HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5302 of 2​008 ORDER:- The petitioner herein is the accused in C.C.No.170 of 2006 on the file of the Court of the Additional Judicial First Class Magistrate, Vizianagaram. The said criminal case pertains to an offence under Sections 138 and 142 of the Negotiable Instruments Act, 1881. 2. It is seen that when the case was in the course of trial, the complainant filed a petition requesting the learned Magistrate to add another charge falling under Section 423 IPC against the accused. That petition is Crl.M.P.No.2995 of 2008. After hearing both sides, the learned Magistrate allowed that petition by his order dated 31.07.2008 and ordered that an additional charge under Section 423 IPC should be framed against the accused i.e. the petitioner herein. 3. The circumstances which led to the filing of the above petition by the complainant were that in the course of trial the evidence allegedly disclosed that the petitioner herein gave the cheque in question to be drawn on a bank in which he had no account. On the disclosure of this fact in the evidence of the bank official who gave evidence as P.W2, the complainant filed the aforesaid petition seeking addition of the charge under Section 423 IPC. The complainant’s plea is that the very fact of the accused giving a cheque on a bank in which he had no account would amount to committing an offence under Section 423 IPC. The learned Magistrate it is seen from the order has accepted this case of the complainant and ordered addition of the charge under Section 423 IPC holding that its proof or otherwise can be gone into after the conclusion of the trial. 4. In this petition Sri Balaji the learned counsel for the appearing has pointed out that the offence under Section 423 IPC altogether covers a different situation and not a situation like this and he therefore requested for quashing the order of the learned Magistrate in question. 5. On the other hand Sri Ravi Cheemalapati argued that the order of the learned Magistrate is well-founded and does not call for interference and that the act committed by the accused/ petitioner herein would squarely fall under Section 423 IPC. 6. Both the learned counsel invited my attention to the language or wording in Section 423 IPC in support of their respective contentions. A perusal of Section 423 IPC would show that the said provision does not cover a situation like this for this reason. It may be noted that it deals with making false statement in a deed or instrument relating to the consideration mentioned in it or of the person or persons for whose benefit it is executed. The learned counsel for the complainant says that the word “instrument” is used in Section 423 IPC and since a cheque would fall within the meaning of the word “instrument” Section 423 IPC applies. It is difficult to accept this contention. In the present case the petitioner herein i.e. the accused, according to the complainant, gave the cheque in question on a bank in which he had no account but this is disputed by the accused and on the other hand he says that he did not issue that cheque at all. This is a matter to be decided by the Court before which the criminal case is pending. 7. It should then be noted that even assuming for a moment that cheque is an instrument no false statement is made in it regarding consideration or for the beneficiary for whom the said cheque is said to have been issued. The allegation simply is that the cheque in question was issued on a bank in which the accused has no account. The language of Section 423 IPC shows that it does not cover a case where a cheque is issued on a bank in which the drawer had no account. The learned counsel for the complainant/second respondent made a vehement attempt to show that the language of that Section covers a situation like this. It is difficult to accept this contention for the aforesaid reason and the same is therefore rejected. 8. In the above circumstances I am of the opinion that the order of the learned Magistrate permitting addition of charge under Section 423 IPC cannot be sustained. Accordingly this petition is allowed and the said order is quashed. This order shall not however be understood to preclude the complainant from making a request to the Magistrate for addition of other offences which the evidence may disclose subject of-course to the final decision of the Magistrate on the said aspect after trial. ______________________ N. RAVI SHANKAR, J 8th April 2011 CVRK