IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Crl.Rev.Pet.No. 1373 of 2010() ------------------------------ AGAINST THE ORDER DATED 09/03/2010 IN CMP 162/2010 IN STC .780/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONERS: RESPONDENT --------------------------------------------------- YOUSUF, S/O. ABDULLA, AGED 37 YEARS, PANDANTAVIDA VEEDU,PANOOR.P.O. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: PETITIONER AND STATE ------------------------------------------------------------ 1. MUHAMMED SHEREEF.P.,S/O.NABEESU, AGED 30 YEARS, PARAMBATHA HOUSE, P.O.PANOOR, THALASSERY TALUK, KANNUR DISTRICT, REP. BY P.A. HOLDER NABEESU, D/O. KUNHIMOOSA, AGED 52 YEARS, PARAMBATH, P.O.PANOOR. THALASSERY TALUK, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV M/S K.S.MADHUSOODANAN T.V.JAYAKUMAR NAMBOODIRI THUSHAR NIRMAL SARATHY .M.M.VINOD KUMAR SMT.K.M.RAMYA & SRI.P.K.RAKESH KUMAR R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/11/2010, ALONG WITH CRMC NO. 2877 OF 2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. = = = = = = = = = = = = = = = = = = = CRL.R.P.NO. 1373 OF 2010 & CRL.M.C.NO.2877 OF 2010 == = = = = = = = = = = = = = = = = = Dated 8th Day of November, 2010 ORDER As the parties in the above two proceedings are one and the same, and both the cases are arising out of one and the same order, the above two cases are heard together and being disposed of by this common order. 2. The revision petitioner in Crl.R.P.No.1373/2010 is the accused in a private complaint preferred by the petitioner in Crl.M.C.No.2877/2010. S.T.C.No.780/2008 was instituted in the Court of Addl.Chief Judicial Magistrate, Thalassery, based upon the private complaint preferred by the petitioner in Crl.M.C.No.2877/10 for the offence punishable under section 138 of the Negotiable Instruments Act. Altogether there are two accused in the above case and the 2nd accused therein was absconding and the first accused preferred Crl.R.P. No.1373/2010 before this court. Initially, the complainant approached the trial court alleging the offences punishable under sections 420 and 468 read with Sec.34 of IPC and also the offence under section 138 of the N.I.Act. The learned magistrate took cognizance only for the offence under CRRP 1373/10 & CRMC 2877/10 :-2-: section 138 of the N.I.Act and declined to take cognizance under section 420 of IPC. At the time of taking cognizance, nothing was stated about section 468 of IPC. After taking cognizance, trial was proceeded further and after the evidence, the complainant/petitioner in M.C.No.2877/10 preferred a petition, i.e. CMP No.162/10 for altering the charge to sections 420 as well as 468 of IPC. The learned Magistrate by order dated 9.3.2010 in the above petition allowed the petition only in part adding charge under section 468 read with Sec.34 of IPC, but the request to add charge under section 420 IPC was declined and the reason assigned by the learned Magistrate for not altering the charge under section 420 IPC is that initially the learned Magistrate refused to take cognizance under section 420 IPC and if at this stage cognizance is taken , it will amount to review of the order dated 3.10.2008. Aggrieved by the order of the learned Magistrate in not adding charge under section 420 IPC also, the complainant approached this Court by filing the above Crl.M.C, whereas challenging the above order of the learned Magistrate for adding charge under section 468 IPC., the CRRP 1373/10 & CRMC 2877/10 :-3-: revision petitioner preferred Crl.R.P.No.1373/2010. Earlier, the learned Magistrate refused to take cognizance under section 420 of IPC. 3. I have heard Sri K.S.Madhusoodanan, the learned Counsel appearing for the petitioner in Crl.M.C/complainant and Sri Sunny Mathew, the learned counsel appearing for the revision petitioner in the Crl.R.P and also heard the learned Public Prosecutor. 4. Sri Madusoodanan, counsel appearing for the petitioner in the Crl.M.C vehemently submitted that by virtue of Section 216 of Cr.P.C., the court is empowered to alter the charge at any stage before the judgment and as such the reason assigned by the learned Magistrate for not adding the charge under section 420 IPC is unsustainable. On the other hand, the counsel appearing for the revision petitioner/accused supporting the stand of the learned Magistrate in not taking cognizance for the offence under section 420 submitted that Section 468 cannot be added sicne the learned Magistrate had refused to take cognizance for the offence under section 420 of IPC. CRRP 1373/10 & CRMC 2877/10 :-4-: 5. Sri Tek Chand, the learned Public Prosecutor has pointed out that the proceedings adopted by the learned Magistrate cannot be accepted since if a warrant case is disclosed, the Magistrate has to follow the procedure contemplated by Chapter XIX of Cr.P.C otherwise than on police report but the learned Magistrate has not adopted such a course. 