2025 (7) TMI 1532

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....n amendment application to amend the complaint was moved by the appellant. The appellant contended that due to a typographical mistake it had been pleaded that the respondents had been purchasing Desi Ghee (milk products) while it should have been that the respondents were purchasing "milk". The respondents vehemently objected to the amendment. It was contended that no amendment was permissible after cognizance is taken and that the amendment sought, changed the nature of the complaint. 4. By order dated 02.09.2023, the Trial Court held that since the complainant was yet to be cross-examined, no prejudice would be caused to the accused/respondents. It was also held that the amendment was in the nature of a typographical error, moved at an initial stage of the case. So holding the amendment was allowed. 5. The respondents challenged the order under Section 482 of Code of Criminal Procedure (for short 'the Cr.P.C.'). It was additionally 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 was further argued that the amendment is an attempt to av....

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.... the process was issued to the respondents therein, a revision was filed by few of the accused and a Section 482 petition was filed by few other accused. Invoking the revisional jurisdiction, the High Court quashed the proceedings holding that vicarious liability could not be saddled on the Directors unless "Modi Industries Limited" was arrayed as accused. The Complainant in that case had arrayed "Modi Distillery", an industrial unit and averred that Modi Distillery was a Company. The High Court focusing on the technical flaw in the complaint quashed the proceedings on the premise that "Modi Industries Limited" was not made an accused. This Court, while allowing the appeal of the Complainant-U.P. Pollution Control Board, held as follows:- "6. ......The learned Single Judge has focussed 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 contain....

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....en the accused approached the High Court and it was then that this Court observed that a formal application for amendment for substituting the name would have cured the defect. 11. Reverting back to S.R. Sukumar (supra), it does not follow from the judgment that post-cognizance, no amendment can be allowed. In fact, a reading of the penultimate paragraph of the judgment clearly brings out the fact that four distinct reasons were given: - "20. In the instant case, the amendment application was filed on 24-5-2007 to carry out the amendment by adding Paras 11(a) and 11(b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, the Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, ....

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...., 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." As would be seen ordinarily, a complaint could even be oral. However, dealing with a case under Section 138 of the NI Act, we must notice that Section 142 of the NI Act states that 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. However, as was rightly pointed out in S.R. Sukumar (supra), it should be ensured that no prejudice should be caused to the accused. 15. It will be appropriate to observe that amendments/alterations are not alien to the Code of Criminal Procedure. Section 216 of the Cr.P.C. deals with the power of Court to alter any charge and the concept of prejudice to the accused. No doubt when a charge is altered, what is altered is the legal provision and its application to a certain set of facts. The facts per se may not be altered. However....