Chattisgarh High Court
C.G. Motors vs Aprna T.V.S. Saja on 3 July, 2025
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2025:CGHC:30387
Digitally signed
by RAMESH
KUMAR VATTI
Date: 2025.07.09
16:51:30 +0530 NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP(227) No. 516 of 2024
• C.G. Motors through proprietor Priyanka Agrawal D/o Shri Ghanshyam
Agrawal, aged about 28 years, R/o C.J. Motors, TVS Showroom,
Raipur Road Bemetara, Tahsil & Police Station Saja, District Bemetara,
Chhattisgarh
... Petitioner
Versus
• Aprna T.V.S. Saja through proprietor Suresh Kumar Sahu S/o
Nathuram Sahu, aged about 42 years, R/o House No. 92, Ward No. 02
Bod, Tahsil and Police Station Saja, District Bemetara, Chhattisgarh
... Respondent
For Petitioner : Mr. Goutam Khetrapal, Advocate For Respondent : Mr. Samir Singh, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 03/07/2025 Heard.
1. The petitioner has challenged the order dated 15.04.2024 passed in Case No. 2850/2021 by the Civil Judge First Class, Bemetara, District Bemetara (C.G.), whereby an application moved by the petitioner under Order 6 Rule 17 of CPC in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act, 1881') has been rejected.
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2. The facts of the present case are that the petitioner/complainant filed a complaint case under Section 138 of NI Act, 1881 against the respondent inter alia on the ground that on 01.03.2020 the respondent took 50 sold vehicles for resale from the petitioner company and a cheque No. 933314 dated 10.10.,2021 for a sum of Rs. 25 lacs was issued in favour of the petitioner. The petitioner presented the cheque at ICICI Bank, Branch Bemetara on 11.10.2021 and it was dishonored. The petitioner sent a registered mandatory notice to the respondent and thereafter filed a complaint case on 18.11.2021. The petitioner annexed a copy of the cheque returned by the Bank, a copy of the legal notice and other relevant documents along with the complaint.
The learned trial Court framed the charge and the complainant was examined on 24.07.2023. The matter was fixed for evidence of the renaming witnesses of the complainant before the Court below. On 19.01.2024, the petitioner moved an application under Order 6 Rule 17 of CPC with a prayer to amend the cheque number from 966614 to 933314 in the complaint on the ground that due to a typographical mistake, an incorrect cheque number has been mentioned. The respondent filed a reply and denied the averments made in the application. It was specifically pleaded that there is no provision for amendment in the Cr.P.C.
The learned trial Court vide order dated 15.04.2024 rejected the application on the ground that it was moved at a belated stage without explaining the reasons for such delay.
3. Mr. Goutam Khetrapal, learned counsel appearing for the petitioner would argue that the petitioner annexed a copy of the original cheque along with the complaint case and a bare perusal of the original cheque 3 would reveal that its number is 933314, but due to typographical mistake, incorrect number has been mentioned in the complaint. He would contend that the amendment would not change the nature of the case. He would further submit that the respondent is aware of the fact that cheque No. 933314 was issued by him and no prejudice would be caused to the respondent. Mr. Goutam Khetrapal has placed reliance on the judgment passed by the coordinate bench of this Court in the matter of Ghanshyam Chandra Vs. Manoj Kumar Chandra reported in 2023 SCC OnLine Chh 513 and the judgment passed by the High Court of Madhya Pradesh at Jabalpur in the matter Bhupendra Singh Thakur Vs. Umesh Sahu passed in Misc. Criminal Case No. 35101 of 2022 dated 26.07.2022.
4. On the other hand, Mr. Samir Singh, learned counsel appearing for the respondent would oppose the submission made by Mr. Goutam Khetrapal. Mr. Samir Singh would submit that there is no provision for amendment in the Cr.P.C. The cheque No. 933314 issued by the respondent was dishonored and this fact was within the knowledge of the petitioner, but an incorrect cheque number has been mentioned in the complaint case. He would further submit that the complainant has already been examined and cross-examined and at this stage, he cannot be permitted to bring new facts in the complaint case. He would further argue that the learned trial Court has rightly rejected the application. He has placed reliance on the judgment passed by the High Court of Madhya Pradesh (Gwalior Bench) in the matter of Lekhraj Singh Kushwah Vs. Brahmanand Tiwari reported in (2014) CriLJ 290 and the judgment passed by the High Court of Madhya 4 Pradesh (Indore Bench) in the matter of Anil Kumar Vs. Balwantsingh Sethi reported in (2024) 3 ILR (MP) 1743.
