Recently, the Supreme Court allowed a post-cognizance amendment to a complaint under Section 138 of the Negotiable Instruments Act, holding that curable procedural irregularities in written complaints can be rectified if no prejudice is caused to the accused. The matter arose from a cheque dishonour case where the complainant sought to change the description of goods supplied from “Desi Ghee” to “milk,” citing a typographical error. The Court observed that criminal proceedings must focus on substantive justice and not be derailed by technicalities, especially when the amendment does not alter the nature of the complaint or cause prejudice to the other party.
Brief Facts:
The case arose from a complaint filed under Section 138 of the Negotiable Instruments Act, where the appellant alleged that the respondents had issued three cheques totaling ₹14 lakhs towards the purchase of dairy products, which were dishonoured. However, before the cross-examination of the complainant could begin, an application was filed to amend the complaint, changing the description of the goods from “Desi Ghee (milk products)” to simply “milk,” claiming it was a typographical error. The respondents opposed the amendment, arguing it changed the nature of the complaint and was not a mere clerical mistake. They also alleged that the modification was an attempt to escape tax liability under the GST regime, as milk is exempt from GST.
Although the Trial Court allowed the amendment, considering it to be minor and non-prejudicial, the High Court disagreed. It ruled that the change had significant implications on the dispute, altered the substance of the complaint, and could not be treated as a typographical error, especially since even the pre-litigation legal notice referred to “Desi Ghee". The High Court further noted the potential GST evasion angle before setting aside the Trial Court’s order.
Contentions of the Petitioner:
The counsel for the appellant contended that the amendment sought in the complaint was minor, correcting a typographical error that inaccurately described the goods as “Desi Ghee” instead of “milk.” It was argued that such a correction was permissible, especially as it did not alter the substance of the case and would not cause prejudice to the respondents. Relying on the Supreme Court’s ruling in S.R. Sukumar v. S. Sunaad Raghuram, the appellant maintained that curable legal infirmities could be corrected even in the absence of a specific provision for amendment under the Criminal Procedure Code.
Contentions of the Respondent:
Conversely, the counsel for the respondents asserted that the amendment sought was far from a trivial correction. They argued it went to the root of the dispute and fundamentally altered the nature of the complaint. Emphasizing that the amendment was made post-cognizance and after issuance of summons, the respondents contended that the S.R. Sukumar precedent had no application, as that case involved a pre-cognizance amendment. They further argued that the attempted change could potentially be a deliberate effort to evade GST liability, given that milk is exempt while Desi Ghee is taxable.
Observations of the Court:
The Court began by closely analyzing the judgment in S.R. Sukumar v. S. Sunaad Raghuram, emphasizing that it was grounded in the earlier decision of U.P. Pollution Control Board v. Modi Distillery. In that precedent, the Supreme Court had overturned a High Court decision which had quashed criminal proceedings on a mere technicality, the incorrect naming of the accused entity. The Supreme Court observed that the complaint's flaw could have been remedied by a formal amendment. It criticized the High Court’s narrow and overly technical approach, stating, “It would be a travesty of justice if the big business house of Modi Industries Limited is allowed to defeat the prosecution launched and avoid facing the trial on a technical flaw which is not incurable...”
The Court reaffirmed that if an error in a complaint is easily curable and does not cause prejudice to the accused, procedural flexibility must be extended to avoid miscarriage of justice.
The Court further clarified that S.R. Sukumar did not lay down a blanket prohibition against post-cognizance amendments. It cited four specific factors from that judgment supporting the allowance of an amendment, including the absence of prejudice, the unaltered nature of the complaint, and the avoidance of multiplicity of proceedings. Thus, the assertion that amendments cannot be allowed after cognizance was found to be a flawed interpretation. The Court also referred to Kunapareddy v. Swarna Kumari, reiterating that criminal courts are not powerless to permit amendments where appropriate. In contrast, it distinguished Munish Kumar Gupta v. Mittal Trading Company, noting that the amendment in that case involved a critical date linked to statutory timelines and was sought after considerable delay, hence rightly disallowed.
Importantly, the Court turned to the definition of "complaint " under Section 2(d) CrPC and emphasized that while complaints can ordinarily be oral, a written complaint is statutorily mandated under Section 142 of the NI Act. Given this context, the Court opined that allowing corrections in written complaints, especially when they pertain to curable irregularities, should be approached with greater latitude, provided they do not cause prejudice to the accused.
To reinforce its point, the Court referred to Sections 216 and 217 CrPC (now Sections 239 and 240 of BNSS, 2023), which allow for alteration of charges and recall of witnesses where necessary. These provisions clearly recognize that trials may evolve and that courts must ensure fairness rather than strict adherence to procedural rigidity. The ultimate test, the Court held, remains whether prejudice is caused to the accused. Applying these principles to the present case, the Court noted that the amendment sought by the complainant merely corrected the description of the product supplied, from “Desi Ghee (milk products)” to “milk.” This correction was consistent with the original intent of the complaint and arose from an inadvertent error repeated from the legal notice. At the time of the amendment, the complainant’s chief examination had concluded, and cross-examination was yet to begin, a stage where no prejudice would result from the correction.
The Court found that the amendment neither changed the substance nor the nature of the complaint. It was a curable irregularity, and the trial court had rightly allowed it. Additionally, the High Court’s reasoning, which delved into GST implications, was found to be entirely misplaced and beyond the scope of the criminal proceedings under Section 138 NI Act.
The decision of the Court:
The Top Court allowed the appeal, set aside the judgment of the Punjab and Haryana High Court, and restored the order of the Trial Court dated 02.09.2023. It directed the Trial Court to proceed expeditiously with the trial, granting liberty to both parties to apply for recall of witnesses, if necessary.
Case Title: Bansal Milk Chilling Centre vs. Rana Milk Food Private Ltd. & Anr.
Case No.: Special Leave Petition (Crl.) no.15699 of 2024
Coram: Justice B.V. Nagarathna, Justice K.V. Viswanathan
Advocate for Petitioner: Adv. Chritarth Palli (AOR), Harsheen M Palli, Agam Aggarwal
Advocate for Respondent: Adv. Aabhas Kshetarpal (AOR), Dhiliban Varadarajan, Harsh N Dudhe
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