Courts may allow amendments to complaints post-cognizance if no prejudice is caused to the accused, focusing on ensuring justice rather than strictly adhering to procedural technicalities.

JUDGMENT :

K.V. Viswanathan, J.

1. Leave granted.

2. Procedure, it is said, is only a handmaiden and not a mistress of justice. However, the said adage has been followed only in the breach in this case. A simple issue of an amendment to a complaint has held up a trial under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”) for the last nearly two years.

BRIEF FACTS:

3. 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 numbering three and totaling to an amount of Rupees Fourteen Lakhs had been dishonored. Summons was issued to the respondents and at the stage when the complainant was 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 mistake it had been pleaded that the respondents had been purchasing Desi Ghee (milk products) while it should have been that the respondents were purchasing “milk”. The respondents vehemently objected to the amendment. It was contended that no amendment was permissible after cognizance is taken and that the amendment sought, changed the nature of the complaint.

4. By order dated 02.09.2023, the Trial Court held that since the complainant was yet to be cross-examined, no prejudice would be caused to the accused/respondents. It was also held that the amendment was in the nature of a typographical error, moved at an initial stage of the case. So holding the amendment was allowed.

5. The respondents challenged the order under Section 482 of Code of Criminal Procedure (for short ‘the Cr.P.C.’). It was additionally contended that the amendment was not a typographical error since even in the legal notice that preceded the filing of the complaint, what was mentioned was “Desi Ghee (milk products)”. It was further argued that the amendment is an attempt to avoid liability under the Goods and Services Tax Act, 2017 (for short the ‘GST’).

6. By virtue of the impugned order, the High Court has allowed the petition, holding that the amendment sought was not in the nature of a typographical error, but it had a wider impact upon the entire matter in dispute and, therefore, it changed the nature of the complaint. The High Court also found merit in the contention of the respondents that the amendment was sought, as no GST was leviable on milk.

CONTENTIONS:

7. We have heard Mr. Chritarth Palli, learned Counsel for the appellant and Mr. Aabhas Kshetarpal, learned Counsel for the respondents. We have also perused the records. Learned Counsels reiterated the stand of the respective parties in the courts below.

8. The issue, whether a criminal court has power to order amendment of a complaint filed under Section 200 of the Cr.P.C., is no longer res integra. In S.R. Sukumar v. S. Sunaad Raghuram , (2015) 9 SCC 609, this Court held as under:-

“19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint do