“Procedure as Handmaiden, not Mistress” – Post-Cognizance Amendment of Criminal Complaints Validated by the Supreme Court

Introduction

The Supreme Court in Bansal Milk Chilling Centre v. Rana Milk Food Pvt. Ltd., 2025 INSC 899, has laid down a significant precedent on the scope of amending criminal complaints after cognizance has been taken, especially in prosecutions under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

The appellant (complainant) sold dairy products to the respondent company which issued three cheques totalling ₹14,00,000. The cheques were dishonoured, triggering a complaint under Section 138 NI Act.
A typographical error described the goods sold as “Desi Ghee (milk products)” instead of “milk”. Before cross-examination commenced, the complainant sought to amend the pleading. The trial court allowed the amendment; the High Court reversed it, holding that the change altered the nature of the complaint and was aimed at evading GST. The Supreme Court has now restored the trial court’s order, clarifying the law on amendability.

Summary of the Judgment

• Leave to appeal was granted; the Court allowed the appeal.
• The Court held that criminal courts possess power to permit amendments to a written complaint even after cognizance, provided:
  • the amendment cures a curable defect or infirmity;
  • no prejudice is caused to the accused; and
  • the core nature of the offence remains unchanged.
• The High Court’s focus on GST liability was irrelevant to the issue before the criminal court.
• The matter is remitted to the trial court for expeditious trial with liberty to parties to recall witnesses if necessary.

Analysis

Precedents Cited

1. S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609
   Recognised the power of criminal courts to allow amendments where (a) the defect is curable, (b) no prejudice ensues. The respondent tried to distinguish it on the ground that Sukumar involved pre-cognizance stage; the Supreme Court rejected this distinction, stressing that Sukumar was grounded on U.P. Pollution Control Board.
2. U.P. Pollution Control Board v. Modi Distillery, (1987) 3 SCC 684
   A post-cognizance scenario where the Court impliedly approved amendment/remittal to cure a technical defect (wrong arraying of the company).
3. Kunapareddy v. Kunapareddy, (2016) 11 SCC 774
   Re-affirmed that criminal courts are not powerless to allow amendments in appropriate cases.
4. Munish Kumar Gupta v. Mittal Trading Co., 2024 SCC OnLine 1732
   Distinguished by the Court. There, amendment sought to change the date on a cheque—an aspect central to limitation and liability—hence disallowed.

Legal Reasoning

Justice K.V. Viswanathan, speaking for the Bench, reiterated the principle that procedure exists to further, not frustrate, justice. The reasoning unfolds in four layers:

1. Textual Silence is Not Disabling
   The Criminal Procedure Code (CrPC) contains no express provision for amendment of complaints, but neither does it prohibit the same. The Court analogised to Sections 216–217 CrPC (alteration of charges) to illustrate legislative acceptance of mid-trial corrections, hinging on the prejudice test.
2. Curable versus Incurable Defects
   Leveraging Sukumar, the Court emphasised that curable irregularities—such as misdescription of goods—can be rectified formally. What matters is the substance of the offence, not the typographical label.
3. Absence of Prejudice
   Since the complainant’s evidence had barely begun, the defence could not claim surprise or unfair disadvantage. The accused retain the right to cross-examine on the amended pleadings and recall witnesses.
4. Irrelevance of Collateral Statutes
   The High Court’s speculation on GST avoidance was deemed extraneous. A criminal court deciding an NI Act case is not the forum for determining tax liability.

Impact

The judgment will likely produce ripple effects in several directions:

• Procedural Flexibility in NI Act Litigation
  Accused can no longer rely solely on minor drafting errors to derail prosecutions. Trial courts are empowered—and now encouraged—to permit corrective amendments where justice demands.
• Guidance for BNSS 2023 Regime
  The Court referenced corresponding provisions (Sections 239–240 BNSS) signalling continuity of this liberal approach under the new code.
• Corporate & Vicarious Liability Cases
  The precedent strengthens complainants’ ability to rectify mis-descriptions of corporate entities or officers, thereby preventing technical acquittals.
• Strategic Litigation Considerations
  Defence counsel will need to focus on substantive defences—absence of debt, payment, etc.—rather than procedural missteps.

Complex Concepts Simplified

• Cognizance: The moment a magistrate applies his judicial mind to the facts of the complaint to decide whether there is sufficient ground to proceed. It is not the same as issuance of summons (though usually follows immediately).
• Section 138 NI Act: Criminalises dishonour of a cheque for insufficiency of funds if statutory steps (presentation, notice, non-payment) are satisfied.
• Curable v. Incurable Defect: A curable defect can be corrected without rewriting the cause of action (e.g., mis-description, clerical errors). An incurable defect goes to the root (e.g., limitation bar, lack of mandatory statutory notice).
• Prejudice to Accused: Real disadvantage affecting the ability to defend; mere inconvenience does not qualify.
• Section 216/217 CrPC: Allow courts to alter charges anytime before judgment and grant corresponding rights to recall witnesses, reflecting a balancing of fairness and flexibility.

Conclusion

Bansal Milk Chilling Centre cements the proposition that procedural rectitude must yield to substantive justice. By affirming that criminal complaints under Section 138 NI Act can be amended even after cognizance—subject to the prejudice test—the Supreme Court has:

• Re-aligned lower courts with earlier Supreme Court jurisprudence (Sukumar, Modi Distillery).
• Injected much-needed flexibility into cheque-dishonour trials, reducing scope for technical knock-outs.
• Provided an interpretive bridge for analogous provisions under the forthcoming BNSS 2023.

The decision underscores that while procedure guides the journey, it must never obstruct the destination of justice.