The issue, whether a criminal court has power to order
amendment of a complaint filed under Section 200 of the Cr.P.C.,
is no longer res integra. In S.R. Sukumar v. S.Sunaad Raghuram (2015) 9 SCC 609, this Court held as under:-
“19. What is discernible from U.P. Pollution Control Board
case is that an easily curable legal infirmity could be cured
by means of a formal 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. 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.”
Hence, it is fallacious to contend that in no circumstance can
amendments to complaints be allowed after cognizance is taken.
{Para 8}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2025
(@ SPECIAL LEAVE PETITION (CRL.) NO.15699 OF 2024)
Bansal Milk Chilling Centre Vs Rana Milk Food Private Ltd. & Anr.
Author: K.V. Viswanathan, J.
Citation: 2025 INSC 899
Dated: 25th July, 2025.
1. Leave granted.
2. Procedure, it issaid, is only a handmaiden and not a mistress
of justice. However, the said adage has been followed only in the
breach in this case. A simple issue of an amendment to a complaint
has held up a trial under Section 138 of the Negotiable Instruments
Act, 1881 (for short “the NI Act”) for the last nearly two years.
BRIEF FACTS:
3. The appellant, on 08.04.2022, filed a complaint under
Section 138 of the NI Act, against the respondents. The complaint
averred that the respondents had purchased Desi Ghee (milk
products) and that cheques issued by them numbering three and
totaling to an amount of Rupees Fourteen Lakhs had been
dishonored. Summons was issued to the respondents and at the
stage when the complainant was yet to be cross-examined, an
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 avoid liability
under the Goods and Services Tax Act, 2017 (for short the ‘GST’).
6. By virtue of the impugned order, the High Court has
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 found merit in the
contention of the respondents that the amendment was sought, as
no GST was leviable on milk.
CONTENTIONS:
7. We have heard Mr. Chritarth Palli, learned Counsel for the
appellant and Mr. Aabhas Kshetarpal, learned Counsel for the
respondents. We have also perused the records. Learned Counsels
reiterated the stand of the respective parties in the courts below.
8. The issue, whether a criminal court has power to order
amendment of a complaint filed under Section 200 of the Cr.P.C.,
is no longer res integra. In S.R. Sukumar v. S.Sunaad Raghuram (2015) 9 SCC 609, this Court held as under:-
“19. What is discernible from U.P. Pollution Control Board
case is that an easily curable legal infirmity could be cured
by means of a formal 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. 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.”
9. The learned counsel for the respondents sought to
distinguish the judgement in S.R. Sukumar’s case (supra) by
contending that in the said case amendment was sought and
allowed at the pre-cognizance stage and as such the said case can
have no application here. We are unable to countenance the said
submission.
10. A careful reading of the judgment in S.R. Sukumar’s case
(supra) reveals that the said judgment followed the earlier
judgment of this Court in U.P. Pollution Control Board vs. Modi
Distillery and Others2
. In Modi Distillery (supra), after 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
2
(1987) 3 SCC 684
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 para 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. Although as a pure proposition of law in the
abstract the learned Single Judge’s view that there can be no
vicarious liability of the Chairman, Vice-Chairman,
Managing Director and members of the Board of Directors
under sub-section (1) or (2) of Section 47 of the Act unless
there was a prosecution against Modi Industries Limited,
the company owning the industrial unit, can be termed as
correct, the objection raised by the petitioners before the
High Court ought to have been viewed not in isolation but
in the conspectus of facts and events and not in vacuum. We
have already pointed out that the technical flaw in the
complaint is attributable to the failure of the industrial unit
to furnish the requisite information called for by the Board.
Furthermore, the legal infirmity is of such a nature which
could be easily cured. Another circumstance which brings
out the narrow perspective of the learned Single Judge is his
failure to appreciate the fact that the averment in para 2 has
to be construed in the light of the averments contained in
paras 17, 18 and 19 which are to the effect that the
Chairman, Vice-Chairman, Managing Director and
members of the Board of Directors were also liable for the
alleged offence committed by the Company.”
Further, it was held
“7. ..….It would be a travesty of justice if the big business
house of Modi Industries Limited is allowed to defeat the
prosecution launched and avoid facing the trial on a
technical flaw which is not incurable for their alleged
deliberate and wilful breach of the provisions contained in
Sections 25(1) and 26 made punishable under Section 44
read with Section 47 of the Act.”
(Emphasis supplied)
This Court allowed the appeal and set aside the order of the High Court
and restored the order of the Chief Judicial Magistrate directing issue
of process and directed that the trial be proceeded expeditiously. What
is significant to notice is that Modi Distillery (supra) was a case where
cognizance was taken at a stage when 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, the
publication of poem Khalnayakaru being in the nature of
subsequent event created a new cause of action in favour of
the respondent which could have been prosecuted by the
respondent by filing a separate complaint and therefore, to
avoid multiplicity of proceedings, the trial court allowed the
amendment application. Considering these factors which
weighed in the mind of the courts below, in our view, the
High Court rightly declined to interfere with the order
passed by the Magistrate allowing the amendment
application and the impugned order does not suffer from
any serious infirmity warranting interference in exercise of
jurisdiction under Article 136 of the Constitution.”
