DEEPAK TALWAR v. INCOM

Judgment

#1. The aforesaid six Criminal Misc. Petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) have been filed by the Petitioner to challenge the Order dated 19.02.2021, whereby the learned ASJ in the Revision Petition, has upheld the Order of the learned ACMM dated 01.10.2019, whereby the Application under Section 311 Cr.P.C filed by the Income Tax Office for filing additional documents, was allowed. 2. The facts in brief are that a Search and Seizure operation was carried out by the Income Tax Authorities, at the residence and business offices of the Petitioner on 22.06.2016, under Section 131 (1)(A) Income Tax Act. The statements of Petitioner were recorded under Section 132(4) Income Tax Act, though the statements were subsequently retracted by the Petitioner. 3. Based on the Search and Seizure conducted on 22.06.2016, the Respondent Income Tax Authorities initiated proceedings under Black Money Act, 2015. After conducting the investigations for a period of at least 24 months from June, 2016 till May, 2018, the Complaint under Section 200 Cr.P.C was filed on 31.05.2018 against the Petitioner for allegedly committing the offences under Section 51(1) read with Section 54 Black Money Act. As is evident from the Index of the Complaint, Annexures which included Annexure-F which was only of a single page, were filed along with the Complaint. 4. The cognizance on the Complaint, was taken on 05.09.2018 by the learned ACMM and the Petitioner was summoned for 15.12.2018. Even on Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters the date of summoning, no additional documents were filed or produced in the Court by the Respondent. The cognizance was thus, taken on the basis of the documents so filed, as on 31.05.2018. The matter was listed thereafter, but no additional documents were filed on behalf of the Respondent. After about eight months of filing the Complaint, somewhere in February, 2019 an Application under Section 311 Cr.P.C was filed on the ground that inadvertently certain documents could not be filed along with the Complaint. The trial was at the stage of pre-Charge Evidence. 5. A Reply was filed by the Petitioner on 28.02.2019, vehemently opposing the Application. 6. The learned ACMM allowed the Application vide Order dated

01.10.2019 and permitted the documents as stated I Annexure “F”, but not filed earlier, to be taken on record. The part examination-in-chief of the Complainant was recorded on 28.01.2020. 7. The six Criminal Revision Petitions No.11/2020, 12/2020, 13/2020, 14/2020, 15/2020 and 16/2020 were filed by the Petitioner before the learned ASJ, who upheld the Order of the Learned ACMM, vide the common impugned Order dated 19.02.2021. 8. The Petitioner, aggrieved by the Orders, has filed the present Petitions to challenge the impugned Order on the grounds they are not only illegal, irregular, incorrect and improper, but also in clear violation of the provision of Cr.P.C. and Black Money Act. Once the cognizance is taken on a Complaint under Section 200 Cr.P.C and the Accused/Petitioner is summoned in accordance with law, the Prosecution/ Complaint cannot be permitted to file any additional or further documents subsequently at a later stage. As has been held in Yahoo! India Pvt. Ltd. vs. State & Anr., 2012 Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters (130) DRJ 656, this filing of additional documents tantamount to making an amendment in the Criminal Complaint, which is impermissible in terms of the procedure established by CR.P.C and Black Money Act. 9. It is further stated that in M/s Intercorp Industries Ltd. & Ors. vs.

