By filing this revision application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (for short "the Code"), the petitioner has challenged order passed below application Exh-73 in Criminal Case No.1585 of 1999 on 27.4.2010 pending in the Court of learned JMFC, Mehsana rejecting the prayer under section 216 of the Code to alter the charge of section 420 of the IPC.
2. According to the petitioner, he initiated proceedings under section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque given by the respondent No.2; that during the pendency of the proceedings, one of the accused passed away and therefore, the case proceeded against the surviving accused; that on completion of recording of evidence of complainant, further statement of the accused also recorded and the matter was kept for arguments; that from the evidence, it was found that the signature on the cheque of respondent accused was not the signature made on specimen card and therefore, the cheque was issued with a view to commit offence of forgery and cheating and thereby, the respondent accused committed offence of cheating and criminal breach of trust; and hence, application was made to the trial Court to alter charge of section 420 of the IPC, but the same was rejected. Being aggrieved by the said decision, present revision application has been filed.
3. I have heard learned advocate Mr.Dagli for the petitioner at length and in great detail. Learned advocate Mr. Gurjar for respondent No.2 is absent.
4. Learned advocate Mr. Dagli submitted that from the recording of evidence, it transpired that the accused has committed offence under section 420 of the IPC and not under section 138 of the NI Act and therefore, the Court was required to alter the charge to section 420 of the IPC from section 138 of the NI Act. However, the trial Court committed error in not exercising the power and therefore, the impugned order is required to be set aside.
5. It appears from application Exh-73 annexed with the compilation that the petitioner filed complaint under section 138 of the NI Act and the trial Court took cognizance of the offence under section 142 of the NI Act and issued summons to the accused. Pursuant to the summons issued by the Court, the accused appeared in the Court and the trial proceeded by recording evidence. On completion of recording of evidence, further statement of the accused was also recorded. Thereafter, the petitioner gave application Exh-73 under section 216 of the Code to alter charge to section 420.
6. Under section 216 of the Code, any Court may alter or add to any charge any time before judgment is pronounced. It is not in dispute that the Court took cognizance of the offence under section 142 of the NI Act. The alteration of charge is prayed on the ground that during the course of recording of evidence, offence under section 420 of the IPC is made out. Under section 216 of the Code, the Court has power to add to or alter the charge before pronouncement of the judgment. In view of the fact that the trial Court took cognizance of the offence under a special statute governing commercial transaction and the Court was exercising power under special statute, the trial Court could not have altered the charge for the offence alleged to have been committed under the IPC. Therefore, the trial Court was justified in rejecting the application. Learned advocate Mr. Dagli failed to point out that the trial Court committed jurisdictional error. Therefore, the revision application requires to be dismissed.
7. In the result, the revision application fails and stands dismissed. Notice discharged. Interim relief, if any, stands vacated.
(BANKIM.N.MEHTA, J.) shekhar* Top