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2023 (1) TMI 1436 - HC - Indian LawsDishonour of Cheque - Declination of request of the petitioner to amend complaint bearing No.1 dated 02.01.2013 - permissibility of amendment of the complaint filed under Section 138 of NI Act - HELD THAT - A Constitution bench of the Supreme Court in UNION OF INDIA AND ANOTHER VERSUS TULSIRAM PATEL AND OTHERS 1985 (7) TMI 371 - SUPREME COURT while dealing with omission to mention the relevant clause of the second proviso or the relevant service rules in the impugned order has held that order cannot be invalidated if power exists and wrong provision is invoked. Hon ble Court has held ' The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in none of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so.' Case in hand relates to proceedings under Section 138 of NI Act, 1881. The proceedings under Section 138 of NI Act are quasi criminal in nature and intent is to recover cheque amount by way of summary proceedings. Hon ble Supreme Court in many cases has adverted with nature of proceedings under Section 138 of NI Act. A two judge bench of Hon ble Supreme Court in LAFARGE AGGREGATES CONCRETE INDIA P. LTD. VERSUS SUKARSH AZAD ANR. 2013 (9) TMI 1188 - SUPREME COURT , dealt with an order where High Court had ex-parte set aside complaint filed under Section 138 of NI Act on the ground that accused offered to pay cheque amount, however, complaint refused to accept and insisted for pursuing the trial. In the case in hand, there is no dispute with respect to running number mentioned on the cheque in question, date in terms of day and month as well amount mentioned therein. As per petitioner, year 2010 instead of 2012 has been mentioned in all the documents i.e. notice, complaint, notice of requisition etc. The petitioner wants to substitute year 2010 mentioned in different documents by 2012 mentioned on the cheque in question. The respondent is opposing correction/amendment of year on the ground that amendment at this belated stage of trial is not permissible, it would amount to filling up of lacuna and mistake could have be in one document whereas petitioner in all the documents has mentioned year 2010. If amendment of complaint is not permitted, it may prove fatal to the case of the complainant. On account of clerical mistake which was neither noticed by petitioner nor his counsel, the substantial claim of the drawer may be defeated. An accused cannot be let free just because there is some mistake on the part of complainant. If charge may be amended at any time prior to pronouncement of judgment and parties may be permitted to lead additional evidence even at appellate stage, it seems to be harsh and there would be travesty of justice if a mistake which is unintentional, is not permitted to be corrected. The mistake in question cannot be called as incurable mistake - respondent cannot claim that he was pursuing a case with respect to a different cheque and cross examination took place with respect to different cheque. The application was filed prior to completion of prosecution evidence and defence still has to lead evidence, thus, respondent cannot claim loss of opportunity or actual prejudice except bald averment. The respondent is attempting to claim benefit of mistake of the petitioner. Conclusion - The amendment of the complaint was permissible and necessary to correct an unintentional clerical error. The present petition deserves to be allowed and accordingly allowed. 1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether, in view of the facts, the amendment of the complaint filed under Section 138 of the NI Act was permissible? Relevant legal framework and precedents: The legal framework includes Section 138 of the NI Act, which deals with the dishonor of cheques, and various provisions of the Code of Criminal Procedure (Cr.P.C.), such as Sections 216, 311, 319, and 391, which allow for the alteration of charges, recalling of witnesses, summoning additional accused, and taking additional evidence, respectively. Precedents from various High Courts and the Supreme Court were considered, including judgments that discuss the quasi-criminal nature of proceedings under Section 138 of the NI Act and the intent to uphold justice by allowing amendments where necessary. Court's interpretation and reasoning: The court reasoned that the intent of the legal provisions is to uphold justice and ensure that neither innocent persons are punished nor guilty persons escape on technical grounds. The court emphasized that procedural rules should assist in achieving justice rather than obstruct it. The quasi-criminal nature of Section 138 proceedings aims to ensure the recovery of the cheque amount through summary proceedings, and amendments should be allowed to correct unintentional errors that do not affect the substance of the complaint. Key evidence and findings: The key evidence involved the incorrect year mentioned in the complaint and related documents, which the petitioner claimed was a typographical error. The court noted that the mistake was consistent across multiple documents due to the use of copy-pasting in document preparation, which is common practice. Application of law to facts: The court applied the principles of justice and the intent of the NI Act to allow the amendment, emphasizing that the error was unintentional and did not alter the substance of the complaint. The court also considered the timing of the application, which was made before the completion of prosecution evidence, allowing the defense adequate opportunity to address the amendment. Treatment of competing arguments: The respondent argued against the amendment, citing potential prejudice and the filling of lacunae. However, the court found these arguments unpersuasive, noting that the amendment was necessary to correct a clerical error and that the respondent had not demonstrated actual prejudice. Conclusions: The court concluded that the amendment of the complaint to correct the year was permissible and necessary to serve the interests of justice. The court set aside the trial court's order denying the amendment and allowed the petitioner's application for amendment. 3. SIGNIFICANT HOLDINGS Preserve verbatim quotes of crucial legal reasoning: "The procedure cannot be mistress of justice but it is made to assist and achieve the intent of substantive law." "An accused cannot be let free just because there is some mistake on the part of complainant." Core principles established:
Final determinations on each issue: The court determined that the amendment of the complaint was permissible and necessary to correct an unintentional clerical error. The trial court's order denying the amendment was set aside, and the petitioner's application for amendment was allowed.
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