Registrar of Companies, Crl. M.C.2050/2010 and Anand Srivastava vs. State & Ors., Crl. M.C.601/2005 while considering the identical issue, wherein additional documents were sought to be filed in a Complaint Case on the basis of an inadvertent error/mistake, it was held that there was no provision for filing additional documents in a Complaint under Section 200 Cr.P.C. The Summoning Order therein having been passed on the Complaint without relevant supporting documents, was set aside and the Complaint was quashed in its entirety. 10. The learned ASJ and learned ACMM have failed to appreciate that at the time of issuing the summons, these documents were not on record and the learned ACMM did not take cognizance of the said documents. Therefore, they cannot be made part of the record subsequently, by taking refuge of an inadvertent error. 11. It is settled principle of law that a trial cannot be carried out and evidence cannot be lead on documents which were never taken cognizance of by the Magistrate, in the first place. Reliance is also placed on Sanjay Gambhir vs. State, 2017 (2) DLT (CRI) 898. 12. Even otherwise, the Application under Section 311 Cr.P.C was not maintainable, as this provision can be invoked only in case of oral testimony and not for producing additional documents, on record. 13. The word “Complaint” as defined in Section 2(d) Cr.P.C covenants all the allegations that the Complainant wants to bring to the notice of the Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters learned Magistrate, and that does not leave any scope for any kind of amendment or addition to the Complaint. There is no provision in Cr.P.C akin to Order 6 Rule 17 Cr.P.C and the intent of the Legislature is very clear that once a Complaint is filed covenanting oral and documentary evidence, it stands locked before the Court and it is not open to any kind of amendment, augmentation or fortification by means of additional documents. 14. In Shakkira Aboobacker vs. U. Chekkutty, 2017 SCC OnLine KER 31373, reliance was placed on Narayan vs. State of Maharashtra, (2014) 11 SCC 790 to observe that after the cognizance of the offence has been taken long ago, permitting the amendment would cause serious prejudice to the Accused and no such amendment can be allowed. The documents placed on record would cause serious prejudice to the Petitioner, as without these documents and on the basis of the Complaints filed, there is a clear case of discharge and exoneration of the Complainant, at the appropriate stage of Complaint Case. 15. Under Chapter XV and XVI of the Cr.P.C, there is no provision akin to Section 173(8) Cr.P.C whereby the Prosecution can file further documents, after filing of the Chargesheet under Section 173(2) Cr.P.C provided the leave is sought for the same in the Final Report under Section 173(2) Cr.P.C. 16. The Respondent had nowhere reserved the right to file additional or further documentary evidence on record before the learned Trial Court. Hence, the Application of the Respondent Department was liable to be dismissed. 17. The contention of the Respondent that the column of “any other witness” in the List of Witnesses, would encompass any other document as Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters well, is grossly erroneous and misconceived in law and ought to be rejected forthwith. The Complaint filed by the Respondent along with the List of Witnesses and documents as placed on record, were all taken into consideration by the learned ACMM at the stage of taking cognizance of the offence under Section 190 Cr.P.C and the power under Section 204 Cr.P.C was duly exercised. The Petitioner is liable to be put on trial only on the basis of the contents and documents which had been found to be adequate by the learned ACMM while taking cognizance of the Complaint. 18. While merely contending that these documents were considered by the Department at the time of granting Sanction, the Respondent cannot seek to place the documents on record, when the same were admittedly not filed along with the Complaint and at the time of taking cognizance. 19. Hence, a prayer is made that the impugned Order allowing the Application under Section 311 Cr.P.C to take additional documents on record be set aside. 20. The Respondent in its Reply has taken a Preliminary Objection that the present Petition under Section 482 Cr.P.C has been filed to challenge the Order dated 19.02.2021 of learned ASJ when in fact, it does not disclose any infirmity in upholding the Order of the learned ASJ dated 01.10.2019 allowing the Application 311 Cr.P.C. It was observed that no hardship or prejudice would be caused to the Petitioner, since he would have an opportunity to counter the documents at the stage of pre-Charge Evidence. The scope of Section 311 Cr.P.C has been correctly interpreted by the learned ACMM as well as learned ASJ. 21. The Respondent has relied upon V. N. Patil vs. K. Nirajanan Kumar & Ors., (2021) 3 SCC 661, wherein the scope of Section 311 Cr.P.C was Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters explained. Reliance is also placed on Rajendera Prasad vs. Narcotic Cell, (1999) 6 SCC 110, wherein the Apex Court observed that oversight or mistakes during conduct of trial, cannot be understood a lacuna and so can be corrected. Punjab and Haryana High Court in Balwinder Singh vs. State of Punjab and Ors., 2009 SCC Online P&H 11350 held that the function of Criminal Court is transmission of justice and no party can be allowed to take undue benefit or to count on errors committed by others, leading to justice being deprived to a party. 22. Further reference is made to Vipin Kumar vs. State of Delhi & Anr., 2017 SCC OnLine Del 11433, wherein in a similar factual situation, it was held that the power to receive evidence under Section 311 Cr.P.C can be exercised even if the evidence of both the sides is closed as such jurisdiction of the Court is dictated by exigency of the situation and fair play. The only factor to govern the Court in exercise of powers under Section 311 Cr.P.C., would be whether such material is essential for the just decision of the case. 23. It is contended that in the similar factual situation Supreme Court as well as High Courts, have permitted the documents to be filed under Section 311 Cr.P.C. Moreover, these documents were considered at the time of grant of Sanction. The documents so placed on record are relevant as these are the documents received from FT&TR Division of Central Board of Direct Taxes under the provision of Double Tax Avoidance Agreement. These documents disclosed that M/s Asia Field Ltd. vide Power of Attorney dated 05.02.2007 had appointed Deepak Talwar, the Petitioner as its true and lawful attorney, to operate any bank accounts opened in the name of the Company with ING Asia Private Bank Ltd. and to give instructions for any facility granted by Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters the Bank to the Company. This in turn discloses that the Petitioner was the actual owner/beneficiary of the Company. 24. These documents reflect the beneficial interest of the Petitioner in the off shore Company M/s Asia Field Ltd., which the Petitioner had wilfully not disclosed in his Income Tax Returns, thereby committing an offence under Section 51(1) read with Section 54 of Black Money Act. 25. On merits, all the averments made in the Petition were denied. It is submitted that there is no infirmity, illegality or impropriety in the impugned Order of the learned ASJ and the present Petition is liable to be dismissed. 26. Written Submissions have been filed on behalf of the Petitioner wherein similar contentions as stated in the Petition, have been raised. Submissions heard and record perused. 27. An Application under Section 311 Cr.P.C. was filed on behalf of the Respondent to place on record certain documents, which was specified in the „Annexure F‟ annexed along with the Complaint, which was allowed by learned ACMM vide Order dated 01.10.2019, which was upheld by learned Additional Sessions Judge vide Order dated 19.02.2021. 28. The first contention raised on behalf of the Petitioner is that there is no provision analogous to Order VI Rule 17 of the Civil Procedure Code, 1903 (hereinafter referred to as “CPC”) which permits amendment of the Complaint and Section 311 Cr.P.C. cannot be invoked to place on record additional documents which are highly prejudicial to the Petitioner, especially when they did not form part of the record at the time when he was summoned by the learned ACMM in the Complaint. Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters

#29. What thus, firstly needs to be considered is whether the amendment of the Complaint is permissible, under criminal jurisprudence and if yes, then under what circumstances. 30. There is no denying that there is no provision like Order VI Rule 17 CPC, in the Criminal Procedure Code, enabling the amendment of the Charge Sheet/Complaint. Though not strictly dealing with amendment, Section 173(8) Cr.P.C. enables the Prosecution to file the supplementary Charge-Sheet in the State case, provided that the investigation is ongoing and is so mentioned in the Charge-Sheet. 31. For the Complaint cases, there is no provision in Cr.P.C., which provides for the amendment of the Complaint. However, the Apex Court in the case of U.P. Pollution Control Board vs. Modi Distillery, (1987) 3 SCC 684, had observed that where the infirmity is one which can easily be removed by a formal amendment to the averments made in the Complaint, then such amendment can be allowed. When there is a clerical or typographical error in the Complaint regarding the description of the Complainant, etc., then the plea for correction and amendment of the Complaint, can be entertained and allowed by the criminal Court. 32. In the case of U.P Pollution Control Board vs. Modi Distilleries, (1987) 3 SCC 684, Modi Distillery was impleaded instead of Modi Industries Ltd. It was held that a technical flaw in a Complaint attributable to the failure of Industrial Unit to furnish the requisite information called for by the Board, can be easily cured. 33. Similarly, in the case of S.R. Sukumar vs. S. Sunaad Raghuram, (2015) 9 SCC 609 while referring to U.P. Pollution Control Board, (supra), it was held that an easily curable legal infirmity by means of an Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters amendment, if no prejudice is caused to the other side, can be cured by means of formal Application for amendment, notwithstanding the fact that there is no enabling provision in the Cr.P.C. for entertaining the amendment Application. 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. 34. In the case of Amol Shripal Sheth vs. Hari Om Trading Co. Ltd., (2014) 6 Mah LJ 222 it was held by Bombay High Court that the Magistrate has incidental and ancillary power to the main power of taking cognizance of the offence, to entertain and allow the amendment Application and that such power can be exercised before as well as after taking cognizance of the offence, the only factor while deciding the amendment Application is that the cognizance is taken of the offence and not the offender. 35. In the case of S.R. Sukumar, (supra) the Supreme Court noted that the amendment in the Complaint even if not formal but a substantial one, can still be allowed provided no cognizance was taken of the Complaint before the disposal of the amendment Application. It was held that since summons were yet to be ordered to be issued to the Accused, no prejudice would be caused to the Accused. Furthermore, such amendment to the Complaint did not change the original nature of the Complaint, being one of defamation. 36. It was re-enunciated in the case of Narayan vs. State of Maharashtra, (2014) 11 SCC 790, by the Apex Court that amendment can be denied, only if it deprives and causes serious prejudice to the accused. Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters

