In a recent judgment, the Bombay High Court addressed a criminal application filed under Section 482 of the Code of Criminal Procedure, challenging an order passed by the Judicial Magistrate. The impugned order allowed an application for amendment to a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (“N.I. Act”).

Facts
The original complainant died during pendency of the complaint. His heirs were allowed to prosecute the complaint. The deceased complainant had agreed to sell his land to the accused. The accused issued a cheque Rs. 20,00,000/- drawn on the account of the firm of the accused. The deceased complainant presented the cheque for encashment through his bank wherein it was dishonoured on the ground that “the drawer had stopped the payment”. The deceased complainant issued statutory notice to the accused. It is stated that despite receipt of the notice, the accused did not pay the amount. Therefore, the deceased complainant filed the complaint.

The Learned Magistrate took cognizance and issued process against the accused persons. The complaint was fixed for recording of the evidence. The complainants at that time made an application for amendment as the relevant facts with regard to the vicarious liability of accused nos. 1 to 3 remained to be pleaded due to oversight. It was also stated that one Partner, Dhiraj Champalal Chhallani was not added as a party. A prayer is made to add this Partner as an accused. The Learned Judicial Magistrate allowed the application for amendment, holding that the amendment was of a formal nature, the proceeding under Section 138 of the N.I. Act is quasi civil in nature and that the amendment would not cause any prejudice to the accused persons.

Arguments
The Accused submitted that by the proposed amendment the very core and crux of the complaint has been changed. It was pointed out that the amendment was not intended to remove any curable defect or infirmity in the complaint and as such the order granting amendment has caused severe prejudice to the accused persons. It was further submitted that before filing the complaint, notice was not issued to the partnership firm and therefore, there has been an inherent defect in the complaint.

The complainants’ submitted that before filing the complaint, the notices were issued to the partners of the firm and the notice was replied to, but the amount of cheque was not paid. It was submitted that the complaint was otherwise in accordance with law however, while drafting the complaint, a specific statement of fact that, accused nos.1 to 3 being the partners of the firm were responsible for the conduct of day-to-day business of the firm and as such vicariously liable for commission of the offence punishable under Section 138 of the N.I. Act, remained to be made. Thus, it was submitted that this was a curable infirmity and defect and that the legal position has been well settled that an application can be made for amendment of a complaint to remove such curable infirmity or defect.

Question of law
The Code of Criminal Procedure, 1973 (“CrPC”) has provided the procedure and machinery to deal with the offenders for commission of substantive criminal offences. The intent and object of the legislature, in sum and substance, indicate that it is an Act to consolidate and amend the law relating to criminal procedure. The CrPC. has provided a detailed procedural mechanism for conducting the criminal trial. It is further seen that no express provision for amendment of the pleadings has been made in the Cr.P.C. like the Civil Procedure Code. It is further seen on perusal of the Cr.P.C. that no specific provision has been incorporated to create a bar to amend the criminal complaint. The moot question, therefore, is whether the application for amendment of criminal complaint can be made and allowed by the Court. If the answer to this question is in the affirmative, then the question is required to be considered and addressed keeping in mind the fact that the complaint is in respect of the dishonour of a cheque. The complainants in this case sought amendment to the complaint, which is the cheque bounce case under Section 138 of the N.I.Act.

Cases cited

• In the case of U.P. Pollution Control Board vs. Modi Distilleries and others, the amendment application was made for correction in the name of the company as Modi Distilleries instead of Modi Industries Limited. The Hon’ble Apex Court recognizing the right to amend the complaint, held that a mere curable infirmity or defect can be rectified/corrected by making an application for amendment. It is held that, to this extent, the amendment in a complaint is permissible.
   
• In the case of S.R. Sukumar vs. S. Sunaad Raghuram, the Hon’ble Supreme Court held that if the amendment sought to be made relates to simple infirmity, which is curable by means of formal amendment and by granting such an amendment, no prejudice is likely to 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. It is further held that if the amendment sought to be made in the complaint does not relate either to a curable infirmity which can be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow the amendment in the complaint. In this case, the Hon’ble Supreme Court granted amendment despite making a note that the amendment sought to be made in the complaint was not of a formal in nature, but a substantial amendment, however, the amendment application was made before taking cognizance and issuance of process.
   
• In N. Harihara Krishnan vs. J. Thomas, the Hon’ble Supreme Court held that the scheme of the prosecution in punishing under Section 138 of the N.I. Act is different from the scheme of the Cr.PC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138.
  
  Each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure 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. It was therefore held that in the context of prosecution under Section 138 of the N.I. Act, the concept of taking cognizance of the offence and not of the offender, is not applicable since disclosure of the name of the drawer is imperative.
   
• Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd, the Hon’ble Supreme Court while applying the doctrine of strict construction, opined that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. 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. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. It was held that in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138 N.I. Act, the High Court was in error in holding that the company could now be arraigned as an accused.
   
• Pawan Kumar Goel .vs. State of U.P. and another, the Hon’ble Supreme Court held that if the complainant fails to make specific averments against the company in the complaint for commission of an offence under Section 138 of N.I. Act, the same cannot be rectified by taking recourse to general principles of criminal jurisprudence. It is held that since the provisions of Section 141 of the N.I. Act impose vicarious liability by deeming fiction which pre-supposes and requires the commission of the offence by the company or firm and therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) and sub-section (2) of Section 141 of the N.I. Act would not be liable to be convicted on the basis of the principles of vicarious liability.

Held
The curable infirmity or defect can be removed by amending the complaint. The amendment cannot be allowed to change the basic core, crux and tenor of the complaint. The amendment, which results in prejudice to the other side, cannot be allowed. In other words, the amendment sought for to the complaint, if does not cause prejudice to the other side, the same can be allowed. When the amendment application pertains to addition of company or firm as a principal offender, after taking cognizance of the offence mentioned in the complaint by the Magistrate, by applying the principle of law that the Criminal Court takes the cognizance of the offence and not of the offender, cannot be made applicable and company or firm cannot be added. If the cheque is drawn on the account of company or firm, then the principal offender is the company or firm and therefore, in the absence of the company or firm being arraigned as accused in the complaint, the prosecution against the Directors or Partners cannot be maintained. It, therefore, goes without saying that if the company or firm is not a party to the complaint and the application is made to add the company or firm as a party to remove such defect, the same cannot be entertained.

The cheque in question was signed by accused nos. 2 and 4. All the Partners have been arrayed as accused. Before filing of the complaint, the notices were issued to the Partners. The notices were replied. The notice was not issued in the name of the firm. The partnership firm has not been arrayed as an accused. It is seen that even by the proposed amendment, prayer has not been made to add the firm as an accused in the complaint.

The court therefore held that the learned Magistrate had failed to take into consideration this primary legal issue. The amendment application was not maintainable, there was a legal defect in the complaint itself and the defective complaint could not have been amended by incorporating the facts set out in the application. The legal flaw in the complaint, is not a curable infirmity or defec and therefore the defect cannot be allowed to be cured or rectified by granting the amendment.

By - Lakshmi Raman