The petitioner has filed the above Criminal Original Petition to call for the records in C.C.No.493 of 2004 on the file of the Judicial Magistrate No.I, Udumalpet and quash the same.
2. The respondent/complainant's case is that he has filed the C.C.No.493 of 2004 against the petitioner herein for an alleged offence under Section 138 of Negotiable Instrument Act. The complainant has stated that on 19.05.2004, the petitioner/accused person had borrowed Rs.1,85,000/- from the complainant. For the said loan, the accused person issued a cheque bearing No.180109 dated 19.06.2004, drawn on Syndicate Bank, Udumalpet Branch to and in favour of the complainant. The said cheque was presented by the complainant with his bankers namely Karur Vysya Bank, Udumalpet Branch on 19.06.2004. The said cheque was returned with a memo with an endorsement, "Insufficient Funds in the Account". Thereafter, the complainant sent a legal notice to the accused on 24.06.2004 by RPAD. The same was received by the accused on 28.06.2004. After receipt of the notice, the accused sent a reply notice on 10.07.2004. The rejoinder was sent by the complainant's Counsel on 20.07.2004. Thereafter, the complainant filed the above case along with six documents and mentioned three witnesses.
3. The Learned Magistrate has taken the case on his file and issued summons to the accused. In the said case, the complainant has been examined as PW1, Branch Manager, Syndicate Bank has been examined as PW2, one Bhagyalakshmi, Sister of the accused has been examined as PW3. After recording their evidence, the character of the case has not been covered under Section 138 of the Negotiable Instrument Act. Hence, the complainant filed a petition before the said Learned Magistrate in C.M.P.No.4935 of 2007 in C.C.No.493 of 2004, seeking alteration/addition of charge before the Trial Court before pronouncing the Judgment, stating new materials making out offence under
Section 420 of IPC, have come to light. Hence, the complainant invoked
Section 216 of CrPC. The learned Magistrate allowed the C.M.P.No.4935 of 2007.
4. At this stage, the petitioner/accused has filed the quash petition for the below mentioned reasons:-
The petitioner/accused stated that the material on record before the Learned Magistrate do not disclose any offence prima facie either under Section 138 of the Negotiable Instruments Act or under
Section 420 of IPC. The petitioner further contended that the material placed before the Court clearly revealed that the account on which the cheque in question was drawn, did not belong to the petitioner and on this score alone, no prosecution could be maintained under Section 138 of the Negotiable Instruments Act. It is alleged that the Magistrate had not considered that the cheque in question was lost as early as 2000 while shifting residence. Further, the cheque was not signed by the account holder at the time of the cheque book was lost. It is alleged that there was a complaint laid with the police about the missing of cheque book. The same fact also was deposed before the Learned Magistrate. The accused's sister i.e. PW3 deposition cannot be a new fact giving rise to alteration of charge. Hence, the petitioner has sought for quashing the proceedings in C.C.No.493 of 2004.
5. Considering the ingredients of the complaint and contents of the order in CMP.No.4935 of 2007 in C.C.No.493 of 2004, and contentions of the petitioner and arguments advanced by the Learned Counsels for their respective parties and perusal of Judgment reported in CDJ Law Journal, Eswaramoorthy -vs- Surya Chakra Spinning Mills (P) Ltd., the Court is of the view that in the said case, more complications have arisen after recording the statement from the complainant's side. Because new facts have come out, the complainant has filed the petitioner for alteration under
Section 420 of IPC. As per
Section 216 of CrPC, the Magistrate is empowered to alter/add the relevant Section pertaining to the case when new facts come about at the time of adjudication. The learned Magistrate has accordingly done this. In the interest of Justice, the petitioner/ accused has to face the trial in the instance case, so that correct verdict can be given to the parties concerned. Hence, the Criminal original Petition No.35094 of 2007 has got to be dismissed. Accordingly, it is dismissed. Consequently, connected Miscellaneous Petition is closed.
mps/mra To
1. The Judicial Magistrate No.I, Udumalpet
2. The Public Prosecutor, High Court, Madras 104