IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 2888 of 2005() ------------------------- CC.72/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, AMBALAPPUZHA .................... PETITIONER/ACCUSED: ------------------------- P. PREMA KUMAR, THOTTUMKARA MADAM WESTERN GATE, AMBALAPPUZHA. BY ADV. SRI.K.RAMAKUMAR (SR.) SMT.SARITHA DAVID CHUNKATH RESPONDENTS: STATE & COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MR. HARIDAS, THUNDIL VEEDU, KAKKAZHAM P.O., ALAPPUZHA-5. BY PUBLIC PROSECUTOR SHRI AMJAD ALI FOR R1 ADV.SRI.S.SANAL KUMAR & SMT.BHAVANA VELAYUDHAN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.11061/05 IN CRL.M.C.NO.2888/05 //DISMISSED// 11.12.2008 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, JJ. ----------------------------------------------------- CRL.M.C.No.2888 OF 2005 ----------------------------------------------------- DATED THIS THE 11th DAY OF DECEMBER, 2008 O R D E R The petitioner herein is the accused in C.C.No.72/04 before the Court of J.F.C.M., Ambalappuzha. The petitioner is challenging the validity of Annexure C order dated 30.7.2005 in C.M.P.No.2047/05 passed by the J.F.C.M., Ambalappuzha. The prayer in this petition is to quash Annexure C order and the application for amendment Annexure B by exercising the extraordinary power of this Court under Section 482 of Cr.P.C. 2. Heard the learned counsel appearing for the petitioner and the 2nd respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel appearing for the petitioner that Annexure A complaint was filed originally by the second respondent herein under Section 420 of Indian Penal Code. The learned Magistrate took cognizance of the case as C.C.No.72/2004. Annexure A complaint was filed on 23.9.2003. CRL.M.C.NO.2888/05 2 Subsequently, the second respondent filed Annexure B petition before the concerned court for incorporating Section 138 of the Negotiable Instruments Act also, by filing a petition on 2.7.2005 along with an affidavit. In pursuance of that petition, Annexure C order has been passed by the learned Magistrate, which is without jurisdiction and cannot be allowed. Therefore, that order is liable to be quashed, it is submitted. 4. Learned counsel for the second respondent submitted that sufficient ingredients are there in the original complaint to attract the offence under Section 138 of N.I.Act and for incorporating that Section also along with the impugned complaint, Annexure B petition was filed and there is no illegality in Annexure C order. 5. I have perused the records and also the allegations in this petition. The prayer made by the second respondent in Annexure B petition is to amend the original complaint filed on 23.9.2003 for the offence under Section 420 of Indian Penal Code and to include Section 138 of the Negotiable Instruments Act. The order of the learned Magistrate, Annexure C reads as follows: CRL.M.C.NO.2888/05 3 “This is a petition filed by the complainant to amend the complaint by incorporating Section 138 of N.I.Act. The complaint is filed u/s.420 IPC. On going through the complaint, it can be seen that the ingredients of Section 138 of Negotiable Instruments Act appear to have attracted. No prejudice will be caused to the accused by incorporating S.138 of Negotiable Instruments Act. Hence petition is allowed.” Thus, it is evident from the impugned order that the learned Magistrate has allowed the petition for amendment and Section 138 of the Negotiable Instruments Act was incorporated for the reason that sufficient ingredients are there to attract Section 138 of N.I.Act and no prejudice will be caused to the accused. There is no provision in the Code of Criminal Procedure to allow an amendment of the original complaint thereby incorporating Section 138 of N.I.Act also in a complaint originally filed under Section 420 of IPC only. If sufficient ingredients are there, the Magistrate can frame charge under Section 138 of N.I.Act also. The proceedings in this case has not reached that stage. Before CRL.M.C.NO.2888/05 4 reaching that stage, the petitioner herein has approached the trial court to invoke the provision of law to amend the complaint which is not there in the Cr.P.C. Therefore, the procedure adopted by the learned Magistrate is not correct and the same was passed inadvertently. Therefore, I find that this is a fit case where Annexure C order is liable to be quashed by invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. Therefore, the prayer in this petition to quash Annexure C order passed by the learned Judicial First Class Magistrate, Ambalappuzha, is allowed. In the result, the Crl.M.C. is allowed. M.C.HARI RANI, JUDGE. dsn