India: Amendment To Complaint Under Section 138 Of Negotiable Instruments Act, 1881-Myth Or Reality?

The object of Code of Criminal Procedure, 1973 ("CrPC/ Code") is to provide machinery for the punishment of offenders against the substantive criminal law1. The legislative intent and object of CrPC can be gathered from its Preamble which reads as, "An Act to consolidate and amend the law relating to Criminal Procedure". CrPC is intended to be a comprehensive Code providing for detailed procedural mechanism for conducting of criminal trial. Though, the provisions of CrPC are meant to be as comprehensive as possible, despite this, there are cases where express provisions for certain contingencies are still wanting. One such instance is the absence of provisions under the Code for amendment of a complaint2.

Though, express provision for amendment of pleadings (in civil proceedings) exists3, however, there are no specific provisions under the Code dealing with the amendment of complaint. At the same time there is also no bar under the Code against permitting a complainant to amend his complaint. Therefore, the question arises whether a complainant desiring to amend or modify the complaint can be permitted to do? Further, in case the same is permissible, till what stage and to what extent, can a criminal complaint be amended? The question attains even more significance where a complainant in cheque bouncing case seeks to introduce a party, especially a company, by means of such amendment.

One of the earlier cases wherein the Hon'ble Supreme Court discussed the scope of amendment of criminal complaint was U.P Pollution Control Board v. Modi Distilleries, (1987) 3 SCC 684. Therein, the name of the accused company was wrongly mentioned in the complaint as Modi Distilleries instead of Modi Industries Limited, which was sought to be amended. The Hon'ble Supreme Court, considering the same as a mere curable legal infirmity observed, ".....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 contained in paragraph 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery... Furthermore, the legal infirmity is of such a nature which could be easily cured." Clearly, as per the Hon'ble Supreme Court, an easily curable legal infirmity in complaint can be permitted to be cured by means of a formal application of amendment.

In S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, the Hon'ble Supreme Court relying on the aforesaid judgment, 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. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint." In fact, in the instant case, despite noting that the amendment sought to be made in the complaint was not formal in nature but substantial, the Hon'ble Supreme Court, upheld the order(s) of the Courts below permitting the amendment to the complaint. The factors which weighed with the Hon'ble Court while passing its decision were that in the instant case neither the cognizance of the offence was taken nor summons issued. Further, the Hon'ble Court observed that the amendment sought to be made did not change the original nature of the complaint and no prejudice was caused to the accused by amendment in question. In fact, as per the Hon'ble Court, such amendment was necessary to avoid multiplicity of proceedings.

Further considering the fact that a Magistrate takes cognizance of an offence and not the offender under Section 190 CrPC, the Hon'ble Bombay High Court, in Mr. Amol Shripal Sheth v. M/S. Hari Om Trading Co. & Ors., (2014) 6 MhLJ 222, held that where the name of an accused is wrongly mentioned in the complaint4, complainant may be permitted to amend his complaint. As per the Hon'ble Court, Magistrate has "incidental and ancillary power to the main power of taking cognizance of offence to allow such amendment" and that such "power can be exercised before and after taking cognizance of the offence."

Undoubtedly, as per the definition of complaint under the Code, it is not incumbent on the complainant to mention the names of persons who have committed the offence in the complaint. In fact, it is settled law that a petition containing allegation that the offence has been committed and ending with a prayer that that the culprits be suitably dealt with can be treated as a complaint5. However, law obligates the Magistrate, taking cognizance to ascertain, either on inquiry or by ordering an investigation to determine the accused. Considering such legal proposition, the Hon'ble Bombay High Court had rendered its judgment in Mr. Amol Shripal Sheth v. M/S. Hari Om Trading Co. & Ors.6. However, the said judgment of Hon'ble High Court does not seem to lay down the correct legal proposition in relation to cheque bouncing cases, in the light of the decision of Hon'ble Apex Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 2 SCC 661 and N. Harihara Krishnan v. J. Thomas, (2018) 13 SCC 663.