6. I have carefully considered the contentions advanced by the learned counsel for the petitioners and also the submission made by the learned Public Prosecutor. 7. In the present case, the allegation in the complaint is that the complainant was offered employment abroad in the establishment of Accused No.1 on payment of Rs.1,50,000/- for Visa and on the basis of such employment while the complainant was working, he met with an accident and connected with the dispute arose out of the accident, accused No.1 agreed to return Rs.1.5 loakhs towards the visa and Rs.2.5 lakhs towards the workmen's compensation and salary arrears after deducting advance received by the complainant and thus A1 executed a cheque CRRP 1373/10 & CRMC 2877/10 :-5-: bearing No.0192933 of state Bank of Travancore, Panoor branch bearing date 30.4.2008 for a total sum of Rs.4,00,000/- making the complainant believe that he had sufficient amount in the account. The further allegation of the complainant is that when the cheque was presented for encashment, it was dishonoured on the ground that signature differs based upon which statutory notices were issued and in spite of that notice, no amount was paid, so the complainant approached the court by filing a formal complaint alleging offences under section 138 of the Negotiable Instruments Act and for the offences under section 420 and 468 read with Section 34 of IPC. As the 2nd accused was absconding, the case against him was split up and proceeded against the first accused. Though in the complaint, the court was requested to take cognizance for the offence under sections 138, 420 and 468 IPC by order dated 3.10.2008, the learned Magistrate took cognizance only for the offences under Section 138 of the N.I.Act and declined to take cognizance under section 420. It is after the change of circumstances, CMP No.162/10 under section 216 of CRRP 1373/10 & CRMC 2877/10 :-6-: Cr.P.C for alteration of the charge was filed. On a reading of Section 216 Cr.P.C., it is crystal clear that any court may alter or add any charge at any time before the judgment pronounced and on such alteration or addition of the charge, the procedure contemplated has to be complied with. But in the present case, the learned Magistrate came into a conclusion that as he had already declined to take cognizance for the offence under section 420 IPC, and if cognizance is taken at this stage for the same offence, it would amount to review of the order dated 3.10.2008. As rightly pointed out by the counsel for the complainant, the above stand of the learned Magistrate is not sustainable in view of Section 216 Cr.P.C. Particularly in the light of the decision of the Apex Court in Sohan Lal v. State of Rajasthan (AIR 1990 SC 2158). In the above decision the Apex Court has held that an alteration of a charge means changing or variation of an existing charge or making of a different charge, and further held that under this section addition to and alteration of a charge or charges implies one or more existing charge or charges. On the basis of the facts CRRP 1373/10 & CRMC 2877/10 :-7-: and circumstances involved in the above case, the Apex Court has further held that in the case of persons who are discharged cannot be charged again by invoking Section 216 and as such, an application under section 216 Cr.P.C. Is not maintainable with respect to the accused person those who are already discharged. In the light of the above decision and in view of Section 216 of Cr.P.C., the finding of the learned Magistrate and refusal to add charge under section 420 IPC is not maintainable and the same is liable to be revised. 8. As rightly pointed out by the learned Public Prosecutor, if in case the learned Magistrate is prepared to add charge under section 468 of IPC, the learned Magistrate ought to have adopted procedure contemplated by chapter XIX of of Cr.P.C particularly with respect to the trial of warrant cases instituted otherwise than on police report. Therefore, the order impugned to the extent the learned Magistrate is not following the procedure contemplated for the trial of warrant cases instituted otherwise than on police report is liable to be set aside. CRRP 1373/10 & CRMC 2877/10 :-8-: In the result, the Crl.R.P as well as the Crl.M.C.are disposed of setting aside the order dated 9.3.10 in CMP 162/2008 in ST 780/2008 and the of Addl.Chief Judicial Magistrate is directed to proceed with the complaint for the offence punishable under section 420 and 468 of IPC read with Section 34 and 138 of NI Act as contemplated as per the provisions contained in Chapter XIX of Cr.P.C particularly for the trial of warrant cases instituted otherwise than on police report. V.K.MOHANAN, JUDGE. Kvm/-