Anil Kumar Pathak v. Babali Sahu), under Section

"1. Heard Sri Vijay Singh Sengar, learned counsel for the applicant and Sri Sandeep Chaudhary, learned A.G.A. for the State.

2. The instant application has been filed seeking quashing of the order dated 30.9.2024 passed in Complaint Case No. 17654 of 2021 (Anil Kumar Pathak vs. Babali Sahu), under Section 138 N.I. Act, P.S. Kotwali, District Jhansi. It is further prayed to permit the counsel for the applicant to correct/amend the Cheque No. 000047 in place of 000042 in the memo of plaint of the aforesaid complaint.

3. Contention of learned counsel for the applicant is that the applicant had filed an application prior to the summoning order to correct the cheque number, from 42 to 47 as the cheque No.42 was mentioned due to typographical mistake, but the court below, without considering that in the return memo as well as in the cheque, there is no dispute about the amount, date and the name of payee, rejected the same by adopting hyper technical view that there is no provision in Cr.P.C. to make amendment in the passed impugned order. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court passed in S.R. Sukumar vs. S. Sunaad Raghuram; Criminal Appeal No. 844 of 2015 as well as judgement of the M.P. High Court passed in Umesh Sahu vs. Umashankar Sahu; Application u/s 482 No. 35101 of 2022.

4. Matter requires consideration.

5. Issue notice to opposite party No.2.

6. List in the week commencing 17.2.2025 as fresh."

3. Thereafter on 26.07.2025, the officer report reads as under: "A report from L.d. C.J.M. Jhansi regarding service of notice is kept on record at flag-B stating that- " ववपकक नन ननवटस लननन सन मनन वकयन व मजददरक ननवटस कक छनयन पवत शकमतक बबलक सनहह कन दरवनजन पपर चसपनकर तवमल करन वदयन गयन हप " Put up for order."

4. Till the dictation of the order, neither anybody has put in appearance nor any affidavit has been filed. Treating the service to be sufficient, the Court is proceeding with the matter.

5. This application under Section 482 Cr.PC. has been filed by the applicant to quash the order dated 30.9.2024 passed in Complaint Case No. 17654 of 2021 (Anil Kumar Pathak vs. Babali Sahu), under Section 138 N.I. Act, P.S. Kotwali, District Jhansi.

6. Learned counsel for the applicant has submitted that a complaint stood logged by the applicant on 17.11.2021 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, the opposite party No. 2 had drawn a cheque bearing No. 000042 of Rs. 30,00,000/- which on presentation in the bank on

01.10.2021 which came to be dishonored on 05.10.2021, payment stopped by the drawer followed by a statutory demand notice was issued on 18.10.2021 which came to be served upon opposite part No. 2 on 25.10.2021 and the complaint on 17.11.2021, the applicant was summoned, however, an application was preferred by the applicant herein seeking amendment in the complaint to the extent that the cheque No. 000047 but it was wrongly typed as '000042'. The said application came to be rejected by the Court of Additional Civil Judge (Senior Division)/ F.T.C., Court No. 1, Jhansi in complaint case No. 17654 of 2021 on 30.09.2024.

7. Questioning the same, the applicant has been filed the present application.

8. Learned counsel for the applicant has submitted that the order dated 30.09.2024 rejecting the amendment application seeking amendment in the number of the cheque from '000042' to '000047' cannot be sustained for a simple reason as the same is nothing but a typographical error without changing the nature of the case or while resiling from any admission made in that regard. Submission is that the typographical error can be corrected by the amendment as there is no prohibition with regard to the amendment in the complaint. He, however, invited the attention of the Court towards page 21 of the paper books so as to further contend that the return memo of the bank dated 05.10.2021 itself shows that the cheque No. 000047 of Rs.30,00,000/-. Reliance has been placed upon the recent decision of the Hon'ble Apex Court in Bansal Milk Chilling Centre v. Rana Milk Food Private Ltd. and Another; 2025 0 INSC 899.

9. Learned State Law Officer could not dispute the said fact as the proposition of law as cited by the learned counsel for the applicant and he submits that once there is a typographical error then there is no prohibition of bar of amendment of the complaint under Section 138 of the N.I. Act.

10. I have heard learned counsel for the parties and gone through the records carefully.

11. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a complaint was lodged by the applicant under Section 138 of the N.I. Act with respect to dishonor of a cheque whose number was wrongly typed as '000042' instead of '000047'. An amendment application came to be preferred for amendment in the complaint for inserting the cheque No. '000047' instead of '000042' which has been rejected.

12. The Hon'ble Apex Court in Bansal Milk Chilling Centre (supra) in para 10, 11, 12, 14 and 15 as observed as under: "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 Others, (1987) 3 SCC 684. 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 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 Another (2016) 11 SCC 774, 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, 2024 SCC OnLine 1732 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:- "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."

13. Apart from the same, nothing has been brought on record or there is any recital in the order under challenge that any finding has been recorded, prejudice has been caused to other party, further what is to be sought to be brought was for just incorporating the correct number of the cheque.

14. Accordingly, the order dated 30.09.2024 passed by Additional Civil Judge (Senior Division)/ F.T.C., Court No. 1, Jhansi the set aside.

15. With the aforesaid observation, the application is disposed off.

16. Learned counsel for the applicant is permitted to correct/ amend the number of the cheque No.000047 in place of cheque No. 000042 in the memo of the complaint. Order Date :- 29.7.2025 A. Prajapati

"1. Heard Sri Vijay Singh Sengar, learned counsel for the applicant and Sri Sandeep Chaudhary, learned A.G.A. for the State.