In Aneeta Hada v. Godfather Travels and Tours Private Limited7, the point for determination before the Hon'ble Supreme Court was whether a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 ("NI Act") was maintainable against a Director or Authorized signatory of a company, without joining the company as an accused? Answering the same in negative, the Hon'ble Supreme Court held that in terms of the provisions of Section 141 NI Act, commission of offence by the company is an express condition precedent to attract vicarious liability of another. As per the Hon'ble Supreme Court, "Thus, the words "as well as the company" appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof." Clearly, the prosecution of other persons8 under Section 138 NI Act is permissible only when the Company is named as an accused in the complaint. Further, the Hon'ble Supreme Court in N. Harihara Krishnan v. J. Thomas9, has held that in the context of prosecution under Section 138 NI Act, the concept of taking cognizance of the offence but not the offender is not appropriate. As per the Hon'ble Court, the scheme of the prosecution in punishing under Section 138 NI Act "is different from the scheme of CrPC". Therefore, it was held that "[d]isclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific."

From a conjoint reading of the aforesaid decisions of the Hon'ble Supreme Court it can be observed that where a complainant fails to make specific averments against the company in the Complaint for commission of an offence under Section 138 NI Act, same cannot be rectified by taking recourse to general principles10 of criminal jurisprudence. Offence under Section 138 NI Act being person specific, where a complaint/ complainant fails to disclose specific averments against Company, Courts would refuse to take cognizance on the complaint. However, the same is in contrast to a situation where the Company due to, inter alia, inadvertence of the complainant may not have been named as one of the accused(s) in the cause title of complaint, however, from a perusal of such complaint, it can be observed that specific averments/ ingredients for the commission of offence under Section 138 NI Act against the company are made out. Under such circumstances, considering the same as mere curable infirmity, Courts have permitted11 the complainant to amend the complaint by adding the name of Company as one of the accused(s) (Manish Kalani & Another v. Housing and Urban Development Corporation Ltd. & Anr.12, M.Cr.C.No. 16282/2016, Madhya Pradesh High Court, dated 30.01.2018; MANU/MP/0275/2018 and Usher Agro Ltd. & Ors. v. State of U.P. & Ors., 2018 (8) ADJ 336; (2018) 2 ACR 2252).

Therefore, it is clear from above that in case the amendment sought to be made to the complaint relates to merely curing a simple infirmity, which results in no prejudice to the accused, the same may be allowed by the Court at any stage of the proceedings. However, where the amendment is not formal in nature and results in causing prejudice to the accused or changes the nature of the complaint or is meant to cure incurable defects, the same must necessarily be disallowed. Further, such amendment cannot be used as a device to overcome the defects, which are not permissible under law. No doubt, procedural law is handmaiden to justice, however, distinction must be made between merely curing a procedural irregularity and acting in contravention of provisions of law.


1. In Re: Ganesh Narayan Sathe v. Unknown, (1889) ILR 13 Bom 590; MANU/MH/0019/1889

2. Section 2(d) CrPC, "complaint" means 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..."

3. Order VI Rule 17 of the Code of Civil Procedure, 1908

4. In the instant case, the complaint was under Section 138 NI Act.

5. Hon'ble Supreme Court in Bhimappa Basappa Bhau Sannavar v. Laxman Shivarayappa Samagouda & Ors., AIR 1970 SC 1153 held, "11. The word "complaint" has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence."

6. (2014) 6 MhLJ 222

7. (2012) 2 SCC 661

8. "every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company" (Section 141 NI Act).

9. (2018) 13 SCC 663

10. Court takes cognizance of the offence and not the offender and that it is incumbent of Magistrate to determine the accused by either inquiry or by ordering investigation.

11. Provided the initial complaint should have been filed within period of limitation.

12. In the instant case, the Hon'ble Madhya Pradesh High Court upheld the order of the Additional Sessions Judge, Bhopal in Criminal Revision No. 60/2016 allowing the complainant to amend the cause title of the complaint by impleading the name of the company as accused.

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