1 APPLN 5049/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5049 OF 2010 Rohit Bajaj ..... Applicant. v/s The State of Maharashtra and others ..... Respondents. Mr. Sandeep Velkar i/b Vishwajeet Mohite for the applicant. Mr. D.R. More, APP for the State. CORAM: V.M. KANADE, J. DATE : 19th November, 2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the applicant. 2. Applicant is aggrieved by the order passed by the learned Magistrate dated 14/6/2010. By the said order, the learned Magistrate was pleased to suo motu alter the charge which was framed against the accused and the charge against accused Nos. 2 and 4 was framed for an offence punishable under section 138 read with section 141 of the Negotiable Instruments Act. This order was challenged by the applicant before the Sessions Court. The Sessions Court, however, by its judgment and order dated 15/10/2010 was 2 APPLN 5049/10 pleased to confirm the order passed by the learned Magistrate. 3. Brief facts are that a complaint was filed by Respondent No.2 for the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act. Process was issued only under section 138 of the Negotiable Instruments Act. Plea was also recorded for the offence punishable under section 138 only. The complainant filed an affidavit in lieu of evidence and he was cross-examined by the applicant. Thereafter, the learned Magistrate, after hearing both side directed that the charge be altered and the offence under section 141 also be added. This order was confirmed by the Sessions Court. 4. The learned Counsel appearing on behalf of the applicant vehemently urged that the learned Magistrate had committed material irregularity by passing the impugned order. He submitted that cross-examination of the complainant was over. Initially, process was issued only for the offence punishable under section 138. Plea was also recorded under section 138 and, therefore, it was not now open for the Magistrate to add section 141 of the Negotiable Instruments Act since it amounts to review of his order of issuance of process under section 138 of the Negotiable Instruments Act. He submitted that prejudice was caused to accused as a result of alteration of charge. He also submitted 3 APPLN 5049/10 that as contemplated under sub-section 2 of section 216, the said alteration was not explained to the accused. 5. The submissions made by the learned Counsel for the applicant cannot be accepted. In the present case, complaint was filed under section 138 read with section 141 of the Negotiable Instruments Act. Process, however, was issued only under section 138 of the Negotiable Instruments Act. After cross-examination of the complainant was over, the learned Magistrate was of the opinion that the charge should be altered and the offence under section 141 should also be added. 6. In my view, there is no infirmity in the order passed by the learned Magistrate. Section 216 of the Criminal Procedure Code reads as under:- “216. Court may alter charge :- (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceedings 4 APPLN 5049/10 immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alternation or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 5 APPLN 5049/10 Perusal of the aforesaid section clearly indicates that the Trial Court has power to alter the charge at any stage before pronouncement of the judgment. In the present case, after the evidence of the complainant was over, the learned Magistrate was of the view that offence under section 141 should also be added with section 138 and, accordingly, he has exercised the discretion vested in him under section 216 of the Criminal Procedure Code. 7. Before, however, the said alteration could be explained and interpreted to the accused, the order passed by the learned Magistrate was challenged in the Sessions Court and, therefore, it is obvious that compliance under section 216 sub-clause (2) could not be made by the learned Magistrate. It is obvious that prejudice would be caused to the accused if the charge is altered and the accused would be entitled to again cross-examine the complainant in view of the alteration of the charge. 8. The criminal application is dismissed. However, the learned Magistrate is directed to follow the procedure laid down under section 216 sub-clause (2) and permit the applicant to cross-examine the complainant and her witnesses. All other questions raised in this application are kept open and Trial Court shall decide the same at the time of trial. 6 APPLN 5049/10 9. Application is accordingly disposed off. V.M. KANADE, J.