1 CRWP 491/10 AND 492/10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.491 OF 2010 J.N.Agency, by its owner and Proprietor Virendra Sitaldas Wadhwani, Age: 57 years, Occu: Business, r/o. Station Road, Amalner, Tal.Amalner, Dist. Jalgaon. ...PETITIONER VERSUS Kailash Shamrao Patil, Age: 41 years, Occu: Agril., At Post Pimpale, Tal.Amalner, Dist. Jalgaon. ...RESPONDENT ... Mr. R.R.Mantri, Adv., for the petitioner. Mr. S.R.Patil, Adv., for respondent (sole). ... WITH CRIMINAL WRIT PETITION NO.492 of 2010 J.N.Agency by its owner and proprietor Virendra Sitaldas Wadhwani, Age: 57 years, Occu: Business, r/o Station Road, Amalner, Dist. Jalgaon. ...PETITIONER VERSUS Dhanraj s/o Dagdu Pardhi, Age: 41 years, Occu: Agril., r/o Pimple (Bk.) Tal.Amalner, Dist. Jalgaon. ...RESPONDENT ... 2 CRWP 491/10 AND 492/10 Mr.R.R.Mantri, Adv., for the applicant. Mr. S.R.Patil, Adv., for respondent ... CORAM: K.U.CHANDIWAL, J. DATE:7/2/2011 *** PER COURT : 1. Heard. Rule made returnable and heard forthwith. By consent, both the writ petitions taken together as identical point is involved. 2. In proceedings under Section 138 of Negotiable Instruments Act, the defense of the accused/respondent is the complainant indulged in money lending and he is not owner and proprietor of J.N.Agency. 3. The matter reached finality, at the stage of arguments, the complainant desired to produce documents to establish, indeed, he owns the firm J.N.Agency and in operation. Application to produce relevant documents moved to the learned Judge came to be rejected, the said order is questioned in the petitions. 4. Though several points are raised by both the learned Counsel, I find that applicability of the judgment in the matter of Amit Kumar Jaiprakash Singh Vs. Mahesh Mahadev Dabholkar and 3 CRWP 491/10 AND 492/10 others ( 2008 ALL MR (Cri) 1919) is not correctly done. Said case was on an altogether different footing as, at the stage of arguments, original documents were tried to be brought on record which the complainant did not bother to do. In this case, it is not that the complainant desires to rectify the record. The complainant desires to produce documents which are already in existence; its production cannot be said to be a new creation. 5. The law is quite settled. Any wedge or error committed by the Counsel should not go to the peril of the litigant. If there is no prejudice obviously caused, the mistake can be rectified, cured at any stage of the proceeding, even if it is at the argument stage. (Rajendra Prasad V. Narcotic Cell (AIR 1999 SC 2292) and Rammy Vs. State of M.P. (1999) 8 SCC 649). The Apex Court in Rajendra Prasad's case observed in paragraph No.7, as under: "7. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a 4 CRWP 491/10 AND 492/10 relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 6. In the result, the order under challenge calls for interference. It is accordingly set aside. However, since the respondent/accused has been dragged even to this Court, the production of documents would be confined to annexures to the said application Exh.41 and Exh.27 respectively. In each of the matter, the complainant will pay and deposit an amount of Rs. 5,000/- ( Rs. five thousand), before the learned Judicial Magistrate, First Class, Amalner, within 15 days from today. Upon such deposit the learned Judge shall allow production of the documents and proceed thereafter as per Rules. Both the petitions allowed. Rule made absolute. (K.U.CHANDIWAL) JUDGE agp/491-492-10crwp