5. I have heard learned counsel for the petitioner and perused the documents.
6. Cheque No. 933314 amounting to Rs.25 lacs was issued by the respondent in favour of the petitioner on 10.10.2021. The cheque was presented before the concerned Bank and it was dishonored. A mandatory legal notice was sent to the respondent and thereafter a complaint case was filed by the petitioner on 18.11.2021. Original cheque No. 933314 has been annexed along with the complaint case.
7. Perusal of the complaint case would show that the petitioner has mentioned cheque No. 966614 in Para-3 of the complaint. The petitioner/complainant has already been examined and cross- examined before the Court below. An application under Order 6 Rule 17 of CPC was moved on 19.01.2024 to amend the cheque number from 966614 to 933314. The application has been rejected by the learned Trial Court on the ground that the same has been moved at a belated stage.
8. In the matter of Ghanshyam Chandra (supra), an application was moved by the complainant in a proceeding under Section 138 of the NI Act before the learned trial Court, which was allowed and the said order was challenged by Ghanshyam Chandra. The coordinate bench considered the judgment passed by the Hon'ble Supreme Court in the matter of SR. Sukumar Vs. S. Sunaad Raghuram reported in (2015) 9 SCC 609 wherein it is held that even in the criminal cases, though there is no specific provision in Cr.P.C. to amend either a complaint or a petition, but the Courts may allow such application to correct curable 5 infirmities. The relevant paragraphs No. 2, 5, 6, 7 and 8 of Ghanshyam Chandra (supra) are reproduced herein below:-
"2. Brief facts of the case are that the Respondent/Complainant has filed a complaint case under Section 138 of the Negotiable Instruments Act against the Petitioner/accused. The trial Court, after hearing the final arguments, fixed the case for the judgment on 29.10.2022 and Respondent/Complainant at that stage, on 21.10.2022, filed an application for amendment in the complaint alleging that there is a typographical/clerical error, therefore, the said application was allowed and the complaint is accordingly amended. Hence this petition.
5. In the matter of SR. Sukumar v. S. Sunaad Raghuram reported in (2015) 9 SCC 609, even in the criminal cases, though there is no specific provision in Cr.P.C. to amend either a complaint or a Petition but the Courts have held that Petitions seeking such amendment to correct curable infirmities can be allowed and it has been materially observed at paras-18 & 19 as under:-
"18. Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery, (1987) 2 SCC 684, wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has 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 whhich 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 6 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 accused concerned 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 owing the industrial unit, in place of Modi Distillery.... Furthermore, the legal infirmity is of such a nature which could be easily cured."
19. What is dicernible form U.P. Pollution Control Board case ((1987) 3 SCC 684) is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwihstanding 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. 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."
6. Reverting back to the factgs of the present case, in view of the aforesaid principles, as the trial Court has categorically given its finding that both the amendments are purely curable in nature as in the cheque, the date is categorically mentioned as 24.01.2020 but due to clerical mistake, in the complaint, it has been mentioned as 24.12.2020. Similarly, in the notice, the date is mentioned as 11.03.2020 which has been inadvertently typed therein as 12.03.2020, therefore, the trial Court has allowed the application for amendment, though it has been filed at a belated stage.
7. It is well settled that the judiciary is respected not on account of its power to legalize on technical grounds but on its capacity of removing injustice and it is expected to do so. It is also well settled that the Courts are meant to do substantial justice beteween the parties and 7 the procedure of removing technical laches should not be given precedence. Justice according to law does not mean technical justice but the law has to be administered to advance justice.
8. In view of aforesaid settled principles, this Court is of the opinion that there is no illegality or infirmity in the impugned order and the same does not call for any interference invoking supervisory jurisdiction."
9. In the matter of Bhupendra Singh Thakur (supra), where the name of the Bank was wrongly mentioned in the complaint case and the application for amendment was moved, which was allowed by the learned Trial Court, the High Court of Madhya Pradesh placing reliance on the judgments passed by the Hon'ble Supreme Court in the matter of U.P. Pollution Control Board Vs. Modi Distilleries reported in (1987) 3 SCC 684 and SR. Sukumar (supra) allowed the petition. The relevant Paragraphs No. 13 and 14 of Bhupendra Singh Thakur (supra) are as under:-
"13. Learned Magistrate in its order has mentioned that mentioning of the name of Punjab National Bank may be a typograghical error and it is a formal infirmity. In view of the judgment passed by the Apex Court in case of U.P. Pollution Control Board (supra) and S.R. Sukamar (supra) case and the view taken by the coordinate bench of this Court, I am of the considered view that where due to inadvertance of the complainant name of the bank has been wrongly mentioned in complaint same is a curable infirmity and that can be cured through amendment at any stage before pronouncement of the judgment and in a case of curable infirmity criminal Court can grant leave to amend the complaint by incorporating the name of the bank of which cheque was issued.