2. The instant application has been filed seeking quashing of the order dated 30.9.2024 passed in Complaint Case No. 17654 of 2021 (Anil Kumar Pathak vs. Babali Sahu), under Section 138 N.I. Act, P.S. Kotwali, District Jhansi. It is further prayed to permit the counsel for the applicant to correct/amend the Cheque No. 000047 in place of 000042 in the memo of plaint of the aforesaid complaint.

3. Contention of learned counsel for the applicant is that the applicant had filed an application prior to the summoning order to correct the cheque number, from 42 to 47 as the cheque No.42 was mentioned due to typographical mistake, but the court below, without considering that in the return memo as well as in the cheque, there is no dispute about the amount, date and the name of payee, rejected the same by adopting hyper technical view that there is no provision in Cr.P.C. to make amendment in the passed impugned order. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court passed in S.R. Sukumar vs. S. Sunaad Raghuram; Criminal Appeal No. 844 of 2015 as well as judgement of the M.P. High Court passed in Umesh Sahu vs. Umashankar Sahu; Application u/s 482 No. 35101 of 2022.

4. Matter requires consideration.

5. Issue notice to opposite party No.2.

6. List in the week commencing 17.2.2025 as fresh."

3. Thereafter on 26.07.2025, the officer report reads as under: "A report from L.d. C.J.M. Jhansi regarding service of notice is kept on record at flag-B stating that- " ववपकक नन ननवटस लननन सन मनन वकयन व मजददरक ननवटस कक छनयन पवत शकमतक बबलक सनहह कन दरवनजन पपर चसपनकर तवमल करन वदयन गयन हप " Put up for order."

4. Till the dictation of the order, neither anybody has put in appearance nor any affidavit has been filed. Treating the service to be sufficient, the Court is proceeding with the matter.

5. This application under Section 482 Cr.PC. has been filed by the applicant to quash the order dated 30.9.2024 passed in Complaint Case No. 17654 of 2021 (Anil Kumar Pathak vs. Babali Sahu), under Section 138 N.I. Act, P.S. Kotwali, District Jhansi.

6. Learned counsel for the applicant has submitted that a complaint stood logged by the applicant on 17.11.2021 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, the opposite party No. 2 had drawn a cheque bearing No. 000042 of Rs. 30,00,000/- which on presentation in the bank on

01.10.2021 which came to be dishonored on 05.10.2021, payment stopped by the drawer followed by a statutory demand notice was issued on 18.10.2021 which came to be served upon opposite part No. 2 on 25.10.2021 and the complaint on 17.11.2021, the applicant was summoned, however, an application was preferred by the applicant herein seeking amendment in the complaint to the extent that the cheque No. 000047 but it was wrongly typed as '000042'. The said application came to be rejected by the Court of Additional Civil Judge (Senior Division)/ F.T.C., Court No. 1, Jhansi in complaint case No. 17654 of 2021 on 30.09.2024.

7. Questioning the same, the applicant has been filed the present application.

8. Learned counsel for the applicant has submitted that the order dated 30.09.2024 rejecting the amendment application seeking amendment in the number of the cheque from '000042' to '000047' cannot be sustained for a simple reason as the same is nothing but a typographical error without changing the nature of the case or while resiling from any admission made in that regard. Submission is that the typographical error can be corrected by the amendment as there is no prohibition with regard to the amendment in the complaint. He, however, invited the attention of the Court towards page 21 of the paper books so as to further contend that the return memo of the bank dated 05.10.2021 itself shows that the cheque No. 000047 of Rs.30,00,000/-. Reliance has been placed upon the recent decision of the Hon'ble Apex Court in Bansal Milk Chilling Centre v. Rana Milk Food Private Ltd. and Another; 2025 0 INSC 899.

9. Learned State Law Officer could not dispute the said fact as the proposition of law as cited by the learned counsel for the applicant and he submits that once there is a typographical error then there is no prohibition of bar of amendment of the complaint under Section 138 of the N.I. Act.

10. I have heard learned counsel for the parties and gone through the records carefully.

11. The sole question which arises for determination in the present proceedings is to the extent of judicial intervention. Apparently, a complaint was lodged by the applicant under Section 138 of the N.I. Act with respect to dishonor of a cheque whose number was wrongly typed as '000042' instead of '000047'. An amendment application came to be preferred for amendment in the complaint for inserting the cheque No. '000047' instead of '000042' which has been rejected.

12. The Hon'ble Apex Court in Bansal Milk Chilling Centre (supra) in para 10, 11, 12, 14 and 15 as observed as under: "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 Others, (1987) 3 SCC 684. 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 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 Another (2016) 11 SCC 774, 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, 2024 SCC OnLine 1732 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:- "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."

13. Apart from the same, nothing has been brought on record or there is any recital in the order under challenge that any finding has been recorded, prejudice has been caused to other party, further what is to be sought to be brought was for just incorporating the correct number of the cheque.

14. Accordingly, the order dated 30.09.2024 passed by Additional Civil Judge (Senior Division)/ F.T.C., Court No. 1, Jhansi the set aside.

15. With the aforesaid observation, the application is disposed off.

16. Learned counsel for the applicant is permitted to correct/ amend the number of the cheque No.000047 in place of cheque No. 000042 in the memo of the complaint. Order Date :- 29.7.2025 A. Prajapati