#37. What would amount to a substantive amendment in the Complaint, can be understood from the judgment of Sanjay Gambhir vs. State, 2017 SCC On Line Delhi 8331, wherein in a Complaint under 138 NI Act, where the name of two Petitioners who were the Directors, had not been impleaded as the Accused in the Complaint, was sought to be introduced by way of amendment. It was held that to add an Accused not initially impleaded, is not a curable defect and would cause serious prejudice to the Accused sought to be summoned and consequently, such an amendment is impermissible in law. 38. Similarly, in the case of Ram Deo Baba Developers and Builders vs. Syed Mazaruddin Syed Shabuddin, through his LRs and Others, 2023 SCC OnLine Bom 954 an amendment was sought to be made in a Complaint under Section 138 NI Act, to incorporate the relevant facts with regard to vicarious liability of the Accused No.1 to 4 (the partners in the Firm) and to explain that they were responsible for the conduce of day to day business of the Firm and as such were vicariously liable. It was held that the proposed amendment was nothing but an elaboration of the material facts already stated in the Complaint and did not change the nature of the Complaint and could not be held prejudicial to the Accused. The proposed amendment was, therefore, allowed. 39. In Himanshu vs. B. Shivamurthy, (2019) 3 SCC 797, in a Complaint under Section 138 NI Act, the individual who was the Director in the Company was made an Accused to whom Notice of Demand had been served. The Complaint was lodged only against the Director, without naming the Company as an Accused. It was held that in the absence of Company being arraigned as an Accused, a Complaint against the Appellant Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters (Director) is not maintainable. In the absence of Notice of Demand being served upon the Company and without the compliance of provisions under Section 138 NI Act, the Company cannot be allowed to be made a party by way of Amendment and such recourse would be contrary to general principles of criminal jurisprudence. 40. In the recent case of Bansal Milk Chilling Centre vs. Rana Milk Food Private Limited, (2026) 1 SCC 712 the Apex Court while referring to the aforesaid judgments, concluded that it would be fallacious to contain that in no circumstance can an amendment to the Complaint be allowed after cognizance is taken. In the said case even though cognizance had been taken, the amendment in the Complaint was allowed to change the product name from „Desi Ghee‟ (milk product) to „Milk‟. It was held that it was a curable irregularity which would be addressed by allowing the amendment. 41. It therefore, emerges that the amendment of the Complaints may be permitted, if it is clerical, typographical or an easily curable legal infirmity, with the rider that no prejudice is caused to the other side. 42. The contention of the Petitioner is that allowing the documents to be placed on record, tantamount to amendment of the Complaint itself, to the prejudice of the Petitioner. This argument is totally fallacious for the simple reason that there is no amendment sought of the Complaint, but only the Documents, which though mentioned in the Complaint, could not be filed earlier, along with it. Seeking to place on Record such documents cannot, by any stretch of interpretation, be termed as amendment of the Complaint. 43. The second and the pertinent question is whether these documents can be allowed to be placed on record, under the enabling Section 311 Cr.P.C. This Section confers wide discretion on the Court and is couched in Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters widest terms; the only condition circumscribing this discretionary power is that it can be invoked only for the ends of justice. 44. The aim of every Court is to discover the truth. Section 311 Cr.P.C. is one of the many such provisions, which strengthens the arm of the Court in its effort to unearth the truth by procedure sanctioned by law. This Section gives ample power to the Courts to recall, summon or re-examine any person in evidence if it appears to be essential to the just decision in the case. 45. In the case of Jagdish vs. State of Haryana, Criminal Revision No.2547 of 2009 decided on 25.09.2009 the Apex Court held that the primary aim and object of this Section is to do justice between the parties. If the Court comes to a conclusion that production of such evidence, which has been sought to be produced taking recourse to Section 311 Cr.P.C would enable the Court to come to a correct finding, it would be just and reasonable for the Court to permit the evidence to be produced under this Section. This Section does not distinguish but rather allows production of evidence, whether documentary or oral, which the Court feels is necessary for the just decision of the case and no fetters and impediments can be put in exercise of these powers, which have been conferred by the Legislature on the Trial Court. 46. The purpose and intent of the trial is to find out the truth and the truth alone should prevail and in its quest to find out and to reach the truth, the Trial court has been saddled with powers to make all efforts to reach the correct conclusion, which is the truth. No doubt, in the said process, interest of the parties has to be taken care of but that does not mean that justice should be the casualty. The rights have been conferred under the statute, Signature Not Verified Signed By:VIKAS ARORA Signing Date:17.03.2026 17:21:42 CRL.M.C. 1844/2021 & connected matters both on the Prosecution as well as the Accused and when the statute confers such powers upon the Court, which is primarily in the nature of doing justice and for that it is the satisfaction of the Court as to the essentiality of the evidence, sought to be produced by the parties for the just decision of the case, the same is dependent upon the facts of each case. 47. Its scope was so stated by the Supreme Court in Vijay Kumar vs. State of U.P., (2011) 8 SCC 136 and was reiterated in Mannan Shaikh vs. State of