The Supreme Court of India, in a significant ruling, has held that a criminal complaint can be amended even after a Magistrate has taken cognizance, provided the amendment is for a curable infirmity and does not cause any prejudice to the accused. A bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan set aside a Punjab and Haryana High Court order that had disallowed an amendment in a cheque dishonor case, restoring the Trial Court’s decision to permit the change.
The Court emphasized that procedural rules should not be used to defeat justice, with Justice K.V. Viswanathan noting, “Procedure, it is said, is only a handmaiden and not a mistress of justice. However, the said adage has been followed only in the breach in this case.”
Background of the Case
The case originated from a complaint filed by the appellant, Bansal Milk Chilling Centre, against the respondents, Rana Milk Food Private Ltd. & Anr., on April 8, 2022, under Section 138 of the Negotiable Instruments Act, 1881. The complaint was for the dishonor of three cheques amounting to ₹14 lakhs.
The original complaint averred that the cheques were issued for the purchase of “Desi Ghee (milk products)”. After summons were issued to the respondents, but before the complainant could be cross-examined, the appellant moved an application to amend the complaint. They contended that due to a “typographical mistake,” the product was wrongly mentioned as “Desi Ghee (milk products)” instead of “milk”.
The Trial Court, by its order dated September 2, 2023, allowed the amendment. It reasoned that the case was at an initial stage, the complainant was yet to be cross-examined, and therefore, no prejudice would be caused to the accused.
The respondents challenged this order before the High Court under Section 482 of the Code of Criminal Procedure (Cr.P.C.). The High Court allowed their petition, finding that the amendment was not merely typographical but had a “wider impact upon the entire matter in dispute” and thus changed the nature of the complaint. The High Court also gave weight to the respondents’ argument that the amendment was sought to avoid liability under the Goods and Services Tax Act, 2017, as milk is exempt from GST.
Arguments Before the Supreme Court
The appellant, represented by Advocate Mr. Chritarth Palli, maintained that the amendment was to correct a simple typographical error.
The respondents, through Advocate Mr. Aabhas Kshetarpal, argued that an amendment is not permissible after cognizance is taken. They contended that the change from “Desi Ghee” to “milk” was substantial, not a typographical error, as the preceding legal notice also mentioned “Desi Ghee”. They further alleged the amendment was an attempt to evade GST.
Court’s Analysis and Reasoning
The Supreme Court began its analysis by stating that the issue of whether a criminal court can permit amendment of a complaint is “no longer res integra” (a matter not yet decided). The bench heavily relied on its previous decision in S.R. Sukumar v. S. Sunaad Raghuram (2015), which held:
“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.”
The Court rejected the respondents’ attempt to distinguish the S.R. Sukumar case on the grounds that the amendment there was allowed at a pre-cognizance stage. The bench clarified that S.R. Sukumar itself followed the precedent set in U.P. Pollution Control Board vs. Modi Distillery (1987). In the Modi Distillery case, the Supreme Court had permitted a formal amendment to substitute the name of the accused company after process had already been issued by the Magistrate. The Court quoted its observation from that case, stating it would be a “travesty of justice” to allow a prosecution to be defeated on a “technical flaw which is not incurable.”
The bench concluded on this point, “Hence, it is fallacious to contend that in no circumstance can amendments to complaints be allowed after cognizance is taken.”
The Court further drew an analogy with Sections 216 and 217 of the Cr.P.C., which empower a court to alter a charge at any time before judgment, with the primary consideration being whether such an alteration would prejudice the accused.
Applying these principles to the present facts, the Supreme Court found:
- The amendment was sought at an early stage of the trial.
- The error was a “curable irregularity.”
- “Absolutely no prejudice would be caused to the accused/respondents,” as the actual facts can be determined during the trial.
- The High Court “completely mis-directed itself in delving into the aspects of leviability of GST which would be the concern of the appropriate authorities under the relevant statute.”
- The amendment did not alter the nature and character of the complaint.
Final Decision
The Supreme Court allowed the appeal, setting aside the impugned order of the High Court and restoring the Trial Court’s order that permitted the amendment. The Court directed the Trial Court to proceed expeditiously with the case and granted liberty to the parties to apply for the recall of any witnesses already examined.
