IMPORTANT POINT
Amendments to complaints under the Negotiable Instruments Act that change the nature of the complaint are not permissible if they could cause prejudice to the accused.

ORDER :

(Pranay Verma, J.) :

This petition under section 482 of the Criminal Procedure Code has been preferred by the petitioner/accused being aggrieved by the order dated 16-5-2023 passed in SC NIA No. 129/2019 by the Judicial Magistrate, First Class, Jaora, District Ratlam whereby the application preferred by the complainant/respondent for making amendment in the original complaint filed by him under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as ‘the Act, 1881’) has been allowed. The petitioner/accused has also challenged the order dated 11-3-2023 passed by the trial Court rejecting an application under section 142 of the Act, 1881 filed by him.

2. The facts of the case are that the complainant has filed a complaint before the Trial Court under section 138 of the Act, 1881 against the accused. It is his allegation that for returning part of the amount borrowed by him, the accused had issued four cheques to him for payment of a total sum of Rs. 7,00,000/-. The cheques were presented for encashment but were returned unpaid on 11-6-2019 due to insufficiency of funds in the bank account of the accused. Thereafter legal notice was sent to accused on 18-6-2019 despite service of which no payment was made by the accused within the period of 15 days of the amount payable under the cheques hence the complaint has been filed by him.

3. On filing of the complaint cognizance of the same was taken by the trial Court on 3-8-2019. Thereafter charge under section 138 of the Act, 1881 was framed against the accused. On 7-12-2019, the accused moved an application under section 142 of the Act, 1881 before the trial Court submitting that the complainant has issued notice to him and has filed complaint with respect to the cheque dated 10-5-2018 and 15-5-2018. Instead of producing the aforesaid cheques the complainant has produced cheques dated 10-5-2019 and 15-5-2019 hence the complaint deserves to be dismissed on that ground. The complainant contested the application by filing his reply submitting that variation in the dates is merely a typographical error and he has already filed an application for correction of the same. By order dated 18-3-2023 the aforesaid application of the accused was rejected by the trial Court on the ground that the complaint cannot be dismissed only on the basis of technicalities.

4. The complainant had on 25-1-2020 filed an application for amendment in the original complaint as stated above which was opposed by the accused but has been allowed by the trial Court by the impugned order dated 16-5-2023. It has been held that the aforesaid error is only a typographical error and for correction of the said inadvertent mistake the amendment deserves to be permitted.

5. Learned counsel for the accused has submitted that in the Code of Criminal Procedure, there is no provision which permits amendment in the pleadings. The application was also moved without mentioning any provision of law. The complainant has filed the complaint with respect to cheques dated 10-5-2018 and 15-5-2018. The same dates were also mentioned in his affidavit so also in the notice issued by him to the accused prior to filing of the complaint. Thus, the dates of the year 2018 have been mentioned by the complainant since the very inception hence it was not a case of mere typographical error or inadvertent mistake. Reliance has been placed on the decision of this Court in Lekhraj Singh Kushwah vs. Brahmanand Tiwari, ILR (2013) M. P., 1783 and order dated 27-8-2014 in M.Cr.C. No. 5527/2012 Dilip vs. State of M. P. It is further submitted that for the very same reasonings the order dated 11-3-2023 rejecting the application of the accused under section 142 of the Act, 1881 also deserves to be quashed.

6. Per contra, learned counsel for the complainant has submitted that the cheques are dated 10-5-2019 and 15-5-2019 only. There is no cheque exchanged between the parties bearing the date 10-5-2018 and 15-5-2018. Mentioning of year 2018