Furthermore, the Court said that the High Court misdirected itself by delving into the issue of leviability of GST, which falls within the domain of the appropriate tax authorities under the relevant statute. The Court also clarified that the amendment did not alter the fundamental nature or character of the complaint.
Accordingly, the appeal was allowed, and the judgment and order of the Punjab and Haryana High Court was set aside. The Trial Court’s order dated 02-09-2023 was restored, and the Trial Court was directed to proceed expeditiously. Both parties were granted the liberty to apply for recall of witnesses already examined, in line with the provisions of the law.
[Bansal Milk Chilling Centre v. Rana Milk Food Private Ltd, 2025 SCC OnLine SC 1509, decided on 25-07-2025]
*Judgment Authored by: Justice KV Viswanathan
Advocates who appeared in this case :
For Petitioner(s): Mr. Chritarth Palli, AOR Ms. Harsheen M Palli, Adv. Mr. Agam Aggarwal, Adv.
For Respondent(s): Mr. Aabhas Kshetarpal, AOR Mr. Dhiliban Varadarajan, Adv. Mr. Harsh N Dudhe, Adv.
Buy Code of Criminal Procedure, 1973 HERE
