VERDICTUM.

IN

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 01.09.2025

+ W.P.(CRL) 1989/2022 & CRL.M.A. 17238/2022

HIMANSHU .....Petitioner

versus

TCNS CLOTHING CO. LTD .....Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. Gagan Gandhi, Mr. Vijay Kumar, Dr.
B.S. Chauhan, Ms. Luvika & Ms. Shraddha
Saxena, Advs.

For the Respondent : Mr. Nitin Sharma, Adv. along with Mr.
Jatin Kumar, AR of the Respondent.
Mr. Ashish Mohan, Sr. Adv., Amicus.

CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN

JUDGMENT

1. The present petition has been filed seeking quashing of

Complaint Case No. 2542/2019 pending before the learned
Metropolitan Magistrate ('MM'), South District, Saket Courts, New
Delhi, for offence under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881 ('NI Act').
2. Briefly stated, the facts of the case are that the petitioner is a
partner in the partnership firm namely– A & A Enterprises that

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entered into a Franchisee Agreement dated 28.12.2012 with the

respondent company namely– TCNS Clothing Co. Ltd. (hereafter
‘complainant’), who is in the business of sale of women’s apparel and
accessories under the brand name “W”, “Aurelia” and “Wishful”. In
pursuance of the Franchisee Agreement dated 28.12.2012, A & A
Enterprises was appointed as a retailer / retail operator of the products
of the respondent company and was to establish and operate a retail
outlet at Store No. 111, Moments Mall, Patel Road, New Delhi. It is
alleged that various products were delivered to the petitioner through
invoices in which Customer Code No. 119101 has been mentioned
and the same have been received by the petitioner. It is alleged that a
total sum of about Rs. 38,11,873/- is due on part of the petitioner. It is
alleged that in discharge of its liability the petitioner issued two
cheques, one bearing No. 000565 dated 27.09.2018 for a sum of Rs.
10,00,000/- and one being cheque No. 000566 dated 30.09.2018 for a
sum of Rs. 7,50,000/- both drawn on HDFC Bank, G-14, Kirti Nagar
Extension, New Delhi– 110015, in favour of the complainant.
3. It is alleged that the said cheques were dishonoured vide return
memo dated 21.12.2018 for reasons “Funds Insufficient”. Following
the dishonour of the cheques, the complainant sent a legal notice dated
14.01.2019, calling upon the petitioner to make payment towards the
dishonoured cheques within 15 days.
4. On the failure of the petitioner to make the payment, the
complainant filed the complaint under Section 138 of the NI Act
against the petitioner, alleging that the petitioner, being the sole

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proprietor of A & A Enterprises, had failed to discharge his financial

obligation in accordance with the terms of the Franchisee Agreement
dated 28.12.2018. In the memo of parties of the complaint, the name
of the signatory Rishi Kalia appears to have been added with a pen.
5. By order dated 05.03.2019, the learned MM issued summons
upon the petitioner. On 09.08.2019, the learned MM issued Bailable
Warrants against the petition, which were received back unexecuted,
whereafter the complainant was directed to verify the address of the
petitioner. By orders dated 03.03.2020, 26.02.2021, 06.10.2021,
07.12.2021 and 10.03.2022 the learned MM granted last and final
opportunity to the complainant to take steps in terms of the direction
to verify the address of the petitioner following which an affidavit was
filed by the complainant furnishing the fresh address of the petitioner.
By order dated 03.06.2022, Non Bailable Warrant got issued against
the petitioner, which was stayed by order dated 25.08.2022, on an
application filed by the petitioner seeking cancellation of Non Bailable
Warrant.
6. In the meantime, the petitioner approached this Court,
challenging his impleadment in the complaint in his personal capacity
as a sole proprietor, rather than as a partner of A & A Enterprises. He
also raised grievance over the fact that the accused firm itself had not
been made a party to the proceedings.
7. It is the case of the petitioner that despite knowing that A & A
Enterprises is a partnership concern in which the petitioner is merely a
partner, the respondent has deliberately proceeded against him in the

