S.138 NI Act | Rajasthan High Court Allows Amending Of Date Of Presentation And Dishonour Of Cheque In Complaint Petition
S.138 NI Act | Rajasthan High Court Allows Amending Of Date Of Presentation And Dishonour Of Cheque In Complaint Petition
The Rajasthan High Court has allowed a petition that sought amendment in a complaint under Section 138 of the Negotiable Instruments Act (NI Act) and affidavit to correct the typographical errors in relation to the dates of presentation and dishonour of cheque.
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.
The petitioner's counsel argued that the incorrect dates resulted from inadvertent typographical errors, whereas the attached documents clearly indicated the accurate dates. Consequently, both the trial court and the appellate court erred and acted unjustly in rejecting the application for amendment. According to the petitioner, the cheque in question was presented to his banker on December 3, 2015, and was dishonoured on December 4, 2015. However, the legal notice sent to the accused and the original complaint mistakenly stated the dates of presentation and dishonour as November 3, 2015, and November 4, 2015, respectively.
Moreover, the Court emphasized that an aggrieved party must serve a legal notice to the accused within 30 days of receiving information about the dishonour of the cheque. In this instance, the notice was delivered on December 9, 2015. Had the cheque been dishonoured on November 4, 2015, the limitation period of 30 days, which would have ended on December 4, 2015, would have barred the trial court from taking cognizance of the case. The fact that the trial court did take cognizance suggests that it recognized the correct date of dishonour, namely December 4, 2015, as opposed to the incorrect date mentioned in the complaint.
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.
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.
The Court observed, “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. 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.”
