Can A Complaint Be Amended In 138 Case(s)?

Considering the importance of drafting, the same should at-least cover the fundamental factual scenario and adhere to the fundamental provisions of law, if not flawless. However, on many occasions, it is observed that the written plaints, applications, complaints are not bereft of various fallacies which call for amendment in such written instruments.

At this juncture it is imperative to consider various aspects including the mandate of law, the progress of case, the nature of amendment, etc., In civil cases, amendment is being governed by Order VI of the CPC wherein Order VI R 11 specifically gives a room to the plaintiffs to amend their plaints with the permission of the courts. However, such provision is missing in the CrPC^[1]. Thus, the discretion of the criminal courts become the paramount importance in deciding amendment requests.

In this piece of writing, we are going to discuss the scope of amendment in the complaints filed under section 138 of the Negotiable Instruments Act, 1881 (for brevity “the NI Act”).

The Negotiable Instruments Act, 1881

The NI Act is a special statute that, inter alia, governs the cheque bounce cases. Chapter 17 of the NI Act which consists of 11 sections (sections 138 – 148) primarily deals with cheque bounce cases and furnishes a peculiar mechanism to deal with cheque bounce issues.

The NI Act stipulates that cheque bounce cases are to be tried as summary cases and obliviates the requirement of a lengthy trial which is usually followed in other criminal cases. The mechanism provides various basic details such as timeline, cause of action, jurisdiction, however, the same is silent on the issue of amendment. Interestingly, there is no provision in CrPC specifically dealing with amendment unlike CPC wherein the scope of amendment finds its definite place.

Since there is no provision of amendment in the statutes, thus the judicial precedents become the only way to settle the dust on this issue.

Notable Judicial Precedents

The issue of amendment is not new and has already been dealt in by various courts including the Supreme Court of India on various different occasions.

In the case of UP Pollution Control Board vs. Modi Distillery & Ors.^[2], the Hon'ble Apex Court held that if the amendment sought is a simple infirmity which is curable by means of a formal amendment or/ and where no prejudice to be caused to the other side, then the courts are empowered to allow such request(s) of amendment. However, where the issue is not related to a curable infirmity and the same cannot be corrected by a formal amendment or/and if the opposite side may get prejudiced by such amendment, then courts shall not allow such amendment application(s).

The aforesaid UP Pollution Control Board case dates back to 1987 and the said decision is still relevant today. On these lines the Apex court again in 2015, in the case of S.R. Sukumar vs. S.S. Raghuram^[3] had allowed an amendment request which was not a formal amendment, but a substantial one. The Supreme Court has allowed this application primarily on the ground that the magistrate hadn't taken the cognizance in the given case, and no prejudice could be caused to the accused person.

The S.R. Sukumar case though followed the ratio of UP Pollution Control Board but the same is based on the peculiar facts. The said case wherein the substantial amendment was allowed can't be taken as a blanket rule ipso facto as the substantial amendment was allowed as the lower court had not taken cognizance of the case.

Furthermore, it is worth mentioning herein that the aforesaid cases of UP Pollution Control Board and S.R. Sukumar didn't deal with section 138 complaint, but they dealt with the private complaint filed under section 200 of the CrPC. However, the principles laid down qua the amendment of a private complaint are not only relevant to the issue in hand, but subsequently relied upon by various high court while dealing with the question of amendment of a complaint filed under section 138 of the NI Act.

Followed, these cases, recently in 2022, the Hon'ble High Court of Madhya Pradesh in the case of Bhupendra Singh Thakur vs. Umesh Sahu^[4], wherein the issue of amendment of a complaint filed under section 138 of the NI Act was raised, held that there is no specific provision in the CrPC which allows/ prohibits the amendment of a complaint. Furthermore, the High court has allowed the amendment wherein the complainant sought to rectify the error of mentioning the wrong bank name. The court noted that the complaint can be amended at any stage before the pronouncement of the order wherein the nature of the complaint shall remain unaffected and no prejudice is caused to the accused person.

From the bare perusal of the aforesaid, it seems that the amendment of complaint(s) in 138 cases is quite straight forward. However, the law never fails to surprise us with its complexity and comprehensiveness.

There are various instances where the courts have not allowed the amendments sought in 138 cases due to one reason or the other. Without careful analysis of the other school of thought, we won't be able to appreciate the depth of the issue nor can we comprehend the subject completely. Thus, some notable instances where the amendment is not allowed are briefly enumerated hereinafter.

Other Side of the Coin

The Hon'ble Court of Bombay in the case of “Harikishan Vithaldasi Chnadak vs. S.M.S. Shahbudin^[5] had dismissed the application seeking amendment of a complaint under section 138 of the NI Act.

The application was filed seeking impleading a firm as an accused as the transaction in question was dealt in by the accused firm through its partners. The complaint had impleaded the partners, but failed to implead the firm as the partner. Thereafter, the amendment application was filed to seek impleadment of the firm as an accused. The Magistrate had allowed this application, however the same was later set aside by the Hon'ble High Court.

The High Court has noted that the impleading a firm as an accused firm is not a formal request and quite substantial in nature. Furthermore, the same may cause some prejudice to the firm or/ and its partners if the amendment application is allowed.

Interestingly quite recently, the Hon'ble Supreme Court in the case of “Munish Kumar Gupta vs. M/s Mittal Trading Company”^[6] had disallowed the amendment application whereby the complainant wanted to amend the date of cheque.

The Apex court noted that the complaint, and the evidence are based upon the impugned date mentioned in the complaint, thus allowing the complainant to amend the date of the cheque, which holds paramount importance in the case, will not stand on the scales of justification and reasonableness. Ergo, even the request to amend only the date of the cheque was not allowed by the Apex Court in the said138 case.

Similarly, the Hon'ble High Court of Orissa in the case of “Chhayakant Acharya vs. Samitav Pani^[7] had set aside the order of the Magistrate Court wherein the Magistrate Court had allowed the complainant to amend the loan amount in the complaint as well as in the evidence.

The High Court while setting aside the lower court order noted that since the complainant has based his case, complaint and evidence qua the alleged loan amount, thus allowing the complainant to alter the loan amount is not legally tenable, and hence the amendment was not allowed by the Hon'ble High Court.

After careful analysis of the aforesaid notable judicial precedents and the fact that no specific provision is mentioned in the CrPC qua the amendment of a complaint, it is submitted that there is no strict and clear rule about the amendment of a criminal complaint especially in 138 NI Act cases.

On one hand, the Hon'ble Supreme Court in 1987 through UP Pollution Control Board followed by S.R. Sukumar cases had furnished some scope of amendment in criminal private cases.

Whereas, on the other hand, the Apex Court in 2024 vide Munish Kumar case has not even allowed the complainant to amend the cheque date coupled with various high court decisions wherein the amendment requests in 138 cases were turned down owing to facts and circumstances of the cases.

Ergo, the underlying principle is that though the courts have power to allow the amendment in 138 cases, but the same should be formal in nature and the same shall not be prejudice to the opposite side. Furthermore, the timeline, stage of the case as well as the timings of filing an amendment application derive the decision of a court in adjudicating amendment applications in 138 cases.

The author is an Advocate and views are personal.

[1] Bhupendra Singh Thakur vs. Umesh Sahu; Misc. Criminal Case No. 35101/ 2022; decided on 26.07.2022