Complaint Can Be Amended As Long As The Basic Core Remains Same & Prejudice Is Not Caused To Other Party- Bombay HC Clarifies

A Bombay High Court Bench of Justice GA Sanap has observed that an amendment to a complaint can be made to remove a curable infirmity or defect, as long as it does not change the basic core, crux, and tenor of the complaint, nor cause prejudice to the other party.

Counsel MM Agnihotri appeared for the applicants, while Counsel RJ Mirza appeared for the non-applicants.

In this case, the complainant had consented to sell his land to the accused. Subsequently, the complainant received a cheque, which was then dishonoured and unpaid despite notice.

The issue was put before the Magistrate, and a process was issued against the accused, after which the complainants later applied for an amendment to plead the vicarious liability of the other accused. The application was opposed on the ground that it was not maintainable and was mala fide. However, it was allowed by the Magistrate.

This was challenged by the accused before the High Court.

The issue presented before the Court was whether an application for amendment of the criminal complaint can be made and allowed by the Court. In light of the same, the Court analysed a catena of decisions, and subsequently observed that "The legal position is, therefore, well settled that 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 furtherance, the Court observed that "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 Court also clarified that in a case where the company or firm is not a party, as a principal accused and application is made to add the company or firm as a party, such amendment cannot be allowed.

Subsequently, it was held that "if this proposed amendment is examined in the backdrop of the above stated facts and legal position, the same is nothing but an elaboration of the basic material facts stated in the complaint".

Therefore, the Court took the considered view that proposed amendment was merely an elaboration of material facts stated in the complaint, and not an attempt to remove an incurable legal defect. The complainants stated that the partners were liable for prosecution due to their responsibility for the conduct of the day-to-day business of the firm, which was a fact that could be prosecuted even without this specific averment.

Consequently, the Court held that the proposed amendment was not prejudicial to the accused, and dismissed the application.

Cause Title: Ramdeobaba Developers and Builders & Ors. vs Syed Mazaruddin Syed Shabuddin & Ors.

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