Punjab-Haryana High Court
Kirpal Singh vs Harpreet Singh on 15 February, 2025
Neutral Citation No:=2025:PHHC:027345
CRM-M-2217-2025 1
203 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-2217-2025
Judgment reserved on: 29.01.2025
Pronounced on: 15.02.2025
Kirpal Singh ...Petitioner
V/S
Harpreet Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Vipin Mahajan, Advocate
for the petitioner.
Mr. Dinesh Mahajan, Advocate
for the respondent.
***
HARPREET SINGH BRAR J.
1. The present petition under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter 'BNSS') is preferred by the petitioner
for seeking quashing of order dated 26.11.2024 (Annexure P-5) passed by
learned Judicial Magistrate Ist Class, Gurdaspur, whereby application of the
petitioner for amendment of complaint in case bearing no. NACT/111/2020
filed under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter
'NI Act') titled as 'Kirpal Singh v. Harpreet Singh' has been dismissed.
2. Briefly, the facts are that the respondent issued a cheque,
bearing No. 338572 dated 31.12.2019 for an amount of Rs. 8,50,000/- in
favour of the petitioner-complainant which was dishonoured on presentation
for encashment vide memo dated 01.01.2020 with the remarks- 'funds
insufficient.' Thereafter, a legal notice dated 27.01.2020 was sent to the
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respondent to call upon him to make the payment. However, the respondent
failed to make the requisite payment and consequently the present complaint
was filed.
3. During the pendency of the case, the petitioner filed an
application dated 24.10.2024 (Annexure P-3) seeking amendment of the
complaint by replacing the words "send his son" to "go" in the third line of
para 4 of the same. The learned trial Court, vide order dated 26.11.2024
(Annexure P-5), dismissed the said application. Aggrieved by the same, the
petitioner has approached this Court.
4. Learned counsel for the petitioner inter alia contends that the
learned trial Court gravely erred in dismissing the application for
amendment of the complaint since the mistake sought to be rectified is
merely typographical in nature. The amendment is only to the extent that the
petitioner incorrectly mentioned that the money was taken by the respondent
for sending his son abroad whereas he took the money for himself. The
factum of the issuance of cheque and the signature it bears is not disputed.
The liability of the respondent is also not disputed. In such circumstances,
allowing the application would have helped the Court to reach at the correct
conclusion. Moreover, allowing the amendment sought would cause no
prejudice to the respondent.
5. Per contra, learned counsel for the respondent submits that
there is no provision in the Cr.P.C that allows for the application for
amendment of complaint. Further, the amendment sought pertains to a
serious infirmity that goes to the root of the matter and as such, cannot be
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allowed. Additionally, the petitioner had on an earlier occasion moved a
similar application seeking amendment which was allowed by the learned
trial Court. Resorting to it again is just an attempt by the petitioner to fill up
the lacunae and delay the proceedings of the court intentionally in order to
harass the respondent.
6. Having heard learned counsel for the parties and perusing the
record of the case, it transpires that originally para 4 of the complaint (supra)
read as follows:
"That accused in the month of March, 2019 requested to the
complainant to advance Rs. 10,00,000/- as friendly loan as the accused
needed the money to send his son abroad i.e. Canada"
Pertinently, the same allegation was levelled by the petitioner in
the legal notice dated 27.01.2020 sent by him to the respondent.
7. Allowing the proposed amendment to paragraph 4 of the
complaint would fundamentally alter the factual matrix of the case and
cannot, by any stretch, be categorized as a mere typographical correction.
The original wording explicitly states that the loan was sought for the
purpose of "sending the respondent's son abroad," whereas the amendment
seeks to replace it with the word "go," which significantly changes the
context of the alleged transaction. Such an alteration is not a minor or
technical modification but strikes at the very root of the case, as it directly
affects the nature of the representation made by the respondent at the time of
seeking the loan.
8. Permitting such a change would also create the potential for
serious prejudice to the respondent. For instance, if it were to later emerge
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that the son of the respondent was already abroad at the relevant time, the
original assertion, that the loan was required for sending him abroad, would
stand contradicted, which could have been a material aspect weighing
against the case of the petitioner. However, by altering the language the
petitioner seeks to cure a potential infirmity in the narrative of the
prosecution, thereby attempting to fill a lacuna. This is impermissible in law,
as amendments to pleadings cannot be allowed when they fundamentally
reshape the case in a manner that alters its core foundation or prejudices the
defense. Fairness and procedural propriety demand that the case of the
petitioner stand or fall on its original assertions and evidence, without the
benefit of retrospective tailoring.
9. A two Judge bench of the Hon'ble Supreme Court in S.R.
Sukumar v. S. Sunaad Raghuram (2015) 9 SCC 609, speaking through
Justice R. Banumathi, the following was held:
"17. Insofar as merits of the contention regarding allowing of
amendment application, it is true that there is no specific provision in
the Code to amend either a complaint or a petition filed under the
provisions of the Code, but the Courts have held that the petitions
seeking such amendment to correct curable infirmities can be allowed
even in respect of complaints. In U.P. Pollution Control Board v.
Modi Distillery and Ors., (1987) 3 SCC 684, wherein the name of the
company was wrongly mentioned in the complaint that is, instead of
Modi Industries Ltd. the name of the company was mentioned as Modi
Distillery and the name was sought to be amended. In such factual
background, this Court has held as follows:-
"...The learned Single Judge has focused his attention only on
the technical flaw in the complaint and has failed to
comprehend that the flaw had occurred due to the recalcitrant
attitude of Modi Distillery and furthermore the infirmity is one
which could be easily removed by having the matter remitted to
the Chief Judicial Magistrate with a direction to call upon the
appellant to make the formal amendments to the averments
contained in para 2 of the complaint so as to make the
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controlling company of the industrial unit figure as the
concerned accused in the complaint. All that has to be done is
the making of a formal application for amendment by the
appellant for leave to amend by substituting the name of Modi
Industries Limited, the company owning the industrial unit, in
place of Modi Distillery.... Furthermore, the legal infirmity is
of such a nature which could be easily cured..."
18. What is discernible from the U.P. Pollution Control Board's case
is that 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
does not relate either to a curable infirmity or the same cannot be
corrected by a formal amendment or if there is likelihood of prejudice
to the other side, then the Court shall not allow such amendment in
the complaint."
10. In the same vein, the Hon'ble Supreme Court in Munish
Kumar Gupta vs. M/s Mittal Trading Company, 2024 SCC OnLine SC
1732 dealing with an amendment application with regard to an inadvertent
typographical error in mentioning the year of the cheque, held that the
complainant consistently recorded the cheque date as 22.07.2010 right from
the stage of issuing the notice demanding payment, in the complaint, and in
the evidence presented as well. All supporting documents also reflected this
date. Even if an amendment was allowed in order to change the cheque date
to 22.07.2012, the existing evidence, which is consistent in mentioning
2010, would contradict the amendment, making such a correction
unjustified. Since the date of the cheque is also crucial for determining
compliance with the statutory notice period under the Negotiable
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Instruments Act, 1881, and for assessing whether the issuer had sufficient
funds in the account at that time, the requested amendment was denied.
11. In view of the discussion above, the present petition is
dismissed and order dated 26.11.2024 (Annexure P-5) passed by learned
Judicial Magistrate Ist Class, Gurdaspur, is upheld.
12. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(HARPREET SINGH BRAR)
15.02.2025 JUDGE
Ajay Goswami
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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