mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2014 OF 2008 Zulelal Nagari Sahakari Patsanstha Ltd. and another Petitioners versus Prabhudas Gangaram Ranglani and anr. Respondents Sagar Kasar for petitioners.

Tushar Sonawane for respondent no.1.

Miss A.T.Javeri, APP for State.

CORAM : A.S.OKA, J.

DATE : 28th April 2009 PC :

1. The submissions of learned counsel for the parties were heard on the earlier date. The petitioner is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881") against the first respondent. In the said complaint after the evidence was adduced by the petitioner an application was made at Exhibit-41 seeking permission to amend the complaint and affidavit in lieu of examination-in-chief. It was contended that the correct cheque number in respect of which the complaint was filed was 016935 but due to inadvertent error, in the complaint, the cheque number was mentioned as 006985. It was contended that as the inadvertent error was committed while incorporating the cheque number, the same mistake was carried forward in the affidavit in lieu of examination-in-chief. Therefore, a prayer was made by the petitioner for permitting the amendment of both, the complaint as well as the affidavit in lieu of examination-in-chief. By order dated 13th June 2007, the said application was partly allowed by the learned Magistrate. The learned Magistrate permitted the petitioner to amend the complaint. However, the learned Magistrate held that there is no provision of law under which an affidavit in lieu of examination-in-chief could be permitted to be amended. The petitioner has challenged that part of the impugned order by which the permission to carry out the amendment to the affidavit in lieu of examination-in-chief was denied. It must be noted here that the first respondent-accused had challenged the impugned order by filing Criminal Writ Petition No.240 of 2008. By a detailed judgement and order dated 17th November 2008, the Court rejected the said petition upholding the impugned order to the extent to which the amendment of the complaint was allowed.

2. Learned counsel for the petitioner submitted that as an error in the complaint was permitted to be amended, the learned Trial Judge ought to have permitted the amendment to be carried out in the affidavit. He has placed reliance on the decision of the Apex Court in the case of Associated Journals Ltd. Vs. Mysore Paper Mills Ltd. ([2006]6-SCC-197). He also placed reliance on a decision of this Court in the case of Pushp Holdings Ltd. Vs. State of Maharashtra & anr. (2008[6]-All M.R.-901). He submitted that in view of the said decisions, the amendments to the affidavit in lieu of examination-in-chief ought to have been permitted.

3. Learned counsel for the first respondent submitted that no law permits amendment to be carried out to an affidavit in lieu of examination-in-chief on the basis of which cross examination of the witness has already been carried out. He submitted that during the course of the cross examination an opportunity was available to the petitioner to make an amendment by stating that there is an inadvertant mistake in the affidavit. But the said opportunity was not availed of. He submitted that no fault can be found with the impugned order as there is no power vested in the learned Magistrate to allow the amendment to the affidavit.

4. I have carefully considered the submissions. The learned counsel appearing for the petitioner has placed reliance on the decision of the Apex Court in the case of Associated Journals Ltd. (supra). The issue before the Apex Court was whether permission could be granted to amend the affidavit for the purposes of correcting an error in the verification clause of the affidavit. Even in the case of Pushp Holdings Limited (supra), this Court was considering the prayer made for carrying out th