14. Therefore, in wake of above discussion, it is apparent that Courts below have not committed any error in passing the impugned orders as amendment sought to be made by 8 complainant relates to mere curing a simple infirmity, which has resulted in no prejudice to the accused and same may be allowed by the Court at any stage of the proceedings as the same does not change the nature of the complaint and is mean to cure the curable defects."
10. In the matter of Lekhraj Singh Kushwah (supra), in the complaint filed under Section 138 of the NI Act, the wrong cheque number was mentioned due to negligence and the application for amendment was rejected by the Trial Court. The High Court of Madhya Pradesh dismissed the petition preferred by Lekhraj Singh on the ground that not only in the pleadings of the complaint but in the notice as well as affidavit, the wrong number of cheques was mentioned. The relevant Paragraph No. 9 is reproduced herein below:-
"9. Thus, looking to the fact that coordinate Bench of this Court has consistently held in Kunstocom Electronics (I) Ltd. and Sunder Dev (supra) which has been decided much prior to Pt.
Gorelal's case, the decision is binding upon latter coordinate Bench. Considering the facts of the instant case that not only in the pleadings of the complaint, but in the notice as well as in the affidavit filed by the respondent, number of cheque has been mentioned as 332534, in my opinion, the learned Courts below have committed illegality in allowing such amendment. In view of the above analysis, the orders passed by the Courts below are not sustainable. Hence, the petition is allowed and orders passed by the Courts below dated 24.11.2010 and 4.8.2011 are quashed."
11. In the matter of Anil Kumar (supra) in a complaint case filed under Section 138 of the NI Act, there was a variation in the dates. The application for amendment was rejected by the Trial Court. The High Court held that in the matter of Bhupendra Singh Thakur (supra) the name of the Bank was wrongly mentioned, therefore, the amendment was permitted. It is further held that according to the judgment passed 9 by the Hon'ble Supreme Court in the matter of SR. Sukumar (supra) amendment cannot be allowed, if it does not relate to a curable defect. The relevant Paragraphs No. 13, 14 and 15 of Anil Kumar (supra) are reproduced herein below:-
"13. In Bhupendra Singh Thakur (Supra) the dispute was as regards the name of the bank on which the cheque had been drawn which had been wrongly mentioned by the complainant and which was permitted to be amended on the ground that the same was merely curing a simple infirmity as the same does not change the nature of complaint and was made to cure the curable defects.
14. 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.
15. 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."10
12. In the matter Ghanshyam Chandra (supra), the coordinate bench of this Court in Paragraph No. 5 discussed the law laid down by the Hon'ble Supreme Court in the matter of SR. Sukumar (supra) and held that though there is no provision in Cr.P.C. to amend either a complaint or a petition, but curable infirmities can be allowed.
13. In the present case, the complainant mentioned the wrong cheque No. 966614 in the complaint case, but the proper cheque was annexed along the complaint case itself, therefore, the infirmity in the complaint case, particularly in Para-3 appears to be curable. Further, the respondent was aware of the fact that the original cheque, which contains the correct number is part of the complaint case.
14. In the matter of Modi Distilleries (supra), the Hon'ble Supreme Court has categorically held that the infirmities which can easily be removed can be permitted to be cured.
15. In the present case, the infirmity is not of grave nature which cannot be rectified easily.
16. In the matter of Anil Kumar (supra), the rejection of the amendment application was affirmed on the ground that there were infirmities of a grave nature.
17. In the matter of Lekhraj Singh Kushwah (supra), there were infirmities in the pleadings of the complaint, in the notice as well as in the affidavit, therefore, the prayer for amendment was not allowed.
18. Taking into consideration the above-discussed facts and the law laid down by the Hon'ble Supreme Court in the matter of S. R. Sukumar (supra), the order passed by the learned Trial Court dated 15.04.2024 is hereby set aside and the application moved by the petitioner under Order 6 Rule 17 of CPC is hereby allowed. The petitioner would be at 11 liberty to carry out necessary amendments with regard to the cheque number in the complaint case in the file pending before the learned Trial Court. No costs.
Sd/-
(Rakesh Mohan Pandey) Judge vatti