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Sree Gokulam Chit And Finance Co. (pvt). Ltd v. Manish Tamer And Another

Sree Gokulam Chit And Finance Co. (pvt). Ltd v. Manish Tamer And Another

(High Court Of Kerala)

Crl. M.C. No.1712 of 2020 (D) | 03-03-2020

1. The petitioner is the complainant in the case C.C.No.1686/2011 on the file of the Court of the Judicial First Class Magistrate-I, Thrissur.

2. The aforesaid case is instituted upon the complaint filed by the petitioner against the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ' the').

3. The first respondent/accused pleaded not guilty and claimed to be tried. Thereupon, the petitioner adduced evidence in the case. When the Manager of the bank was examined by the petitioner, it was revealed that the cheque involved in the case was drawn not on an account maintained by the first respondent/accused in the bank but it was drawn on an account maintained by a partnership firm in which the accused is a partner. The first respondent had also raised a plea that he had never executed the cheque.

4. In the aforesaid circumstances, the petitioner filed an application as Crl.M.P.No.8214/2019 before the trial court to alter the charge against the first respondent/accused for the offences punishable under Sections 420 and 468 I.P.C.

5. The first respondent/accused filed objection to the aforesaid application contending that he was not the author of the signature and the other entries in the cheque.

6. As per Annexure-A3 order, the learned Magistrate dismissed the application filed by the petitioner for alteration of the charge.

7. The aforesaid order is challenged by the petitioner in this application filed under Section 482 Cr.P.C.

8. Heard learned counsel for the petitioner.

9. The application for alteration of charge was filed by the petitioner under Section 216 Cr.P.C. Section 216(1) Cr.P.C provides that, any court may alter or add to any charge at any time before judgment is pronounced.

10. A case under Section 138 of theis a summons case in which there is no necessity to frame a formal charge. In the instant case, the petitioner has no case that the trial court had framed any charge against the first respondent/accused for an offence punishable under Section 138 of the. In such a situation, when no charge framed by the court was in existence, there could be no alteration or addition to the charge.

11. Even assuming that it is not necessary to have the existence of a formal charge already framed by the court for the application of the provision contained in Section 216 Cr.P.C, alteration of or addition to charge can be made only when there are materials against the accused in the complaint or the evidence justifying such a course. Direction to alter the charge so as to include an offence for which the accused was not originally charged could only be done if there are materials before the trial court, either in the complaint or in the evidence, to justify such action (See Harihar Chahravarty v. State of W.B : AIR 1954 SC 266 [LQ/SC/1953/94] ). The test is, it must be founded on the material available on record.

12. In the instant case, the trial court has found that materials to constitute the offences of cheating and forgery are absent in the complaint or in evidence. I find no reason to take a different view.

13. Moreover, alteration of a case under Section 138 of theinto a case under Sections 420 and 468 I.P.C at the fag end of the trial would certainly cause prejudice to the accused. It is obligatory on the part of the Court to see that no prejudice is caused to the accused and he is allowed to have a fair trial.

14. In the aforesaid circumstances, I find no illegality or impropriety in Annexure-A3 order passed by the learned Magistrate.

Consequently, the petition is dismissed.

Advocate List

  • Sri. Mahesh V Ramakrishnan, Advocate, for the Appellant; Sri Ajith Murali-PP, for the Respondent

Bench
  • HON'BLE JUSTICE R. Narayana Pisharadi,
Eq Citations
  • LQ/KerHC/2020/724
Head Note

Criminal Procedure Code, 1973 — Ss.216(1) and 482 — Alteration of charge — Impermissibility of, at fag end of trial — A case under S.138 NI Act is a summons case in which there is no necessity to frame a formal charge — In such a situation, when no charge framed by court was in existence, there could be no alteration or addition to charge — Direction to alter charge so as to include an offence for which accused was not originally charged could only be done if there are materials before trial court, either in complaint or in evidence, to justify such action — Alteration of a case under S.138 NI Act into a case under Ss.420 and 468 IPC at the fag end of trial would certainly cause prejudice to accused — Negotiable Instruments Act, 1881, S.138 (Paras 10 to 13)