Loan Amount Forming Basis Of Complaint U/S 138 NI Act Cannot Be Amended After Adducing Evidence And Cross-Examination: Orissa High Court

The Orissa High Court has held that a complainant under Section 138 of the Negotiable Instruments Act (NI Act) cannot be allowed to amend his complaint petition to change the loan amount which formed the basis of the complaint, especially when he adduced evidence stating the same amount.

While setting aside an order allowing such amendment, a Single Bench of Justice Sashikanta Mishra observed,

“Nevertheless, facts remains that the loan amount cannot undergo a change because the same forms the very basis of the complaint. This would certainly change the very nature and character of the case. Obviously, the complainant cannot be permitted to change the very foundation of his case midway during trial.”

The Opposite Party filed the complaint in the Court below claiming that the accused-petitioner had taken a sum of Rs. 6,60,000/- from him with assurance to return the same within 15 days. However, he did not repay the amount. After much persuasion, the petitioner issued a cheque amounting to Rs.7,20,000/-.

However, when the said cheque was presented at the Bank, it was dishonoured on the ground of insufficient funds. The complainant therefore, issued a legal notice to the accused to recover the amount, but the same not having been paid, he filed the complaint.

In course of hearing and after examination of the complainant and other witnesses, the complainant filed a petition under Order 6, Rule 17 of CPC to amend the complaint petition as well as his evidence affidavit. It was specifically claimed that the figure Rs.7,20,000/- should be mentioned in the complaint petition substituting the figure Rs.6,60,000/-. Similarly, the evidence affidavit was also sought to be changed.

The petitioner filed a written objection taking the stand that the proposed amendment would change the very nature and character of the case, thereby causing serious prejudice to him. However, the Court below allowed the petition. The petitioner, therefore, approached the High Court with a prayer to set aside the order allowing such amendment.

It was argued for the petitioner that he had taken Rs.6,60,000/- against which he issued a cheque of Rs.7,20,000/-. Upon dishonour of the cheque, the complainant served legal notice and filed the complaint petition mentioning Rs. 6,60,000/-. He also laid evidence mentioning the same amount. Now, by seeking to change the amount to Rs.7,20,000/-, the complainant wants to get higher amount.

Court’s Observations

The Court perused the legal notice issued by the complainant’s Advocate which revealed that the accused had taken a sum of Rs.6,60,000/-. The complaint was filed exactly on the same facts. The complainant adduced his evidence in the form of an affidavit also stating the same facts. He was cross-examined by the accused on such basis.

However, thereafter he sought an amendment to the complaint taking the stand that the amount of Rs. 6,60,000/- was wrongly typed. While disapproving such argument of the complainant, the Court said,

“This Court fails to understand as to how this can be treated as a typographical error when the legal notice itself mentions the loan amount as Rs.6,60,000/-. Moreover, the complainant in his evidence affidavit has also stated that a sum of Rs.6,60,000/- was taken by the Petitioner on 30th November, 2019. He was cross-examined on such statement on oath. Moreover, he stated in his evidence affidavit that the same was drafted as per his dictation and after understanding its contents, he had put his signature on it.”

Again, in cross-examination the complainant admitted to have stated that he had given Rs.6,60,000/- to the petitioner-accused. Thus, after taking all materials on record into consideration, the Court concluded that the amount of loan was actually stated to be Rs.6,60,000/- and the loan amount cannot undergo a change because the same forms the very basis of the complaint.

“It cannot be believed that the so-called typographical error in the complaint petition came to the notice of the complainant only after he had adduced evidence in the case,” the Court remarked.

Accordingly, the impugned order of the Court below allowing amendment to the petition was set aside.

Case Title: Chhayakant Acharya v. Samitav Pani

Case No.: CRLMC No. 1218 of 2023

Date of Judgment: May 04, 2023

Counsel for the Petitioner: Mr. Suryakanta Dash, Advocate

Counsel for the Respondent: None

Citation: 2023 LiveLaw (Ori) 56

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