(Emphasis supplied)
Hence, it is fallacious to contend that in no circumstance can
amendments to complaints be allowed after cognizance is taken.
12. Similarly, in Kunapareddy alias Nookala Shanka Balaji vs.
Kunapareddy Swarna Kumari and Another3
, it was held that even in criminal cases governed by the Code, Court is not powerless and may allow amendments in appropriate cases. The Court in Kunapareddy (supra) followed the holding in S.R. Sukumar (supra).
13. In Munish Kumar Gupta vs. Mittal Trading Company,
4 while disallowing an amendment seeking alteration in the date of the cheque from 22.07.2010 to 22.07.2012, this Court, in para 9, held as under:-
3
(2016) 11 SCC 774
4 2024 SCC OnLine 1732
“9. In a matter of the present nature, where the date is a
relevant aspect based on which the entire aspect relating to
the issue of notice within the time frame as provided under
the Negotiable Instruments Act, 1881, and also as to
whether as on the date there was sufficient balance in the
account of the issuer of the cheque would be the question,
the amendment, as sought for, in the present circumstance,
was not justified.”
That judgment is entirely distinguishable as the amendment sought had a bearing on the time frame for issuance of notice of demand and on the aspect of existence of balance in the account. Further, as is clear from the facts, that amendment was sought after a long delay.
14. The term “complaint” is defined in Section 2(d) of the Code of
Criminal Procedure, 1973 [Section 2(1)(h) of the Bharatiya Nagarik
Suraksha Sanhita, 2023] which reads as follows:-
“2 (d) “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.”
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, the section does throw
some light in considering the issue of amendments.
16. Section 216 and 217 of Cr.P.C [Section 239 and 240 of the
Bharatiya Nagarik Suraksha Sanhita, 2023] read as follows:-
“216. Court may alter charge.-
(1) Any Court may alter or add to any charge at any time
before judgment is pronounced.
(2) Every such alteration or addition shall be read and
explained to the accused.
(3) 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.
(4) If the alteration or addition is such that proceeding
immediately with the trial is likely, in the opinion of the
Court, to prejudice the accused or the prosecutor as
aforesaid, the Court may, either direct a new trial or adjourn
the trial for such period as may be necessary.
(5) 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.
(Emphasis supplied)
217. Recall of witnesses when charge altered. – Whenever
a charge is altered or added to by the Court after the
commencement of the trial, the prosecutor and the accused
shall be allowed –
(a) to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have been
examined, unless the court, for reasons to be recorded in
writing, considers that the prosecutor or the accused, as the
case may be, desires to recall or re-examine such witness
for the purpose of vexation or delay or for defeating the
ends of justice;
(b) also to call any further witness whom the Court may
think to be material.”
It will be noticed that when a charge is altered, if there is no prejudice
to the accused, the trial can be proceeded with. Further, if it is likely to
prejudice, the Court may either direct a new trial or adjourn the trial to
such period. Section 217 of the Cr.P.C. grants liberty to the prosecutor
and the accused to recall witnesses when charges are altered under the
conditions prescribed therein. The test of ‘prejudice to the accused’ is
the cardinal factor that needs to be borne in mind.
17. We have carefully perused the complaint and the application for
amendment. The amendment was moved at a stage when after
summons being issued to the respondents, the chief examination of the
complainant had concluded and when cross-examination was awaited.
The amendment made is also only with regard to the products supplied.
According to the complainant, while what was supplied was “milk”, by
an inadvertent error “Desi Ghee (milk products)” was mentioned. The
error which occurred in the legal notice was carried in the complaint
also.
18. On the facts of the present case and considering the stage of the
trial, we find that absolutely no prejudice would be caused to the
accused/respondents. The actual facts will have to be thrashed out at
the trial. As to what impact the amendment will have on the existence
of debt or other liability is for the Trial Court to decide based on the
evidence. 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.
19. 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. It could also not be
said that the amendment altered the nature and character of the
complaint.
20. For the reasons aforestated, the appeal is allowed. The judgment
and order of the High Court of Punjab and Haryana at Chandigarh in
CRM-M No. 53932 of 2023 (O&M) is set aside and that of the Trial
Court dated 02.09.2023 is restored. The Trial Court shall proceed
expeditiously and the parties will be at liberty to apply for recall of
witnesses already examined.
…………………………….J.
[B.V. NAGARATHNA]
…………………………….J.
[K. V. VISWANATHAN]
New Delhi;
25th July, 2025