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capacity of a sole proprietor, and also deliberately furnished wrong

address of the petitioner for service of summons to prevent him from
being served. It is submitted that the respondent was well aware of the
fact that A & A Enterprises is a partnership concern in view of the
Franchisee Agreement dated 28.12.2012.
8. The learned counsel for the petitioner submitted that the
statutory notice was issued upon the petitioner in his individual
capacity while the cheques in question were issued by the partnership
concern. He relied on the partnership deed dated 25.10.2012, executed
between Sh. Usha Kalia, Rishi Kalia and the petitioner.
9. He submitted that the petitioner neither signed the cheques in
question, nor issued them, and thus, the prosecution against the
petitioner is not maintainable.
10. He further submitted, without prejudice, that the statutory notice
was issued by the respondent on 14.01.2018, whereas the cheques in
question were only issued in the month of September, 2018, and
therefore the notice was defective, non-est and bad in law. He placed
reliance on Harman Electronics (P) Ltd. v. National Panasonic India
(P) Ltd. : (2009) 1 SCC 720 to argue that the respondent has failed to
comply with the conditions with regard to service of notice, for
establishing an offence under Section 138 of the NI Act.
11. The learned counsel for the respondent submitted that the
petitioner represented himself as the sole proprietor of A & A
Enterprises and entered into the Agreement dated 28.12.2012, as a
proprietor. He submitted that the petitioner failed to disclose his actual

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identity while entering into the Agreement.

12. He submitted that the respondent had issued a Legal notice
dated 14.01.2019 after the dishonor of the cheques in question, and the
same was duly received by the petitioner, which he acknowledged in
his reply vide email dated 28.01.2019.
13. He submitted that the respondent made several attempts to serve
the legal notice on the address provided by the petitioner in the
ordinary course of business, however the same could not be served
upon the petitioner due to his mala fide actions.
14. He submitted that the amendment sought to be made by the
respondent relates merely to cure a simple infirmity which may be
allowed at any stage of the proceedings as the same does not change
the nature of the complaint. [Ref: U.P. Pollution Control Board v.
Modi Distillery : (1987) 3 SCC 684; Anil Hada v. Indian Acrylic Ltd.
: (2000) 1 SCC 1]
15. He argued that the matter requires consideration of evidence
and the filing of the present petition is the petitioner’s attempt to linger
the matter and mislead the Court in order to escape his financial
liability.
16. Senior Advocate Mr. Ashish Mohan, had been appointed by this
Court as an Amicus, to assist in determining the question of law
whether a complaint under Section 138 of the NI Act, which has been
filed impleading the accused on the basis of a mistaken form of the
entity, can be permitted to be amended at a post summoning stage.
Written submissions have been filed by the learned Amicus in this

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regard. It is submitted that although there is no specific provision in

the Code of Criminal Procedure, 1973 (‘CrPC’) for amendment of
complaint, however he has cited various judgements of the hon’ble
Apex Court wherein the general view expressed by the Hon’ble Court
has been that “curable infirmities” can be dealt with by permitting
amendment of the complaint. [Ref: S.R. Sukumar v. S. Sunaad
Raghuram : (2015) 9 SCC 609; U.P. Pollution Control Board v.
Modi Distillery : (1987) 3 SCC 684; Kunapareddy v. Kunapareddy
Swarna Kumari : (2016) 11 SCC 774]
17. Learned Amicus has cited views expressed by the Hon’ble High
Courts of Andhra Pradesh, Madhya Pradesh and Allahabad, allowing
the amendment in a criminal complaint filed under Section 138 of the
NI Act, where the amendment sought to be made relates to a simple
infirmity which is curable by means of a formal amendment. On the
contrary, the Hon’ble High Courts of Uttarakhand and Bombay have
rejected the argument that a complaint can be amended in a case
where the firm has not been arraigned as an accused.
18. At the outset, it is relevant to note that this Court can quash the
proceedings in NI Act cases, in exercise of its inherent jurisdiction
under Section 482 of the CrPC, if such unimpeachable material is
brought forth by the accused persons which indicates that they were
not concerned with the issuance of the cheques, or in case where legal
lacuna of such nature is pointed out which goes to the root of the
matter.
19. In the present case, the petitioner is seeking quashing of the

