Amendment of complaint u/s 138 n.i act
HIRAL THAKKAR
(Querist) 10 September 2012
This query is : Resolved
If there are genuine transaction of cheating and complaint u/s 138 of N.I Act is already filed and summons are issued. Can the complainant now amend the complaint to include section 420 of N.I Act and prayers to that effect.
Although the magistrate do not have inherent powers but then what is the solution.
PARTHA P BORBORA
(Expert) 10 September 2012
no amendment shall be allowed in any criminal case as well as the case was filed under NI Act so sec 138 is the proper penel provision. No need to attract 420 IPC.
R.K Nanda
(Expert) 10 September 2012
no,not at all.
Advocate Bhartesh goyal
(Expert) 10 September 2012
No any provision in Cr.P.C to amend complaint.Apart from this sec 420 0f I.P.C can not be add in cheque bouncing case.you can initiate separate proceeding for cheating.
ajay sethi
(Expert) 10 September 2012
file separate complaint for cheating .
judgment delivered in Harinath Poddar Vs. State 1978
Crl.J. 1018 wherein it has been held:
“Separate prosecution for offences of cheating and dishonour of cheque in a prosecution u/s 138 of
NI Act, the Mens-rea viz fraudulent or dishonest intention at the time of issuance of cheques need
be proved, however, in the prosecution u/s 420 mens rea is an important ingredient to be
established that the cheque was issued by the accused to discharge legally enforceable debt or other
liability. This ingredient need be proved in prosecution for the cheques u/s 420. Therefore, the two
offences covered by section 420 act are different offences even though sometimes they may be
overlapping and sometimes the accused persons may commit both the offences. The two offences
cannot be construed as arising out of the same set of facts, therefore Section 300 is not a bar for
separate prosecution for the punishment u/s 420 and 138 NI Act. The principle of double jeopardy
does not apply”
HIRAL THAKKAR
(Querist) 11 September 2012
Thank's all for your valuable replies. I shall take into consideration your replies.
