IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3063 of 2007()
1. AUGUSTINE, S/O. VARGHESE,
... Petitioner
Vs
1. B. HARIHARA SUDHAN, S/O. BHASKARAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :DR.V.N.SANKARJEE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/10/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 3063 OF 2007
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Dated this the 18th day of October, 2007
O R D E R
The revision petitioner who is the complainant in
C.C.No.1203/05 on the file of JFCM-II, Cherthala, challenges the
order dated 29.6.07 passed by the said Magistrate dismissing
Crl.M.P.No.2214/07 filed by the petitioner seeking alteration of the
charge under section 216 Cr.P.C. from Section 138 of the
Negotiable Instruments Act, 1881 to Section 420 IPC.
2. I heard the learned counsel for the revision petitioner
as well as the learned counsel for the respondent/accused.
3. The learned counsel for the revision petitioner
submitted that Annexure-I private complaint was filed not only
under sections 138 and 142 of the Negotiable Instruments Act but
also under section 420 IPC but the Magistrate took cognizance
only of the offence punishable under section 138 of the N.I. Act
and during the progression of the trial when the account
particulars were produced by the drawee bank it became known
that the accused was not the account holder but the account
holder was somebody else. This according to the revision
Crl.R.P.No.3063/07
: 2 :
petitioner was the reason for filing Crl.M.P.2214/07 seeking
alteration of charge.
4. It is true that the private complaint as originally filed
does propose to prosecute the accused for offences punishable
under section 138 of the N.I. Act and also section 420 IPC. But
then, the ground on which section 420 IPC is based is not on
account of the fact that the account holder is not the accused but
somebody else. On the contrary, the allegation in the complaint
so as to bring it under section 420 IPC is that when the cheque
was presented it was dishonoured for the reason that the account
was closed. Annexure-I private complaint does not contain
allegations to the effect that the account particulars obtained from
the drawee bank revealed that the account holder was not the
accused but somebody else. On the contrary, it is admitted that
this information came to the knowledge of the revision petitioner
only during the course of C.C.No.1203/05 and which was not
known to him when he instituted the said private complaint. If so,
the court below cannot be faulted for dismissing the petition for
alteration of charge. The order passed by the court below is
upheld. But it is made clear that the dismissal of the said petition
Crl.R.P.No.3063/07
: 3 :
will not preclude the revision petitioner from filing a fresh complaint
with necessary materials for prosecuting the respondent/accused
for an offence punishable under section 420 IPC if he is so
advised.
This revision is disposed of as above.
(V. RAMKUMAR, JUDGE)
aks