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summoning order dated 05.03.2019 and the complaint filed by the

respondent under the NI Act, on the ground that despite knowing that
A & A Enterprises is a partnership concern in which the petitioner is
merely a partner, the respondent has deliberately proceeded against
him in the capacity of a sole proprietor and has failed to arraign the
partnership concern. It is also alleged that the statutory notice was
issued upon the petitioner in his individual capacity while the cheques
in question were issued by the partnership concern.
20. The petitioner has placed reliance on the judgments passed in
Dilip Hariramani v. Bank of Baroda : (2022) 19 Comp Cas-OL 20
and Himanshu v. B. Shivamurthy : (2019) 3 SCC 797, wherein the
Hon’ble Apex Court, while relying on its earlier judgement passed in
Aneeta Hada v. Godfather Travels & Tours (P) Ltd.: (2012) 5 SCC
661 had quashed the proceedings against the accused Partner/ Director
of the firm/ company respectively, where neither any statutory demand
notice was ever served upon the company/ firm nor was it arraigned
as an accused in the complaint filed by the drawee under Section 138
of the NI Act. It was held that there was lack of compliance by the
drawee with the proviso of Section 138 of the NI Act.
21. In Aneeta Hada v. Godfather Travels & Tours (P) Ltd. (supra),
the moot point was whether any person, who has been mentioned in
Section 141(1) and 141(2) of the NI Act can be prosecuted without the
company being impleaded as an accused. The Hon’ble Apex Court
held that to sustain a prosecution under Section 141 of the NI Act,
other individuals can be made liable only by invoking the principle of

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vicarious liability, as specifically provided under the said provision,

however, it is essential that the company itself is arraigned as an
accused. It was observed as under:
38. From the aforesaid pronouncements, the principle that can be
culled out is that it is the bounden duty of the court to ascertain for
what purpose the legal fiction has been created. It is also the duty of
the court to imagine the fiction with all real consequences and
instances unless prohibited from doing so. That apart, the use of the
term “deemed” has to be read in its context and further, the fullest
logical purpose and import are to be understood. It is because in
modern legislation, the term “deemed” has been used for manifold
purposes. The object of the legislature has to be kept in mind.
39. The word “deemed” used in Section 141 of the Act applies to the
company and the persons responsible for the acts of the company. It
crystallises the corporate criminal liability and vicarious liability of a
person who is in charge of the company. What averments should be
required to make a person vicariously liable has been dealt with
in S.M.S. Pharmaceuticals Ltd. [(2005) 8 SCC 89 : 2005 SCC (Cri)
1975] In the said case, it has been opined that the criminal liability
on account of dishonour of cheque primarily falls on the drawee
(sic drawer) company and is extended to the officers of the company
and as there is a specific provision extending the liability to the
officers, the conditions incorporated in Section 141 are to be
satisfied.
xxxx xxxx xxxx
41. After so stating, it has been further held that while analysing
Section 141 of the Act, it will be seen that it operates in cases where
an offence under Section 138 is committed by a company. In para 18
of the judgment, it has been clearly held as follows: (S.M.S.
Pharmaceuticals Ltd. case [(2005) 8 SCC 89 : 2005 SCC (Cri) 1975] ,
SCC p. 102)
“18. … there is almost unanimous judicial opinion that
necessary averments ought to be contained in a complaint
before a person can be subjected to criminal process. A liability
under Section 141 of the Act is sought to be fastened
vicariously on a person connected with a company, the
principal accused being the company itself. It is a departure
from the rule in criminal law against vicarious liability.”
xxxx xxxx xxxx
43. A contention was raised before this Court on behalf of the State
of Madras that the conviction could be made on the basis of Section

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10 of the 1955 Act. The three-Judge Bench repelled the contention by

