IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.MC.No. 3732 of 2009() ------------------------- CRRP.19/2005 of SESSIONS COURT, THRISSUR CMP.NO.1685/2004 IN CC.63/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER(S): REVISION PETITIONER/ACCUSED: ---------------------------------------------------------------------------- DR.P.S.KRISHNADAS, MOTHER HOSPITAL AYYANTOLE, THRISSUR, RESIDENTIAL ADDRESS: DR.P.S.KRISHNADAS,S/O.P.SANKARAN EZHUTHACHAN, PUTHENVEETTIL HOUSE, CHERUPULLASSERI,PALAKKAD. BY ADVS. MR.T.H.ABDUL AZEEZ, MR.P.M.ABDUL JALEEL. RESPONDENT(S): RESPONDENTS:COMPLAINANT: ---------------------------------------------------------------------------- 1. K.T.THOMAS, S/O.THOMAS, KOCHERY HOUSE, LOKAMALESWARAM, KODUNGALLUR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3732 OF 2009 =========================== Dated this the 20th day of November,2009 ORDER Petitioner is the accused in C.C.63/2003 on the file of Judicial First Class Magistrate Court, Kodungallur. First respondent filed a complaint alleging that petitioner committed the offence under section 138 of Negotiable Instruments Act as well as Section 420 of Indian Penal Code. Learned Magistrate took cognizance of the offence under section 420 of Indian Penal Code and issued summons to the petitioner. Petitioner appeared and defended the case. While the case is pending trial respondent filed C.M.P 1685/2004, an application under section 216 of Code of Criminal Procedure to alter the charge contending that charge for an offence under section 138 of Negotiable Instruments Act should have been framed, as an offence under section 138 of Negotiable Instruments Act was attracted. Petitioner resisted the petition contending that Section 216 of Code of Criminal Procedure is not applicable and cognizance for an offence under section 138 of Negotiable Instruments Act cannot be taken after Crl.M.C.3732/2009 2 45 days from the date of receipt of the notice sent under section 138(b) of Negotiable Instruments Act and respondent did not file a revision when cognizance was not taken for an offence under section 138 of Negotiable Instruments Act. By Annexure-A order learned Magistrate allowed the application and decided to proceed for the offence under section 138 of Negotiable Instruments Act also. Petitioner challenged that order before Sessions Court by filing Crl.R.P.19/2005. Learned Sessions Judge dismissed the revision under Annexure B order. This petition is filed under section 482 of the Code of Criminal Procedure, to quash Annexure A and B orders. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for the petitioner is that all the provisions of Code of Criminal Procedure are not applicable to a case being tried for an offence under section 138 of Negotiable Instruments Act and therefore learned Magistrate cannot alter the charge. It is also argued that as Annexure A order was passed only in 2005 eventhough the complaint was filed in 2003 and learned Magistrate is not competent to proceed under section 138 of Negotiable Instruments Act by taking cognizance, after the expiry of 45 days from the date of Crl.M.C.3732/2009 3 receipt of the notice by the petitioner. 4. If on the date when the complaint was filed before the learned Magistrate, ingredients of an offence under section 138 of Negotiable Instruments Act was attracted and the Magistrate could have taken cognizance of the offence, learned Magistrate is definitely competent to alter the charge incorporating a charge for the said offence at a later stage. When it is pointed out that inspite of the disclosure of ingredients of the offence in the complaint charge for the offence under section 138 is not framed, the Magistrate is empowered to alter the charge for the offence under section 216 of Code of Criminal Procedure is not barred, in a proceeding under section 138 of Negotiable Instruments Act as claimed by the petitioner. 5. Section 142 of Negotiable Instruments Act provides that no court shall take cognizance of an offence punishable under section 138, except upon a complaint,in writing, made by the payee or, as the case may be, the holder in due course of the cheque and such complaint is made within one month of the date on which cause of action arises under clause (c) of the proviso to Section 138. Under the proviso to clause (c), cause of action would arise on the failure of the drawer to pay the amount on Crl.M.C.3732/2009 4 demand within 15 days of receipt of the notice, sent under section 138(b) of the Act by the payee. There is no prohibition to take cognizance of an offence under section 138 of Negotiable Instruments Act, within a period of 45 days of the date of receipt of the notice,if the complaint was filed in compliance with the provisions of clause (a) (b) of Section 142. Though on the date when cognizance for the offence under section 420 was taken, the Magistrate could not taken cognizance of the offence under section 138 of Negotiable Instruments Act, if not filed within 45 days from the date of receipt of the notice sent under section 138(b) of the Act, if filed within the period, Magistrate is bound to take cognizance provided ingredients of the offence are shown and the mandatory provisions are complied. Therefore for the reason that learned Magistrate has altered the charge, after 45 days from the date of receipt of the notice demanding the amount covered by the dishonoured cheque received by the petitioner, it cannot be said that Magistrate cannot alter the charge. There is no merit in the petition. It is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006