IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.Rev.Pet.No. 1633 of 2009() ------------------------------ CMP NO.4232/2008 IN STC.3341/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S)/ACCUSED: --------------------- T.K.BHARGAVAN, M/S.T.K.ACHUTHAN & SONS, MAIN ROAD, THALASSERY. BY ADV. SRI.K.MOHANAKANNAN SRI.A.R.PAVITHA RESPONDENT(S)/COMPLAINANT: --------------- 1. NORTH KERALA FINANCE & CHITS (P) LTD., MAS TOWERS, SB 129-A, SOUTH BAZAAR, KANNUR - REP BY P.O.A RADHAKRISHNAN P.A., S/O.MADHAVAN NAMBIAR, AGED 53 YEARS, “USHASS”, VELLACHAL, P.O.MAKERI, KANNUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. ADV. SRI.V.RAMKUMAR NAMBIAR FOR R1 PUBLIC PROSECUTOR SHIR RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1633 of 2009 -------------------------------------- Dated this the 26th day of May, 2009. ORDER Respondent No.1 appears through counsel. Public Prosecutor takes notice for respondent No.2. 2. Respondent No.1 claimed that petitioner issued cheque dated 24.11.2005 for Rs. 75,000/- for the discharge of a legally enforceable debt/liability, that cheque was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Petitioner sent reply contending that he had given three blank cheques as security to respondent No.1 and that the cheque referred to in the notice is one of those cheques. Not satisfied with that, respondent No.1 filed a private complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Cognizance of that offence was taken and particulars of the offence was read over to the petitioner. Respondent No.1 adduced evidence as PW1. After closure of his evidence petitioner was questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”). He examined the manager of the drawee bank as DW1 and the ledger extract was also proved. Then it was revealed that the cheque in question is one drawn on the account maintained by one Prasanth, son of the petitioner. At that stage respondent No.1 filed petition under Section 216 of the Code requesting Crl.R.P.No.1633/2009 2 the learned magistrate to alter the charge to one under Section 420 of the Indian Penal Code. That petition was seriously opposed by the petitioner but rejecting the objection learned magistrate vide the impugned order allowed the petition. Petitioner is challenging that order. 3. Learned counsel for petitioner contended that even in the reply notice it was contended that petitioner had not issued any cheque as alleged and that at any rate in the absence of any averment in the complaint or other material indicating commission of offence punishable under Section 420 of the Indian Penal Code learned magistrate was not justified in altering the charge. It is also contended that amendment of the charge at the belated stage would prejudice the petitioner. Learned counsel relied on the decision in Edward v. Victor Immanuel (2002 (1) KLJ 101). Counsel for respondent No.1 would in response contend that it was never brought to the notice of respondent No.1 that the cheque was drawn on the account maintained by the son of petitioner and that the said fact was suppressed in the reply notice also. 4. Section 216 of the Code permits the court to alter or add to any charge at any time before judgment is pronounced subject ofcourse to the sub sections of that Section. In the decision relied on by the learned counsel it is stated that “the application for alteration should be made immediately after the charge has been read out to the accused and that there should be material either in the complaint or in the evidence for such alteration”. I stated from Section 216(1) of the Code that it is permissible to alter or add to charge “at any Crl.R.P.No.1633/2009 3 time before the judgment is pronounced”. In this case there is no case or evidence that at any time before DW1, manager of the drawee bank was examined and the relevant extract of the account was proved it was brought to the notice of respondent No.1 or the court that the cheque in question was drawn on the account of son of the petitioner. I went through the copy of reply notice sent on behalf of the petitioner which was produced by learned counsel for respondent No.1 for my perusal. There, in paragraph 2 petitioner stated that he is not liable to pay any amount covered by the cheque in question and in paragraph 3 what is stated is that “my client was a prized subscriber and he has furnished security to the same also. Your client has demanded three blank cheques and my client has given three blank cheques to your client as security also. The cheque referred to in your notice is a cheque given to your client only as a security along with other cheques.” (emphasis supplied) I have gone through the other contentions raised in the reply notice. I could not discern any contention in the reply that the cheque was drawn on the account maintained by son of the petitioner or that the cheque was not issued by the petitioner. On the other hand, on a reading of the reply notice the impression one could gather is only that the cheque referred to in the notice of respondent No.1 was issued to him by the petitioner though according to him, in blank form. Petitioner had no case that the dishonour of the cheque proved by Crl.R.P.No.1633/2009 4 respondent No.1 was for any reason such as that the cheque was drawn on the account maintained by the on of the petitioner. In other words, materials on record would reveal that it is only through DW1 and the document proved through him that it was shown that the cheque was drawn on the account maintained by the son of the petitioner. 5. Learned counsel for petitioner handed over for my perusal a copy of the statement given by the petitioner when questioned under Section 313 of the Code. There, in addition to the contention raised by the petitioner that he had given three blank cheques, it is contended that the cheque issued by his son was also given as security. Even there, it is not stated that the cheque in question was issued by the son of the petitioner. In these circumstances, if respondent No.1 moved for alteration of the charge only after the statement of the petitioner was recorded under Section 313 of the Code. and he adduced evidence in defence through DW1, the bank manager I am unable to say that since immediately after framing of the charge, respondent No.1 did not requests for alteration of charge, his request should fail. 6. Then the next question is whether petitioner is prejudiced by the alteration of the charge. I stated that he never contended till DW1 was examined that the cheque in question was issued by his son. Necessarily that must be a fact which was within his knowledge and which he did not divulge even in the reply notice. In these circumstances, I am not persuaded to think that petitioner stands prejudiced by the alteration of the charge. Crl.R.P.No.1633/2009 5 7. It is true that the complaint does not speak about the offence punishable under Section 420 of the Indian Penal Code, obviously for the reason I have already indicated above. But, sufficient materials are brought before the court which permitted and enabled that court to alter charge as provided under Section 216 of the Code. I find no reason requiring interference with the impugned order. Revision petition fails. It is dismissed. Crl.M.A.No.4963 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks