IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2888 of 2005()
1. P. PREMA KUMAR, THOTTUMKARA MADAM
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. MR. HARIDAS, THUNDIL VEEDU,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :11/12/2008
O R D E R
M.C.HARI RANI, JJ.
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CRL.M.C.No.2888 OF 2005
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DATED THIS THE 11th DAY OF DECEMBER, 2008
O R D E R
The petitioner herein is the accused in C.C.No.72/04 before
the Court of J.F.C.M., Ambalappuzha. The petitioner is
challenging the validity of Annexure C order dated 30.7.2005 in
C.M.P.No.2047/05 passed by the J.F.C.M., Ambalappuzha. The
prayer in this petition is to quash Annexure C order and the
application for amendment Annexure B by exercising the
extraordinary power of this Court under Section 482 of Cr.P.C.
2. Heard the learned counsel appearing for the petitioner
and the 2nd respondent. Heard the learned Public Prosecutor
also.
3. It is submitted by the learned counsel appearing for
the petitioner that Annexure A complaint was filed originally by
the second respondent herein under Section 420 of Indian Penal
Code. The learned Magistrate took cognizance of the case as
C.C.No.72/2004. Annexure A complaint was filed on 23.9.2003.
CRL.M.C.NO.2888/05 2
Subsequently, the second respondent filed Annexure B petition
before the concerned court for incorporating Section 138 of the
Negotiable Instruments Act also, by filing a petition on 2.7.2005
along with an affidavit. In pursuance of that petition, Annexure C
order has been passed by the learned Magistrate, which is
without jurisdiction and cannot be allowed. Therefore, that order
is liable to be quashed, it is submitted.
4. Learned counsel for the second respondent submitted
that sufficient ingredients are there in the original complaint to
attract the offence under Section 138 of N.I.Act and for
incorporating that Section also along with the impugned
complaint, Annexure B petition was filed and there is no illegality
in Annexure C order.
5. I have perused the records and also the allegations in
this petition. The prayer made by the second respondent in
Annexure B petition is to amend the original complaint filed on
23.9.2003 for the offence under Section 420 of Indian Penal Code
and to include Section 138 of the Negotiable Instruments Act.
The order of the learned Magistrate, Annexure C reads as follows:
CRL.M.C.NO.2888/05 3
“This is a petition filed by the complainant to
amend the complaint by incorporating Section 138 of
N.I.Act.
The complaint is filed u/s.420 IPC. On going
through the complaint, it can be seen that the
ingredients of Section 138 of Negotiable Instruments Act
appear to have attracted. No prejudice will be caused to
the accused by incorporating S.138 of Negotiable
Instruments Act. Hence petition is allowed.”
Thus, it is evident from the impugned order that the learned
Magistrate has allowed the petition for amendment and Section
138 of the Negotiable Instruments Act was incorporated for the
reason that sufficient ingredients are there to attract Section 138
of N.I.Act and no prejudice will be caused to the accused. There
is no provision in the Code of Criminal Procedure to allow an
amendment of the original complaint thereby incorporating
Section 138 of N.I.Act also in a complaint originally filed under
Section 420 of IPC only. If sufficient ingredients are there, the
Magistrate can frame charge under Section 138 of N.I.Act also.
The proceedings in this case has not reached that stage. Before
CRL.M.C.NO.2888/05 4
reaching that stage, the petitioner herein has approached the
trial court to invoke the provision of law to amend the complaint
which is not there in the Cr.P.C. Therefore, the procedure
adopted by the learned Magistrate is not correct and the same
was passed inadvertently. Therefore, I find that this is a fit case
where Annexure C order is liable to be quashed by invoking the
inherent jurisdiction of this Court under Section 482 of Cr.P.C.
Therefore, the prayer in this petition to quash Annexure C order
passed by the learned Judicial First Class Magistrate,
Ambalappuzha, is allowed.
In the result, the Crl.M.C. is allowed.
M.C.HARI RANI, JUDGE.
dsn