stating thus: (C.V. Parekh case [(1970) 3 SCC 491 : 1971 SCC (Cri)
97] , SCC p. 493, para 3)
“3. The learned counsel for the appellant, however, sought
conviction of the two respondents on the basis of Section 10 of
the Essential Commodities Act under which, if the person
contravening an order made under Section 3 (which covers an
order under the Iron and Steel Control Order, 1956), is a
company, every person who, at the time the contravention was
committed, was in charge of, and was responsible to, the
company for the conduct of the business of the company as well
as the company, shall be deemed to be guilty of the
contravention and shall be liable to be proceeded against and
punished accordingly. It was urged that the two respondents
were in charge of, and were responsible to the company for the
conduct of the business of the company and, consequently,
they must be held responsible for the sale and for thus
contravening the provisions of Clause (5) of the Iron and Steel
Control Order. This argument cannot be accepted, because it
ignores the first condition for the applicability of Section 10 to
the effect that the person contravening the order must be a
company itself. In the present case, there is no finding either
by the Magistrate or by the High Court that the sale in
contravention of Clause (5) of the Iron and Steel Control
Order was made by the company. In fact, the company was not
charged with the offence at all. The liability of the persons in
charge of the company only arises when the contravention is
by the company itself. Since, in this case, there is no evidence
and no finding that the company contravened Clause (5) of the
Iron and Steel Control Order, the two respondents could not be
held responsible. The actual contravention was by Kamdar and
Vallabhadas Thacker and any contravention by them would
not fasten responsibility on the respondents.”
(emphasis supplied)
The aforesaid paragraph clearly lays down that the first condition is
that the company should be held to be liable; a charge has to be
framed; a finding has to be recorded, and the liability of the persons
in charge of the company only arises when the contravention is by
the company itself.
xxxx xxxx xxxx
51. We have already opined that the decision in Sheoratan
Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter to
the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC

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(Cri) 97] which is by a larger Bench and hence, is a binding

precedent. On the aforesaid ratiocination, the decision in Anil
Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not
laying down the correct law as far as it states that the Director or
any other officer can be prosecuted without impleadment of the
company. Needless to emphasise, the matter would stand on a
different footing where there is some legal impediment and the
doctrine of lex non cogit ad impossibilia gets attracted.
52. At this juncture, we may usefully refer to the decision in U.P.
Pollution Control Board v. Modi Distillery [(1987) 3 SCC 684 : 1987
SCC (Cri) 632] . In the said case, the company was not arraigned as
an accused and, on that score, the High Court quashed the
proceeding against the others. A two-Judge Bench of this Court
observed as follows: (SCC p. 690, para 6)
“6. … Although as a pure proposition of law in the abstract the
learned Single Judge's view that there can be no vicarious
liability of the Chairman, Vice-Chairman, Managing Director
and members of the Board of Directors under sub-section (1)
or (2) of Section 47 of the Act unless there was a prosecution
against Modi Industries Ltd., the Company owning the
industrial unit, can be termed as correct, the objection raised
by the petitioners before the High Court ought to have been
viewed not in isolation but in the conspectus of facts and
events and not in vacuum. We have already pointed out that
the technical flaw in the complaint is attributable to the failure
of the industrial unit to furnish the requisite information
called for by the Board. Furthermore, the legal infirmity is of
such a nature which could be easily cured. Another
circumstance which brings out the narrow perspective of the
learned Single Judge is his failure to appreciate the fact that the
averment in para 2 has to be construed in the light of the
averments contained in paras 17, 18 and 19 which are to the
effect that the Chairman, Vice-Chairman, Managing Director
and members of the Board of Directors were also liable for the
alleged offence committed by the Company.”
Be it noted, the two-Judge Bench has correctly stated that there can
be no vicarious liability unless there is a prosecution against the
company owning the industrial unit but, regard being had to the
factual matrix, namely, the technical fault on the part of the
company to furnish the requisite information called for by the
Board, directed for making a formal amendment by the applicant
and substitute the name of the owning industrial unit. It is worth
noting that in the said case, M/s Modi Distilleries was arrayed as a

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party instead of M/s Modi Industries Ltd. Thus, it was a defective

complaint which was curable but, a pregnant one, the law laid down
as regards the primary liability of the company without which no
vicarious liability can be imposed has been appositely stated.
53. It is to be borne in mind that Section 141 of the Act is concerned
with the offences by the company. It makes the other persons
vicariously liable for commission of an offence on the part of the
company. As has been stated by us earlier, the vicarious liability gets
attracted when the condition precedent laid down in Section 141 of
the Act stands satisfied. There can be no dispute that as the liability
is penal in nature, a strict construction of the provision would be
necessitous and, in a way, the warrant.
xxxx xxxx xxxx
58. Applying the doctrine of strict construction, we are of the
considered opinion that commission of offence by the company is an
express condition precedent to attract the vicarious liability of
others. Thus, the words “as well as the company” appearing in the
section make it absolutely unmistakably clear that when the
company can be prosecuted, then only the persons mentioned in the
other categories could be vicariously liable for the offence subject to
the averments in the petition and proof thereof. One cannot be
oblivious of the fact that the company is a juristic person and it has its
own respectability. If a finding is recorded against it, it would create a
concavity in its reputation. There can be situations when the
corporate reputation is affected when a Director is indicted.
59. In view of our aforesaid analysis, we arrive at the irresistible
conclusion that for maintaining the prosecution under Section 141
of the Act, arraigning of a company as an accused is imperative. The
other categories of offenders can only be brought in the drag-net on
the touchstone of vicarious liability as the same has been stipulated in
the provision itself. We say so on the basis of the ratio laid down
in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a
three-Judge Bench decision. Thus, the view expressed in Sheoratan
Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly
lay down the law and, accordingly, is hereby overruled. The decision
in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled
with the qualifier as stated in para 51. The decision in Modi
Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated
to be restricted to its own facts as has been explained by us
hereinabove.”
(emphasis supplied)

22. The observations made in Aneeta Hada v. Godfather Travels &

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Tours (P) Ltd. (supra) can be summarised to state that when vicarious
liability under Section 141 of the Act is sought to be imposed on an
individual associated with a company, the company itself must be
treated as the principal accused. The Hon’ble Court, in para 43
referred to the decision in State of Madras v. C.V. Parekh : (1970) 3
SCC 491 wherein the appellant sought conviction of the two
respondents asserting that they were in charge of and were responsible
for the conduct of the business of the company and thus, they must be
held responsible for contravening the provisions of the Iron and Steel
Control Order in terms of Section 10 of the Essential Commodities
Act, 1955. The said Section 10 of the Essential Commodities Act,
1955 is pari materia with the provisions of Section 141 of the NI Act.
It was held that to apply Section 10 of the Essential Commodities Act,
1955 it is essential that the person contravening the order must be a
company itself. It was found that there was no evidence to the effect
that the company contravened the provisions of the Iron and Steel
Control Order, and therefore the two respondents could not be held
liable.
23. The Hon’ble Court also referred to the ratio in Anil Hada v.
Indian Acrylic Ltd. (supra) and U.P. Pollution Control Board v.
Modi Distillery (supra) which have been relied upon by the
respondent. In Anil Hada v. Indian Acrylic Ltd. (supra) the name of
company was not added in the complaint under section 138 of NI Act.
It was held that the provisions do not contain a condition that
prosecution of the company is sine qua non for prosecution of the

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other persons who fall within the second and the third categories. It
was further observed that the persons who are accused cannot escape
liability when the company cannot be prosecuted due to a legal snag
(where the doctrine of lex non cogit ad impossibilia gets attracted).
24. Aneeta Hada v. Godfather Travels & Tours (P) Ltd. (supra)
treated the ratio laid down in Anil Hada v. Indian Acrylic Ltd. (supra)
to be incorrect law to the extent that it permits the prosecution of a
Director or any other officer without the company being impleaded as
an accused.
25. Aneeta Hada v. Godfather Travels & Tours (P) Ltd. (supra)
affirmed the view taken by the two-Judge Bench in U.P. Pollution
Control Board v. Modi Distillery (supra), directing the complainant to
make a formal amendment in the complaint, noting that such a defect
in the complaint was curable in nature. While the Hon’ble Court in
Aneeta Hada v. Godfather Travels & Tours (P) Ltd. (supra) was of
the opinion that the view taken in U.P. Pollution Control Board v.
Modi Distillery (supra), was correct based on the factual matrix being
the fault on the part of the company to furnish the requisite
information called for by the complainant, in order to implead the
company, however, it was underscored that since the liability under
the NI Act is penal in nature, a strict construction of the provision
must be made. [Ref: para 58 of Aneeta Hada v. Godfather Travels &
Tours (P) Ltd. (supra)]
26. In view of the aforesaid discussion, it is clear for vicarious
liability under Section 141 of the NI Act to be imposed on an

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individual, the company must be arrayed as the principal accused.

