IMPORTANT POINT
Dishonour of cheque – Amendment of date of cheque is not permissible.

ORDER :

1. Leave granted.

2. Heard the learned counsel for the appellant and perused the appeal papers.

3. The respondent, though served, has not chosen to appear and have his say in the instant proceedings.

4. From a perusal of the record, it is noted that the respondent had initiated a complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 of the Indian Penal Code, 1860. In the complaint, it has been alleged that the appellant, to discharge its financial liability, had issued an account payee cheque dated 22.07.2010 bearing No.732966. The complaint had been filed on 02.01.2013. The matter has thus proceeded before the learned Magistrate. Subsequently, the respondent had tendered evidence before the learned Trial Court. At that stage, claiming that inadvertently a typographical error had arisen with regard to mentioning the year of the cheque, the respondent had filed an application seeking amendment of the said complaint. The application for amendment was filed as late as on 24.10.2017. The learned Magistrate, having taken note of the said application for amendment, has through her Order dated 13.07.2018, arrived at the conclusion that the amendment, as sought for, would not be justified inasmuch as the said date, which is now sought to be corrected, has already been recorded in the evidence during cross-examination and also the relevant documents contain the same. The respondent, claiming to be aggrieved by the said order dated 13.07.2018, went before the High Court assailing the same. The High Court, through its judgment and order dated 04.01.2023, has allowed the said application and permitted the respondent to carry out the amendment. It is in that circumstance, the accused in the said case is before us assailing the judgment/ order of the High Court.

5. Having heard the learned counsel for the appellant, a perusal of the documents before us would indicate that from the very stage of issue of notice demanding payment, the date of the cheque had been indicated as 22.07.2010. Subsequent thereto, in the complaint as also while tendering the evidence, the date was recorded as 22.07.2010.

6. Presently, an application has been filed seeking amendment of the date of the cheque from 22.07.2010 to 22.07.2012 as also changing the date in the evidence recorded by the complainant to the same effect. It is in that light, at the first instance, the learned Magistrate considering the application has rightly concluded that even if the amendment/ correction is permitted in the complaint to indicate the date as 22.07.2012, the evidence supporting the case of the appellant contains the year as 2010, and as such, the amendment/ correction would not be justified.

7. As against such conclusion reached by the learned Magistrate, the High Court based on the discussion and applying the principles laid down in the various judgments cited therein by the learned counsel, allowed the said application to carry out necessary corrections/ amendment. However, while ultimately arriving at the conclusion as to whether the amendment is required to be permitted, the High Court had merely arrived at the conclusion that if such amendment is not permitted, it would prove fatal to the case of the complainant and as indicated, the respondent/complainant was only seeking the correction of the year. The High Court has, in fact, lost sight of the fact that the documents also contain the said date and the evidence recorded is also to the same effect.

8. Therefore, the opinion reached by the High Court to arrive at the conclusion that the mistake could be committed while taking copies from the computer would not be justified in the facts of the present case where the legal notice had indicated the date, and based on the same, the complaint had been initiated.

9. In a matter of the present nature, where the date is a relevant aspect based on which the entire aspect relating to the issue of notice within the time frame as provided under the Ne