Jayan vs Kousalya.P.K. on 13 December, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4452 of 2007()


1. JAYAN, S/O.NARAYANAN,
                      ...  Petitioner

                        Vs



1. KOUSALYA.P.K., W/O.PRABHAKARAN,
                       ...       Respondent

2. THE STATE OF KERALA, REP. BY THE

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :13/12/2007

 O R D E R
                         V. RAMKUMAR , J
            ==========================
                 CRL.R.P. NO. 4452 of 2007
            ==========================
           Dated this the 12th day of December, 2007.


                              ORDER

The revision petitioner, who was the complainant in C.C.No.

467/2002 on the file of the Judicial First Class Magistrate,

Wadakkancherry, challenges the failure on the part of the said

Magistrate to try the accused for an offence punishable under

Section 138 of the Negotiable Instruments Ac, 1881 after having

taken cognizance of the said offence as well as one punishable

under Section 420 IPC.

2. The case arises out of a private complaint filed by the

petitioner alleging the commission of offences punishable under

Sections 420 IPC and Section 138 of the Negotiable Instruments

Act, 1881. Even though the learned Magistrate took cognizance

of both the said offences during the progression of the trial, the

court came to the conclusion that the offences which were really

made out are those punishable under Section 420, 465, 467 and

471 IPC. Accordingly, the charge was altered and the accused

CRL.R.P. NO. 4452/2007 : 2:

was charged for offences punishable under Sections 424, 465,

467 and 471 IPC. Evidently, with the alteration of the charge

the offence punishable under Section 138 of the Negotiable

Instruments Act was deleted from the charge. But, after trial the

court came to the conclusion that offences with which the

accused stood charged were not proved and accordingly acquitted

the accused. An opportunity was, however, given to the revision

petitioner to file a fresh complaint under Section 138 of the

Negotiable Instruments Act.

3. Although the magistrate had initially taken cognizance of

offences punishable under Sections 420 IPC and Section 138 of

the Negotiable Instruments Act, subsequently the accused was

charged only for offences punishable under Sections 420, 465,

467 and 471 IPC. As there was no charge for an offence

punishable under Section 138 of the Negotiable Instruments Act

and the accused did not stand trial for the said offence, even

without any observation or opportunity granted by the court, the

complainant would be entitled to prosecute the accused for the

offence under Section 138 of the Negotiable Instruments Act

CRL.R.P. NO. 4452/2007 : 3:

upon the acquittal of the accused of the offences punishable

under Sections 420, 465, 467, and 471 IPC. The alteration of the

charge does not have the effect of discharging or acquitting the

accused of the offence punishable under Section 138 of the

Negotiable Instruments Act since the accused did not stand

charged for the said offences. This being the position, I see no

ground to interfere with the judgment under revision. As rightly

observed by the Magistrate, the acquittal of the accused for the

IPC offences will not preclude a prosecution for the offence under

Section 138 of the Negotiable Instruments Act.

The revision is accordingly dismissed.

V. RAMKUMAR, JUDGE.

rv

CRL.R.P. NO. 4452/2007 : 4: