IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 Crl.MC.No. 4699 of 2010() ------------------------------------ CRRP.89/2008 of I ADDL. SESSIONS COURT, PALAKKAD C.M.P.NO.474/2008 IN ST.5226/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... PETITIONER(S): REVISION PETITIONER/COMPLAINANT: -------------------------------------------------------------------------------- PADMAKUMAR, S/O.RAMACHANDRAN, X/40, THEKKEGRAMAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.P.M.RAFIQ SRI.V.C.SARATH RESPONDENT(S): STATE & ACCUSED: ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.KRISHNAPRASAD, S/O.KANDAMUTHAN, PULLUPARA, KUZHALMANNAM, PALAKKAD DISTRICT (WANES OF INDIA, SHOP NO.6, SURY COMPLEX, PALAKKAD.) 678 001 R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4699 OF 2010 --------------------------------------------- Dated 17th December, 2010 O R D E R Petitioner lodged a complaint before Judicial First Class Magistrate, Chittur alleging that second respondent committed offence under Section 420 of Indian Penal Code and Section 138 of Negotiable Instruments Act. Learned Magistrate has taken cognizance in S.T.5226/1998 for the offence under Section 417 of Indian Penal Code alone, based on the evidence recorded. By Annexure-B judgment, second respondent was acquitted under Section 255(1) of Code of Criminal Procedure on 9/12/1998. Petitioner challenged the order of acquittal by filing Crl.A.422/1999 before this Court. By Crmc 4699/10 2 judgment dated 11/7/2007 the order of acquittal was set aside and the case was sent back to the trial court for fresh consideration, as this Court found that matter requires reconsideration. This Court also directed the Magistrate to afford opportunity to both the second respondent and the petitioner to adduce further evidence, if they so desires and to dispose the case untramelled by any observation in the earlier judgment. Petitioner subsequent to the order of remand filed Annexure-D petition, C.M.P.474/2008, to alter the charge, for the offence under Section 138 of Negotiable Instruments Act contending that as per subsequent decision of this Court, even if, the cheque was issued on an account which was closed, an offence under Section 138 of Negotiable Instruments Act is attracted. By Annexure-E order, learned Magistrate dismissed Crmc 4699/10 3 the petition. Petitioner challenged that order before Sessions Court, Palakkad in Crl.R.P.89/2008. Learned Additional Sessions Judge by Annexure-F order dated 13/8/2010, dismissed the revision holding that as the learned Magistrate has not taken cognizance of the offence under Section 138 of Negotiable Instruments Act, it is to be treated as an order of acquittal/discharge of that offence against the accused and therefore, the charge cannot be altered as sought for. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexures-E and F orders and alter the charge for the offence under Section 138 of Negotiable Instruments Act. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel appearing for the petitioner is that learned Crmc 4699/10 4 Magistrate originally did not take cognizance of the offence under Section 138 of Negotiable Instruments Act. Decisions of this Court, as then stood was that if a cheque is drawn is an account, which was already closed, an offence under Section 138 of Negotiable Instruments Act is not attracted. Later Division Bench of this Court held that even in such an event, an offence under Section 138 of Negotiable Instruments Act is attracted. Argument is that in such circumstances, learned Magistrate should have altered the charge for the offence under Section 138. Relying on the decision of this Court in Prakasan v. State of Kerala (2008 (1) Kerala ILR 17) it was argued that even though, learned Magistrate has not taken cognizance of the offence under Section 138 of Negotiable Instruments Act, no reason has been shown why the said offence was not taken Crmc 4699/10 5 cognizance and therefore, the order, not taking cognizance would only be a nullity and if that be so, courts below were not justified in not altering the charge for the offence under Section 138 of Negotiable Instruments Act for the reason that failure to take cognizance for the offence under Section 138 of Negotiable Instruments Act would amount to an order of discharge or acquittal. 4. Learned Magistrate had originally taken cognizance for the offence under Section 417 of Indian Penal Code alone, though complaint was filed alleging that second respondent committed an offence under Section 420 of Indian Penal Code and Section 138 of Negotiable Instruments Act. That was in 1998. Petitioner did not challenge the order not taking cognizance for the offence under Section 138 of Negotiable Instruments Act. He Crmc 4699/10 6 participated in the trial in S.T.5226/1998. The second respondent was acquitted on 9/12/1998. Petitioner challenged the order of acquittal before this Court. Before this Court, the petitioner had no case that learned Magistrate should have taken cognizance for the offence under Section 138 of Negotiable Instruments Act or that an offence under Section 138 is attracted. Even when criminal appeal was heard, petitioner did not sought an opportunity to alter the charge or raise any contention that on the facts, an offence under Section 138 of Negotiable Instruments Act was attracted. The decision of the Division Bench of this Court that even if the cheque was issued in an account which was closed would attract an offence under Section 138 of Negotiable Instruments Act overruling the earlier decision was much earlier to the filing of the appeal. Crmc 4699/10 7 That decision was available even when the appeal was heard and disposed by this Court on 11/7/2007. The remand was only for the purpose of adducing further evidence and disposal. The Magistrate was bound by the order of remand. Annexure-D application to alter the charge was filed before the Magistrate only on 17/1/2008, about ten years after taking cognizance for the offence under Section 417 of Indian Penal Code. Evidently, attempt of the petitioner is to take cognizance of the offence under Section 138 of Negotiable Instruments Act in 2008, on a complaint filed in 1998. 5. Under Section 468 of Code of Criminal Procedure, Court cannot take cognizance of the offence after the period of limitation provided thereunder. Under Section 468(2)(c), the period of limitation is three years, if the offence is punishable with Crmc 4699/10 8 imprisonment for a term not exceeding one year but not exceeding three years. Hence cognizance could not have been taken after three years, even if the period of limitation as provided in Section 138 of Negotiable Instruments Act is not applicable. In such circumstances, I find no reason to interfere with the order passed by the learned Magistrate, as confirmed by the learned Sessions Judge, refusing to alter the charge for the offence under Section 138 of Negotiable Instruments Act. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.