1 Cr. W.P. 1040.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1040 OF 2009 Mahesh Govind Wani ... Petitioner V E R S U S Agresen Urban Co-op. Credit Society Ltd. ... Respondent ... Mr. B.S. Deshmukh, Advocate for Petitioner. ... CORAM : P.R. BORKAR, J. DATED : 11TH DECEMBER, 2009 PER COURT 1] Heard Shri B.S. Deshmukh for the petitioner. This is a Writ Petition challenging the order passed on Application exhibit 68 in S.C.C. no. 2096 of 2004 by Judicial Magistrate First Class-IInd Court, Jalgaon whereby, he allowed the application tendering the cost of Rs.50/- for the amendment which was already carried out. 2] The present petitioner was accused in the Criminal Complaint filed by the respondent/Co- operative Society for offence under section 138 of the Negotiable Instruments Act. It was S.C.C. 2096 of 2004. At exhibit 51, application was given on 29.9.2006 stating that in the complaint lodged, in paragraph no.2 mistakenly the date of notice was typed as 3.4.2004 instead of 23.4.2004. 2 Cr. W.P. 1040.2009 It was obviously a mistake because the date of cheque was 7.4.2004 and dis-honour was on 7.4.2004. 3] There is also evidence to show that the notice was posted on 23.4.2004 so the date of notice mentioned in the complaint may be allowed to be amended. After hearing the parties, the Court allowed the said application exhibit 51 on 27.6.2008 and it is stated that the application was allowed subject to costs of Rs.50/- to be paid to the accused. However, the amendment was carried out but the costs were not paid and at the stage of final arguments when the matter was posted for finally arguing the application, exhibit 68 was given stating that as per order on application exhibit 51 the costs had remained to be paid and the complainant was tendering the amount and the same may be allowed to be deposited. The present petitioner who was accused filed detail say. He referred to Order 6 Rule 18 of the Code of Civil Procedure and stated that the amendment ought to be carried out within 14 days however, the learned Magistrate by giving detail reasons came to a conclusion that though the matter was posted for final hearing and though without obeying the order of the Court to pay the costs first, the amendment was carried out, Considering that it was an irregularity and considering the effect of such order on both sides the application was allowed. Thus the error in 3 Cr. W.P. 1040.2009 the date of notice would amount to typing error and it can-not be said to change the date on the notice or the postal evidence about date of issuance or service of notice. Moreover original notice is in possession of the present petitioner and the date thereon can-not be changed. The petitioner can very well prove the date on which he received the notice. 4] Considering these submissions, in my opinion no error is committed by the learned Magistrate. The Petition is therefore dismissed. It is made clear that accused is at liberty to lead evidence if he has not already lead evidence regarding the date of notice by producing the original notice. The Registry shall inform this order to the trial Court. The parties and the trial Court may act on an authenticated copy of this order. Authenticated copy of the order be supplied to the parties. Sd/- (P.R. BORKAR, J.) arp