S.138 NI Act | Rajasthan High Court Permits Correction Of Date Of Presentation And Dishonour Of Cheque In Complaint Petition

Rajasthan High Court has allowed a petition seeking amendment in a complaint under Section 138 of the NI Act and affidavit annexed to correct the typographical errors in relation to the dates of presentation and dishonour of cheque.

The Court relied upon the Supreme Court case of S.R. Sukumar v Sunaad Raghuram, in which it was held that even if there is no specific provision in CrPC to amend a complaint or a petition, petitions seeking such amendments to correct the curable infirmities can be allowed.

“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, 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.”

The bench of Justice Anil Kumar Upman was hearing a petition filed against the dismissal of a revision petition against trial court order that had rejected the petition for amendment of the complaint filed by the petitioner under Section 138, NI Act.

It was the case of the petitioner that the dishonoured cheque was presented by him to his banker on December 3, 2015 and the same got dishonoured on December 4, 2015. However, in the legal notice sent to the accused as well as in the original complaint the date for presentation and dishonour of the cheque were inadvertently mentioned as November 3, 2015 and November 4, 2015 respectively. The counsel for the petitioner argued that the mistake of dates occurred on account of some inadvertent typographical error, however, the annexed documents clearly depicted the correct dates. Hence, the trial court and the revisional court committed illegality and perversity in rejecting the amendment application.

Hearing the contention of the parties, the Court took into account two facts. Firstly, the pay-in-slip clearly showed the date on which the cheque was presented and secondly, the statement of account of the petitioner reflected the date of dishonour of the cheque. The Court observed that the trial court should have considered the documents while taking cognizance that could have presented these errors at the very beginning.

Furthermore, the Court also said that an aggrieved needs to serve legal notice to the accused within 30 days of receiving information of cheque dishonour. In the present case, the notice was served on December 9, 2015. If the cheque would have been dishonoured on November 4, 2015, the limitation period of 30 days which was ending on December 4, 2015, would have barred the trial court from taking cognizance of the case. Since the cognizance had been taken, it could be said that even the trial court considered the correct date of dishonour i.e. December 4, 2015, instead of the incorrect one mentioned in the complaint.

In the background of this analysis, the Court set aside the orders passed by the trial court and the revisional court that had rejected the amendment petition. Accordingly, the petition was allowed to amend the complaint and the annexed affidavit.

Title: Mahaveer Prasad Suman v Lalit Mohan Sharma

Citation: 2024 LiveLaw (Raj) 137

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