JUDGMENT A.H. Joshi, J.
1. Heard.
2. Rule.
3. Shri B. R. Sontakke Patil, learned advocate for respondent waives service.
4. Rule made returnable forthwith by consent of the parties.
5. The petitioner moved application in the trial Court praying for correction in the cheque number 176087 as cheque No. 176037. The application was opposed and has been rejected. The learned trial Judge observed as follows :
7. ...It is one of the defence of the accused that, cheque placed on record is not the cheque issued by the accused and therefore if the application is allowed and amendment intended to be carried out, is allowed, there is every likelihood of the rights of the accused will be prejudice....
(portion extracted from para 7 of order below Exh.63 in S.C.C. No. 586/99) Learned trial Judge rejected the application holding that from plain reading of the xerox copy of the cheque which is placed on record, there is no room for confusion in reading all the digits. This order is challenged in this petition. Learned advocate urged that confusion in number had occurred due to rubber stamp which was overlapping on the cheque number. Moreover, mistake in reading is a mistake of fact for reasons whatsoever. Moreover, there is no change whatsoever in the complaint.
6. The learned advocate placed reliance on reported judgments namely :
(i) Bhim Singh v. Kan Singh reported in 2004 Cri.LJ. 4306; (ii) Maan Agro Centre v. Eid Parry (India) Ltd. and Anr. reported in 2005 (2) Mh.L.J. 44
7. . Relief sought in this petition is opposed on the grounds:
(a) That the order subject matter is capable for revision under Section 397.
(b) Any variation as to cheque number in the notice shall result in serious prejudice to the accused and the complaint was liable to be dismissed.
8. Learned advocate Mr. B.R. Patil, relied on following judgments :
(i) Mahadev v. State of Rajasthan and Anr. reported in 7997 Cri.LJ. 1614; (ii) Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Anr. reported in 2002(1) Mh.LJ. 81; (iii) Behram S. Doctor v. State of Maharashtra and Anr. reported in 2003(4) Mh.LJ. 505 : 2003 BCR (Cri) 1769; (iv) TCI Finance Ltd. Secunderabad v. State of A.P. and Anr. reported in 2004(2) OCR 277;
9. Insofar as objection as to entertaining the Criminal Writ Petition is concerned, this Court is of the view that the objection would be entertainable, however, if accepted, it would mean nothing more than wasting the time already lost by this Court and then directing the petitioner to go to the Sessions Court and lose further time. A possibility of second round to this Court cannot be overruled. Moreover, beneficiaries of this delay would be the person who is raising objection on account of alternate remedy. This Court find that though, the objection is legal, it is not raised bona fide and is therefore, liable to be rejected.
Other judgment relied upon by learned advocate for the respondent need not be considered, since those pertain to the merit of the case i.e. defence being available etc.
10. On the facts of the case it is seen that while the petitioner is seeking correction in the petition, the cheque relied upon is on record, number whereof is the same. The cheque return memos which are on record also pertain to the same cheque. There would be no change whatsoever except one digit appearing in the number of cheque. Since all documents are on record and the accused is not going to be taken by surprise due to the amendment/correction in question.
11. This Court is of the view that it would like to concur with view taken by Rajasthan High Court in the case of Bhim Singh (supra) as well as the case of Maan Agro Centre decided by this Court (supra), that the amendment or correction would be permissible.
12. It cannot be said on facts of this case that the amendment will ipso facto prejudice the defence of the accused.
13. It is clarified that whatever defences are available to the accused shall remain unaffected.
14. In the result, this Court passes following order ; Rule is made absolute. Petitioner's application for amendment Exh.63 is allowed.