Amendment in notice or complaint filed under section 138 nia
Prakash Joshi
(Querist) 27 March 2025
This query is : Resolved
Friends,
Can anyone share the legal position or cite any SC judgement regarding amendment in the notice or complaint filed for dishonour of cheque u/s 138. Is it allowed or not and upto what stage of proceedings,
Thnaks
P C Joshi
T. Kalaiselvan, Advocate
(Expert) 27 March 2025
A legal demand notice sent by the complainant to the accused cannot be amended however, to rectify any error in the original legal notice, he can issue a rejoinder notice within a reasonable time.
You may also note that complaint under Section 138 of the Negotiable Instruments (NI) Act can be amended after it's filed and taken on the court's record, but with caution and only for curable defects, not fundamental changes.
The Supreme Court has recognized the right to amend a complaint under Section 138 of the NI Act to rectify curable defects or infirmities.
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.
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.
You may also search for more suitable citations suiting or relevant to y9our case through internet or from a bar association library.
kavksatyanarayana
(Expert) 27 March 2025
Did you not ask your lawyer for the same instead of posting here?