Section 141 of the NI Act mandates that the company must be shown
to have committed the offence. In absence of such evidence,
individuals alone cannot be held liable. Although the provision ought
be construed strictly, it is also clear that where there is a simple/
curable infirmity in the complaint and neither does it change the
nature of the complaint nor cause prejudice to the accused persons, a
formal amendment in the complaint may be permitted.
27. In the case at hand, it is the case of the respondent that the
petitioner represented himself as the sole proprietor of A & A
Enterprises and entered into the Agreement dated 28.12.2012 for
operation and management of the store of the respondent, at shop
bearing No. 111, Moments Mall, Patel Nagar; New Delhi, in the
capacity of A & A Enterprises being a proprietorship. It is further
contended that the petitioner failed to disclose his actual identity while
entering into the Agreement.
28. It is contended on behalf of the respondent company that
despite the fact that the Legal Notice dated 14.01.2019 was only
addressed to the petitioner, based on the information provided by the
petitioner himself, however the same was also sent by way of e-mail
dated 14.01.2019, addressed to A & A Enterprises on their e-mail
namely– [email protected] and
[email protected], thereby complying with the statutory
provision for service of notice. Reliance is also placed in this regard,
on the reply sent by the petitioner, vide e-mail dated 28.01.2019,

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acknowledging the service of notice dated 14.01.2019.

29. It is contended on behalf of the petitioner that the statutory
notice was issued by the respondent on 14.01.2018, whereas the
cheques in question were only issued in the month of September,
2018, and therefore the notice was defective, non-est and bad in law.
This Court has perused the Legal Notice issued by the respondent.
While the Legal notice reflects that it is dated as “14.01.2018”, it
records that the subject cheques were only dishonoured vide return
memos dated 21.12.2018. On such a conspectus of facts, it is apparent
that the date mentioned in the Legal Notice is only a typographical
error.
30. Perusal of the record reveals that the subject cheques drawn in
the name of the respondent have been signed by Sh. Rishi Kalia who
is one of the three partners in the alleged partnership firm of the
petitioner. The memo of parties filed along with the complaint entails
the name of the accused as “Sh. Himanshu (Proprietor of A and A
Enterprises)”. It appears that the name of the signatory of the subject
cheque- Sh. Rishi Kalia has been added with a pen, subsequent to
filing of the complaint.
31. It is pertinent to note that the Agreement dated 28.12.2012
placed on record by the respondent refers to the accused company/
firm as under:
“A & A Enterprises, a proprietorship firm having its Registered Office
at C-144 B, Moti Nagar, New Delhi-110015 represented proprietor
Mr. Himanshu, hereinafter referred to as the “Retail Operator”

32. While the copy of the Agreement dated 28.12.2012 placed on

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record by the petitioner refers to the accused company/ firm as under:

“A & A Enterprises, a partnership firm having its Registered Office at
C-144 B, Moti Nagar, New Delhi-110015 represented by its partner
Mr. Himanshu, hereinafter referred to as the “Retail Operator”

33. It is also observed that the respondent/ complainant has filed the
complaint under Section 138 read with Section 142 of the NI Act and
has not invoked Section 141 of the NI Act while filing the present
complaint.
34. Although, it is the case of the respondent that the error of non-
arraignment of the firm as an accused is not fatal to the proceedings
and seeks an opportunity to amend the complaint instead of quashing
the complaint, it is relevant to see whether the same is a curable
infirmity or whether the amendment would prejudice the accused
persons or change the nature of the complaint.
35. Now, it will be useful to refer to the observation made by the
Hon’ble Court in the case of S.R. Sukumar v. S. Sunaad Raghuram :
(2015) 9 SCC 609. The same is reproduced hereunder:
“19. What is discernible from U.P. Pollution Control Board
case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily
curable legal infirmity could be cured by means of a formal
application for amendment. 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.
20. In the instant case, the amendment application was filed on 24-5-

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2007 to carry out the amendment by adding Paras 11(a) and 11(b).
Though, the proposed amendment was not a formal amendment, but a
substantial one, the Magistrate allowed the amendment application
mainly on the ground that no cognizance was taken of the complaint
before the disposal of amendment application. Firstly, the Magistrate
was yet to apply the judicial mind to the contents of the complaint
and had not taken cognizance of the matter. Secondly, since
summons was yet to be ordered to be issued to the accused, no
prejudice would be caused to the accused. Thirdly, the amendment
did not change the original nature of the complaint being one for
defamation. Fourthly, the publication of poem Khalnayakaru being
in the nature of subsequent event created a new cause of action in
favour of the respondent which could have been prosecuted by the
respondent by filing a separate complaint and therefore, to avoid
multiplicity of proceedings, the trial court allowed the amendment
application. Considering these factors which weighed in the mind of
the courts below, in our view, the High Court rightly declined to
interfere with the order passed by the Magistrate allowing the
amendment application and the impugned order does not suffer
from any serious infirmity warranting interference in exercise of
jurisdiction under Article 136 of the Constitution.”
(emphasis supplied)

