Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 506

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jagmohan Bansal, J.
M/s Mittal Trading Company – Appellant
Versus
Munish Kumar Gupta – Respondent
CRM-M-37796-2018 (O&M)
Decided On : 04-01-2023

Advocates appeared:
Mr. Nakul Sharma, Advocate, for the Appellant; Mr. P.S. Ahluwalia, Advocate, for the Respondent.

The court emphasized the power of the court to alter or add charges, permit re-examination of witnesses, summon additional accused, and allow additional evidence, and highlighted the quasi-criminal nature of the proceedings under Section 138 of the NI Act, emphasizing the intent to ensure recovery through summary procedure.

Headnote:
amendment - Section 138 of Negotiable Instruments Act, 1881 - Section 420 IPC - [Section 216, Section 311, Section 319, Section 391 of Cr.P.C.] - The court allowed the amendment of the complaint under Section 138 of the Negotiable Instruments Act, 1881, despite the belated stage of the trial, to correct a clerical mistake in the year mentioned in the documents. The court emphasized the power of the court to alter or add charges, permit re-examination of witnesses, summon additional accused, and allow additional evidence, and highlighted the quasi-criminal nature of the proceedings under Section 138 of the NI Act, emphasizing the intent to ensure recovery through summary procedure. The court also noted that the object of creating criminal liability under Section 138 of the NI Act is to create fear, punish dishonest drawers of cheques, and create confidence in the banking system and financial transactions through cheques.
Fact of the Case:

The petitioner sought the quashing of an order that declined the request to amend a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, alleging a clerical mistake in the year mentioned in the documents. The trial court had dismissed the application for amendment, citing the belated stage of the trial and the repeated mention of the incorrect year in various documents.
Finding of the Court:

The court allowed the amendment of the complaint, emphasizing the power of the court to alter or add charges, permit re-examination of witnesses, summon additional accused, and allow additional evidence. The court highlighted the quasi-criminal nature of the proceedings under Section 138 of the NI Act and the intent to ensure recovery through summary procedure.
Issues: Whether amendment of the complaint filed under Section 138 of NI Act was permissible? Whether the trial court has the power to permit amendment of the complaint?
Ratio Decidendi: The court emphasized the power of the court to alter or add charges, permit re-examination of witnesses, summon additional accused, and allow additional evidence, and highlighted the quasi-criminal nature of the proceedings under Section 138 of the NI Act, emphasizing the intent to ensure recovery through summary procedure.
Final Decision: The court allowed the amendment of the complaint under Section 138 of the Negotiable Instruments Act, 1881, despite the belated stage of the trial, to correct a clerical mistake in the year mentioned in the documents.

JUDGMENT

Jagmohan Bansal, J. (Oral) - The petitioner through instant petition under Section 482 Cr.P.C. is seeking quashing of order dated 13.07.2018 (Annexure P-1) whereby learned Judicial Magistrate 1st Class, Amloh has declined the request of the petitioner to amend complaint bearing No.1 dated 02.01.2013.

2. The petitioner filed a complaint in terms of Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act') read with Section 420 IPC alleging that respondent was working with petitioner as DSE. The respondent with a view to discharge its financial liability issued an account payee cheque No.732966 dated 22.07.2012. The cheque was presented by the petitioner which came to be returned on account of 'insufficient balance'. The petitioner served legal notice upon the respondent which was followed by afore-stated complaint under Section 138 of NI Act read with Section 420 IPC. In the complaint, the date of cheque was mentioned as 22.07.2010 whereas as per the petitioner, the correct date of cheque is 22.07.2012. The petitioner moved an application seeking amendment of the complaint. Learned Magistrate vide impugned order dated 13.07.2018 has dismissed the application of the petitioner on the ground that there is same averments qua date of cheque in different documents including preliminary evidence tendered by the complainant. The typographical mistake can occur once and not repeatedly in all the documents. The cross-examination of the complainant had already concluded, thus, the complainant cannot be allowed to fill up the lacuna that has come in his notice at this belated stage.

3. Learned counsel for the petitioner in support of his contention that amendment of complaint is permissible cited judgment of Bombay High Court in Anand Vs. Step in Computer shopee and another 2014(3)RCR (Criminal) 597, Rajasthan High Court in Bhim Singh Vs. Kan Singh 2004 (2) RCR (Criminal) 22, this Court in Bedi sons Steels & Wires Vs. M/s B.G. Brothers 2002 (2) RCR (Criminal) 45 and Madhya Pradesh High Court in Pandi Gorelal and another Vs Rahul Punjabi 2011 (2) RCR (Criminal) 882.

4. Learned counsel for the respondent submits that it is no longer res intgra that amendment of complaint is permissible, however, court can permit amendment in the facts and circumstances of each case. In the case in hand, the complaint was filed in 2013. The preliminary evidence was recorded on 11.07.2013 and thereafter examination-in-chief of petitioner took place on 17.12.2013. The alleged mistake is not only in the complaint but it is in the affidavit of the complainant/petitioner, notice of accusation and legal notice served by the petitioner. The amendment would amount to filling up lacuna and at a belated stage which cannot be permissible in law.

5. In support of his contention, learned counsel for the respondent cited judgment of this Court in Kumar Rubber Industries, Kapurthala Vs. Sohan Lal 2002 (2) RCR (Criminal) 111, Bombay High Court in Neeraj Cement Structurals Pvt. Ltd & Anr. Vs. Bombay J.C.B. Earth Movers & Anr 2008 (16) RCR (Criminal) 719 and Madhya Pradesh High Court in Sunderdev Vs. Yogesh 2008 (24) RCR (Criminal) 101.

6. I have heard the arguments of both sides and with the able assistance of counsel scrutinized the record.

7. From the pleadings and arguments of learned counsel of both sides, questions arising for the adjudication by this court are:

i) Whether in view of the facts amendment of the complaint filed under Section 138 of NI Act was permissible?

ii) Whether trial court has power to permit amendment of complaint?

8. In view of statement of Ld. Counsel for the respondent, there is no need to advert with second issue. Thus, it is undisputed that trial court even though there is no specific provision in Cr.P.C. yet has power to permit amendment of complaint.

9. There are more than one provisions of Cr.P.C. which permit amendment. Section 216 permits addition or alteration of charge prior to pronouncement of judgment. Section 311 permits sum