Case Note & Summary
The petitioner, Madan Tulshiram Hembade, was the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent-complainant, Ashok Sonaji Hembade. The complaint alleged that the accused had taken a hand loan of Rs. 10,00,000 on seven different dates and issued a cheque which was dishonoured. After the accused pleaded not guilty on 21.12.2010, the complainant filed an application (Exh.14) on 20.1.2011 seeking to amend the complaint to correct a typographical error: the date '7.5.2005' and amount 'Rs. 50,000' were to be corrected to '7.5.2006' and 'Rs. 1,00,000'. The accused opposed the amendment, but the Magistrate allowed it. The accused then filed a revision before the Sessions Court, which dismissed it. The accused then filed the present criminal writ petition before the Bombay High Court. The High Court, after hearing both sides, held that the amendment was merely a formal and arithmetical correction that did not alter the substance of the complaint. The court noted that the amendment was sought before the trial had commenced and that no prejudice would be caused to the accused. The court dismissed the writ petition, upholding the orders of the Magistrate and the Sessions Court.
Headnote
A) Criminal Procedure Code - Amendment of Complaint - Inherent Powers - Section 138 Negotiable Instruments Act, 1881 - The court held that a complaint under Section 138 of the Negotiable Instruments Act can be amended to correct typographical errors in dates and amounts, even after the accused has pleaded not guilty, as such amendment does not change the substratum of the case and is in the interest of justice. The Magistrate's order allowing amendment was upheld. (Paras 1-5)
Issue of Consideration
Whether the Magistrate was justified in allowing amendment of the complaint to correct typographical errors in dates and amounts after the accused had pleaded not guilty.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the Magistrate and the Sessions Court allowing the amendment.
Law Points
- Amendment of complaint
- Section 138 Negotiable Instruments Act
- 1881
- typographical error
- correction of dates and amounts
- Criminal Procedure Code
- 1973
- inherent powers of court
Case Details
2013 LawText (BOM) (10) 3
Criminal Writ Petition No.382 of 2013
Shri Vijay Sharma for petitioner, Shri A.B. Shinde for respondent no.1, Mr. V.P. Kadam, APP for respondent no.2
Madan s/o Tulshiram Hembade
Ashok Sonaji Hembade, The State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging the order allowing amendment of complaint under Section 138 of the Negotiable Instruments Act.
Remedy Sought
The petitioner (accused) sought to quash the order of the Magistrate allowing amendment of the complaint and the order of the Sessions Court dismissing the revision.
Filing Reason
The petitioner challenged the Magistrate's order allowing the complainant to amend the complaint to correct a typographical error in the date and amount of a loan transaction.
Previous Decisions
The Magistrate allowed the amendment application (Exh.14) on 20.1.2011. The Sessions Court dismissed the revision against that order.
Issues
Whether the Magistrate was justified in allowing amendment of the complaint after the accused had pleaded not guilty.
Whether the amendment changed the substratum of the case.
Submissions/Arguments
The petitioner argued that the amendment was not a mere typographical error but changed the very basis of the complaint.
The respondent argued that the amendment was formal and arithmetical, and no prejudice would be caused to the accused.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act can be amended to correct typographical errors in dates and amounts, even after the accused has pleaded not guilty, as long as the amendment does not change the substratum of the case and is in the interest of justice.
Judgment Excerpts
The substance of the complaint is that, the complainant had advanced a hand loan of Rs.10,00,000/- to the accused...
The complainant mentioned that in paragraph No.2 of the complaint he had given details of the hand loan... but there were some typographical mistakes in dates and amounts.
Procedural History
The complaint was filed in S.C.C.No.315/2010 before the Judicial Magistrate First Class, Nanded. The accused pleaded not guilty on 21.12.2010. On 20.1.2011, the complainant filed an application (Exh.14) for amendment, which was allowed by the Magistrate. The accused filed a revision before the Sessions Court, which was dismissed. The accused then filed the present criminal writ petition before the Bombay High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