36. As observed above, modification of a complaint may be

permitted where cognizance has not yet been taken, the alteration does
not alter the essential character of the complaint, the defect sought to
be rectified is one which can be cured through a formal amendment,
and where such modification does not result in prejudice to the
accused or the opposite party.
37. In the present case, it is not in dispute that the complaint was
instituted describing the petitioner as the sole proprietor of A & A
Enterprises, whereas the material on record suggests that the cheques
in question were signed by another partner namely– Sh. Rishi Kalia,
on behalf of the partnership concern. Prima facie, the arraignment of

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the petitioner in his individual capacity, without impleading the firm,

is inconsistent with the settled position of law as laid down in Aneeta
Hada v. Godfather Travels & Tours (P) Ltd. (supra).
38. However, a closer scrutiny of the proceedings before the
learned MM reveals that although cognizance was taken in the present
matter, the summons issued to the petitioner remained unserved on
multiple occasions. Thereafter, bailable warrants were issued, which
also remained unexecuted, and the complainant was directed to verify
the address of the petitioner. Even the direction was not complied
with, and before the accused could effectively enter appearance, the
present petition came to be filed before this Court. Though non-
bailable warrants were issued on 03.06.2022, the same were stayed
upon appearance of the counsel for the accused, and the matter was
fixed for furnishing bail bonds vide order dated 01.09.2022.
39. Thus, the stage of effective trial has not commenced yet. The
accused has not yet faced the process of recording of plea, evidence,
or cross-examination. In such circumstances, it cannot be said that
permitting an amendment to implead the partnership firm would cause
prejudice to the petitioner. On the contrary, refusal to allow such an
amendment would result in stifling of proceedings on a mere
technicality, thereby defeating the object of Section 138 of the NI Act.
40. It is observed that the complaint contains certain typographical
errors, which, however, do not appear to be fatal to the substance of
the case.
41. It is apposite to recall the dictum of the Hon’ble Apex Court in

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U.P. Pollution Control Board v. Modi Distillery (supra) wherein it

was observed that a complaint should not be dismissed at the threshold
merely on account of a curable legal infirmity, and that the Court may
allow appropriate correction to advance the cause of justice. The
present case, in the considered opinion of this Court, falls within that
category where the amendment sought is to rectify a simple and
formal infirmity does not alter the nature of the complaint or cause
prejudice to the accused, since the description of the accused entity
can be corrected without changing the substratum of the allegations or
setting up a new case.
42. The complaint was filed way back in the year 2019. In the
interest of justice, the respondent should be granted an opportunity to
file an application to amend the complaint and rectify these errors, so
as to ensure proper adjudication on merits.
43. While it is noted that the summoning order dated 05.03.2019
issued by the learned MM is non est, as it merely records the
summoning of the petitioner, this deficiency alone does not warrant
quashing of the complaint. The complaint, being otherwise
maintainable, should not be quashed solely on this technical ground.
44. This Court is of the view that the non-impleadment of the firm
is a curable defect. In view of the above, the respondent/complainant
is permitted to file an application seeking amendment of the
complaint, by impleading necessary parties and to suitably amend the
memo of parties in the complaint.
45. The matter has been pending before this Court since the year

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2022 and the complaint was also filed way back in the year 2019 and
remained unserved for a long period. The delay in adjudication of the
matter, can largely be attributed to the complainant and therefore, in
the opinion of this Court, equities would be balanced by adequately
compensating the petitioner. Therefore, it is directed that the learned
Trial Court shall consider the application, if any, filed by the
respondent / complainant keeping in view the observations made in
the present judgment only if the same is filed within a period of two
months from date, subject to payment of compensatory cost of
₹35,000/- by the complainant to the petitioner.
46. In view of the above discussion, the present petition stands
dismissed with the aforesaid directions. Pending application also
stands disposed of.

AMIT MAHAJAN, J
SEPTEMBER 1, 2025

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