DNYANDEO VASANT VISPUTEversusMOTIRAM GANGADHAR KARHALE AND ANOTHER

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        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

            957 CRIMINAL WRIT PETITION NO. 367 OF 2024

Dnyandeo Vasant Vispute                                 ….Petitioner

VERSUS

Motiram Gangadhar Karhale & another                     …..Respondents

Ms. R. S. Kulkarni, Advocate for the Petitioner
Ms. P. J. Bharad, APP for the State.
Ms. S. G. Mapari, Advocate for Respondent No. 1.

                                   CORAM : R. M. JOSHI, J.
                                   DATE : 10th SEPTEMBER, 2026.
PER COURT :


1.     This petition takes exception to the order passed by the Trial

Court in SCC No. 7119/2018 whereby application Exhibit 14 came to

be allowed by passing order dated 12.10.2023. Exception was raised

to   this   order   before   the   Sessions    Court     by    filing    revision,

unsuccessfully. Hence, this petition.



2.     The facts as they appear from the record indicate that

Respondent     filed   complaint    under     Section    138    of      Negotiable

Instruments Act bearing SCC No. 7119/2018. This complaint came

to be filed on 29.11.2018 whereas verification was recorded on

25.02.2019. After issuance of process, plea of the accused/petitioner
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herein came to be recorded and evidence of complainant was over by

03.03.2022. It is thereafter, statement of accused under Section 313

of Code of Criminal Procedure was recorded. When the matter was

postponed for arguments, an order came to be passed below Exhibit

14 on 12.10.2023 though the application was filed on record on

08.01.2020.



3.    Learned Counsel for Petitioner submits that even if the power

of the Trial Court to permit amendment in appropriate case is

accepted, it is required to be seen as to whether any prejudice is

caused to the accused and in case such prejudice is caused,

amendment is not permissible.     To support her submissions, she

drew attention of the Court to the cross-examination of the

complainant conducted on behalf of the accused. According to her, a

specific question was posed to the complainant in the cross-

examination that the cheque in question is not issued individually in

his name. It is her submission that having regard to the said specific

plea raised by accused, it was not open for the Trial Court to permit

the amendment which has caused prejudice to the accused.           To

support her submission, she placed reliance on judgments of Hon’ble

Supreme Court in case of Milind Shripad Chandurkar vs. Kalim M.
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Khan and another, 2011 AIR SCW 1733 and Munish Kumar Gupta

vs. M/s Mittal Trading Company         (arising out of SLP (Crl.) No.

3040/2023).



4.    Learned Counsel for Respondent supported the impugned

order. It is her contention that no prejudice is likely to be caused to

the accused as the amendment only pertains to the fact that the

complainant is the proprietor of Shraddha Apperal, Jalgaon.



5.    There is no dispute about the preposition sought to be

canvassed before this Court that in appropriate case and at

appropriate stage of the proceeding, amendment to the complaint

would be permissible. What is required to be seen is as to whether

any prejudice has been caused or is likely to cause to the accused by

such amendment.



6.    Cross-examination of the complainant indicates that the

accused does not dispute the factum of issuance of cheque to the

Petitioner. However, in the cross-examination, he is suggested that

individually the complainant is not the payee.     In the light of this

fact, if amendment sought is considered, the same is with regard to
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the complainant being proprietor of Shraddha Apperal, Jalgaon.

Needless to say that there is no independent legal entity insofar as

proprietory firm is concerned than proprietor himself, unlke in case

of partnership firm or a company. Thus, it was always open for the

complainant to substantiate that accused is the proprietor of the said

firm.    Once it is allowed to prove so, there is no question of any

prejudice     being   caused   to   the   accused   by   permitting   such

amendment even at the stage of arguments.           Needless to say that

even at this stage, the burden would be on the complainant to prove

that he is the sole proprietor of the firm. The accused in that case

would get a chance to rebut the same.



7.       As far as judgment of Hon’ble Supreme Court in case of Milind

Chandurkar (supra) is concerned, even the Hon’ble Supreme Court in

paragraph No. 23 of the judgment has observed that it would be open

for the party to prove/substantiate that he is the sole proprietor of

the firm.    Insofar as judgment in case of Munish Gupta (supra) is

concerned, it is on different point and in altogether different set of

facts.
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8.    Having regard to above discussion, and considering the facts of

the case, this Court finds no perversity in the orders impugned. In

the result, petition stands dismissed.



                                               ( R. M. JOSHI, J.)

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