1 Criminal Writ Petition No.208/2008 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.208 OF 2008 Sangita w/o Rajendra Mule, Age 30 years, Occ. Business, R/o Tilaknagar, Sillod, Tq. Sillod, District Aurangabad. ... PETITIONER VERSUS Mandakini w/o Dattatraya Sable, Age 40 years, Occ. Service, R/o Ganori, Tq. Phulambri, District Aurangabad ... RESPONDENT ..... Shri V.P. Latange, Advocate for petitioner Shri D.P. Palodkar, Advocate for respondent ..... CORAM : K.U. CHANDIWAL, J. DATED : 15th June, 2011. ORAL JUDGMENT : 1. The prosecution in terms of Section 138 of the Negotiable Instruments Act, when reached to the stage of evidence, the petitioner as complainant, realised the mistake in the surname of the respondent/accused and it was said that the name of the respondent is Mandakini d/o Dattatraya Sambre, but it was wrongly mentioned in the complaint as Mandakini w/o Dattatraya Sable. Application below Exh. 50 in S.C.C. No. 1673/2005 for carrying above referred correction in the name 2 Criminal Writ Petition No.208/2008 was given. The same was disputed. The learned Judge rejected the application and hence, present writ, in which Rule was issued on 9th September 2008. 2. Mr. Palodkar, learned counsel for the accused/ respondent pointed that the very notice under section 138 of the Negotiable Instruments Act, 1881 was issued in the name of Mandakini w/o Dattatraya Sable, in the name of another person and consequently, the complaint itself would not be maintainable. 3. This objection raised by the learned counsel is not open to be coined in the present proceedings as it is challenging orders in Exh. 50. However, it is left open to be addressed before the learned Judge at the time of final hearing, who will independently decide its fate on the legal scenario. 4. The correction in the surname as has been sought from particularly “Sable” to “Sambre”, is in its nature innocuous, will not change the table as it is correction in the complaint. The mistake in notice has its ramifications as stated hereinabove. 5. Different stages of the matter are quoted by Mr. Palodkar, as the notice was sent on 28th May 2005, evidence of 3 Criminal Writ Petition No.208/2008 petitioner was closed, thereafter statement under Section 313 of the Criminal Procedure Code of the respondent was recorded on 7th September 2006, she led evidence on 9th October 2006 and she was cross-examined by the petitioner on 11th December 2006. Thereafter the application dated 17th February 2007 (impugned) was moved. Even if these dates are important to show the conduct, however, that will not be showing ill motive on the part of the complainant. Even in the reply that was filed by the respondent, she has stated that the complaint is in the wrong name. Her contention is that a blank signed cheque was lying on the table, which has been stolen and has been used. 6. Taking these aspects into consideration, the order under challenge is set aside. The complainant is permitted to correct the name from Mandakini w/o Dattatraya Sable to Mandakini d/o Dattatraya Sambre. Other aspects in the matter are left open. Criminal Writ Petition is allowed accordingly. Rule made absolute. (K.U. CHANDIWAL, J. )