IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Crl.MC.No. 841 of 2008 ------------------------ CC.685/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER: COMPLAINANT ----------------------- JOSE M.C.,S/O. PAVUNNI MAPANI HOUSE, DON BOSCO STREET KURIACHIRA P.O.,THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL SRI.BABU S. NAIR RESPONDENTS: ------------- 1. JOY DANIAL, S/O.DANIAL, KANNAMPUZHA HOUSE JOY LIGHTS, THRISSUR DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTORMR. M.S. BREEZE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No. 841 of 2008 = = = = = = = = = = = = = = Dated this the 28th day of February, 2008 ORDER Petitioner,who is the de facto complainant in C.C.No.685/2004 on the file of the J.F.C.M.I, Thrissur for an offence punishable under Section 420 I.P.C., challenges Annexure-C order dated 13-4-2007 passed by the said Magistrate refusing the prayer of the Petitioner to alter the charge under Section 420 I.P.C. into one punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. C.C.No.685/2004 arose out of a private complaint filed by the Petitioner under Section 190(1)(a) read with Section 200 Cr.P.C. alleging an offence punishable under Section 420 I.P.C. in respect of a dishonoured cheque for a sum of Rs.25,000/-. According to the Petitioner, his counsel advised that since the cheque was dishonoured for the reason that the account was closed, an offence punishable under Section 138 of the Act would CRMC.841/2008 -2- not lie and that was the reason why he lodged a private complaint for an offence punishable under Section 420 I.P.C. The said private complaint was forwarded to the police by the Magistrate by acting under Section 156(3)Cr.P.C. The police registered the case as Crime No.364/2003 of Town East Police station, Thrissur for an offence punishable under Section 420 I.P.C. The Magistrate took cognizance of the said offence on the police report as C.C.NO.685/2004. 3. According to the Petitioner, all the ingredients of Section 138 of the N.I. Act are made out in the original complaint and the documents produced along with the police report and that was why the petitioner filed an application to alter the charge for an offnece punishable under Section 138 of the Act also. 4. Since cognizance in C.C.No.685/2004 was taken on a police report and cognizance for an offence punishable under Section 138 of the Act can be taken only on a compliant, and that too, after being satisfied that the statutory formalities have been complied with, the learned Magistrate was right in dismissing the request to alter the charge. But then, the learned CRMC.841/2008 -3- Magistrate can very well fall back upon the private complaint originally filed before him and it must be available in the records accompanying the police report. It is still open to the magistrate to take cognizance of the offence punishable under Section 138 of the Act by falling back upon the private complaint. Accordingly, while upholding Annexure-C order it is clarified that in case the petitioner makes a motion before the Magistrate for taking cognizance of the offence punishable under Section 138 of the Act on the private complaint initially filed before the Magistrate and if there are materials before the Magistrate for taking cognizance under Section 138 of the Act, Annexure-C order will not stand in the way of the Magistrate exercising such power. That is the only way to salvage the situation. This Crl.M.C. is disposed of accordingly. V. RAMKUMAR, JUDGE ks.