1. Being aggrieved by the order dated 10.9.2008 passed by JMFC, Ujjain, in Criminal Case No. 12504/06 whereby the application filed by the respondent for amendment in the complaint was allowed, the present petition has been filed.

2. Short facts of the case are that respondent filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioners on 1.7.2005 wherein it was alleged that on account of commercial transaction between the petitioners and respondent, petitioner No.1 issued a cheque of Rs.1,00,001/- on 23.5.2005 bearing cheque No. 739944 of State Bank of Indore and another cheque of Rs. 5,00,000/- bearing cheque No. 739949 was issued on 15.3.2005. It was alleged that upon presentation, the cheque was not cleared and amount was not paid inspite of notice, hence the petitioners committed an offence which is punishable under Section 138 of the Negotiable instruments Act (which shall be referred hereinafter as the ''NIAct''). In support of complaint, an affidavit of respondent was also filed.

3. After taking cognizance the notices were issued to the petitioners. After framing of charge, the case was fixed for recording of evidence. Respondent also entered into the witness box and supported the complaint. Thereafter, when the case was fixed for final arguments, at that stage an application was filed by the respondent on 13.8.2008 wherein it was prayed that wrong cheque number has been mentioned mistakenly and respondent may be permitted to put the correct cheque number in the plaint.

4. The application was contested by the petitioners vehementally. After hearing the parties, the learned trial Court allowed the application, against which the present petition has been filed.

5. Learned counsel for petitioners submits that right from the beginning the case of respondent was that cheque of Rs.5 lacs was bearing No. 739949, in support of which the statement was also given under Section 200, Cr.P.C. by furnishing affidavit in which also the same cheque number was mentioned. Thereafter after taking cognizance and after notice to the petitioner, the statement was recorded in the Court where also the same cheque number was mentioned, upon which the respondent was cross-examined. It is submitted that in the cross-examination it was brought in defence that no cheque bearing number 739949 was issued by the petitioners. Then an application was filed when the evidence of the parties was closed. It is submitted that at the fag end of trial, the application has been filed which has caused material prejudice to the petitioners by allowing the application. It is submitted that in fact the claim. of the respondent in the present case, has become barred by time. Learned Counsel further submits that there is no provision in the Code of Criminal Procedure which permits the complainant to amend the complaint. Apart from this it is submitted that since in the statement given by the respondent on oath, repeatedly the cheque number has been said to be 739949, then the respondent cannot be allowed to change the statement by putting the cheque number 739940.

6. For this contention, reliance is placed on a decision in the matter of Kunstocom Electronics (1) Ltd. v. State of M.P., 2002 (5) MPLJ 178, whereby this Court held that "there is a no provision in the Code of Criminal Procedure giving right to file an application for amendment in the pleading and give power to the Lower Court to allow the same.

7. Reliance is also placed on a decision in the matter of Sunderdev v. Yogesh, rendered in Cr. Rev. No. 1041/2007, decided on 18.3 .2008, wherein after placing reliance on number of authorities, this Court has held that mistake of the cheque number was not merely in the complaint alone, the same mistake has occurred in the notices sent by the respondent as well as observed by the trial Court in the affidavit and even in the cross-examination of complainant and observed that a complete new case cannot be built and appl