Incorrect Date Of Cheque In Complaint Under NI Act Is Not A Curable Infirmity; Cannot Allow Amendment: MPHC
|While refusing the plea for amendment of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, the Madhya Pradesh High Court has observed that the defect of the date of the cheque in the complaint cannot be said to be a simple or curable infirmity but relates to a substantial infirmity.
A petition under Section 482 Cr.P.C. was filed by the Petitioner aggrieved by the order passed by the Judicial Magistrate allowing the application filed by the Complaint-respondent to amend the variation in the date in one of the cheques in the complaint filed under Section 138 of the NI Act.
The Bench of Justice Pranay Verma observed “In the present case, admittedly the defect is of the date of the cheques which as per the complaint has been incorrectly mentioned. However, such mentioning is in the notice issued to the accused, in the complaint itself and so also in the affidavit filed in support of the complaint. The same cannot be said to be a simple or curable infirmity but relates to a substantial infirmity. As has been held by the Supreme Court in S.R. Sukumar (Supra) amendment cannot be allowed if it does not relate to a curable infirmity. Such infirmity cannot also be corrected by a formal amendment if there is likelihood of prejudice to the other side.”
Advocate M.A. Mansoori appeared for the Petitioner whereas Advocate Upendra Singh appeared for the Respondent.
Relying on Dilip v. State of M.P. and Lekhraj Singh Kushwah Vs. Brahmanand Tiwari (MPHC) the Court categorically observed that the mistake in the cheque number, which is akin to the mistake in the date of the cheque, cannot be corrected by way of an amendment. It was further held that there is no provision in the Cr. P.C to amend the criminal complaint.
The Court held, “The Trial Court has already applied its judicial mind to the contents of the complaint and has taken cognizance of the matter. Summons have already been issued to the accused and he has already appeared before the Court. The amendment if permitted would change the entire nature of the complaint as the date of the cheques itself would be altered. The facts proposed to be inserted by way of the amendment are not at all based upon subsequent events. If the amendment is permitted it would certainly cause prejudice to the accused. Thus, the amendment at this stage of the proceedings could not have been permitted whereas the trial Court has erred in doing so.”
Therefore, the High Court said that the order of the Trial Court could not be substantiated, hence set aside.
Accordingly, the petition was allowed and disposed of.
Cause Title: Anil Kumar v. Balwant Singh Sethi
Appearances:
Petitioner: Advocate M.A. Mansoori
Respondent: Advocate Upendra Singh