AMENDMENT OF COMPLAINT FILED UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881

The Negotiable Instruments Act, 1881 (‘Act’ for short) defines and regulates promissory notes, bills of exchange, and cheques, establishing rules for their transfer (negotiation) and legal enforceability in financial transactions. It ensures a smooth legal framework for these instruments, allowing transfer of rights to a holder in good faith, and covers concepts like endorsement, dishonour, and presumptions of validity, remaining a key part of Indian business law.

Section 138 of the Act provides for the nature of dishonour of cheque, remedy for the cheque holder for the dishonour of the Cheque. The said section provides the procedure which leads to file a complaint against the drawer of the cheque. The cheque is to be presented within the time limit. If the cheque is dishonoured a notice is to be issued to the drawer informing the dishonour of cheque and directed the drawer to pay the amount within 15 days from the date of receipt of notice. If the drawer fails to pay the amount, then the cheque holder can file a criminal complaint before the criminal court.

Issue

The issue to be discussed in this article is as to whether the complaint can be amended after its filing before the Court with decided case laws.

Complaint

The term ‘complaint’ is defined in Section 2(d) of the Code of Criminal Procedure, 1973 as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

A complaint could even be oral. Section 142 of the Act provides to take cognizance of any offence punishable under Section 138, a written complaint is mandatory. Unless expressly prescribed, if to set a criminal case in motion ordinarily an oral complaint would be sufficient, any question about amendment of a written complaint should be considered by giving the widest latitude.

Amendment of complaint

Whether a court has power to order the amendment of complaint filed under Section 200 of Cr.PC?

The Supreme Court in S.R. Sukumar Versus S. Sunaad Raghuram - 2015 (7) TMI 1260 - Supreme Court held that the amendment to a complaint is curable legal infirmity that could be cured by filing an 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.

Section 216 of the Cr.PC provides the power to the Court to alter any charge and the concept of prejudice to the accused. Section 216 provides that any Court may alter or add to any charge at any time before judgment is pronounced. Every such alteration or addition shall be read and explained to the accused.  If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

The said section further provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

When a charge is altered, if there is no prejudice to the accused, the trial can be proceeded with. if it is likely to prejudice, the Court may either direct a new trial or adjourn the trial to such period. The test of ‘prejudice to the accused’ is the cardinal factor that needs to be borne in mind.

Case law

In Bansal Milk Chilling Centre Versus Rana Milk Food Private Ltd. & Anr. - 2025 (7) TMI 1532 - Supreme Court, the appellant, in the present case, filed a complaint under Section 138 of the Act against the respondents before the Trial Court. The appellant contended that the respondents purchased Desi Ghee, milk products from the appellant. Towards the cost of the products, the respondents issued 3 cheques totalling Rs.14 lakhs. When the appellant submitted the said 3 cheques in the bank the same were returned with remarks ‘dishonoured’. The Court issued summons to the respondents. When the appellant was to be cross examined by the respondent the appellant filed an application before the court to amend the complaint.  The amendment application was intended to amend the words ‘Desi Ghee’ to ‘milk’. The said mistake is due to clerical mistake. The respondents object this application on the ground that no amendment is permissible one the Court takes cognisance of the offence. The application for amendment would change the nature of the complaint.

The Trial Court passed an order on 02.09.2023. Since the complainant was yet to be cross-examined, the Trial Court held that no prejudice would be caused to the accused/respondents. The amendment was in the nature of a typographical error, moved at an initial stage of the case. Therefore, the Court allowed the application for amendment of the complaint.

The said order was challenged by the respondent before the High Court. The respondent contended that the amendment was not a typographical error since even in the legal notice that preceded the filing of the complaint, what was mentioned was “Desi Ghee (milk products). It is an attempt to avoid the liability under the GST laws. The High Court allowed the petition holding that the amendment sought was not in the nature of a typographical error, but it had a wider impact upon the entire matter in dispute and, therefore, it changed the nature of the complaint. The High Court also held that the appellant amended the word Desi Ghee milk since milk attracts no GST liability.

Against this order the appellant filed the present appeal before the Supreme Court. The Supreme Court considered the complaint and the application for amendment. The Supreme Court observed that the amendment made is only with regard to the products supplied. The appellant inadvertently indicated the product as Desi Ghee instead of milk. The error which occurred in the legal notice was carried in the complaint also.

Considering the stage of the trial, the Supreme Court observed that absolutely no prejudice would be caused to the accused/respondents. It was a curable irregularity which the Trial Court rightly addressed by allowing the amendment. It could not be said that by allowing the amendment at a stage when the evidence of the complainant was incomplete, failure of justice would occasion. It could also not be said that the amendment altered the nature and character of the complaint.

The Supreme Court allowed the appeal and set aside the impugned order of High Court and restored the case to the trial court to proceed expeditiously and the parties will be at liberty to apply for recall of witnesses already examined.