2006 ALL MR (Cri) 783
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

A.H. JOSHI, J.

Balasaheb S/O. Pandharinath Borade Vs. Abdulla S/O. Mohammad Bagwan

Criminal Writ Petition No.284 of 2005

21st December, 2005

Petitioner Counsel: Shri. D. J. CHOUDHARI
Respondent Counsel: Shri. B. R. SONTAKKE PATIL

Criminal P.C. (1973), S.482 - Application for correction in the cheque - Objection to - Objection though legal, not raised bonafide - Objection is liable to be rejected. 2004 ALL MR (Cri) JOURNAL 73 and 2001 ALL MR (Cri) 1961 (S.C.) - Referred to. (Para 9)

Cases Cited:
Bhim Singh Vs. Kan Singh, 2005 ALL MR (Cri) JOURNAL 70=2004 Cri.L.J. 4306 [Para 6,11]
Maan Agro Centre Vs. Eid Parry (India) Ltd., 2005 ALL MR (Cri) 934=2005(2) Mah.L.J. 44 [Para 6,11]
Mahadev Vs. State of Rajasthan, 1997 Cri.L.J. 1614 [Para 8]
Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd., 2001 ALL MR (Cri) 1961 (S.C.)=2002(1) Mah.L.J. 81 [Para 8]
Behram S. Doctor Vs. State of Maharashtra, 2003 ALL MR (Cri) 1633=2003 Bom.C.R. (Cri) 1769 [Para 8]
TCI Finance Ltd., Secunderabad Vs. State of A. P., 2004 ALL MR (Cri) JOURNAL 73=2004(2) DCR 211 [Para 8]


JUDGMENT

JUDGMENT :- 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 Vs. Kan Singh reported in 2004 Cri.L.J. 4306 : [2005 ALL MR (Cri) JOURNAL 70];

(ii) Maan Agro Centre Vs. Eid Parry (India) Ltd. and another reported in 2005(2) Maharashtra Law Journal 44 : [2005 ALL MR (Cri) 934].

7. Relief sought in this petition is opposed on the grounds :

(a) That the order subject matter is capable for revision U/s.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 Vs. State of Rajasthan and another reported in 1997 Cri.L.J. 1614;

(ii) Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd. and another reported in 2002(1) Maharashtra Law Journal 81 : [2001 ALL MR (Cri) 1961 (S.C.)];

(iii) Behram S. Doctor Vs. State of Maharashtra and another reported in 2003 Bom.C.R. (Cri) 1769 : [2003 ALL MR (Cri) 1633];

(iv) TCI Finance Ltd. Secunderabad Vs. State of A. P. and another reported in 2004(2) DCR 211 : [2004 ALL MR (Cri) JOURNAL 73].

9. In so far 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, beneficaries 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 bonafide 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 [2005 ALL MR (Cri) JOURNAL 70] (supra) as well as the case of Maan Agro Centre [2005 ALL MR (Cri) 934] 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.

Petition allowed.