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Kerala High Court
Padmakumar vs State Of Kerala on 17 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4699 of 2010()


1. PADMAKUMAR, S/O.RAMACHANDRAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. K.KRISHNAPRASAD, S/O.KANDAMUTHAN,

                For Petitioner  :SRI.P.VIJAYA BHANU (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/12/2010

 O R D E R
          M.SASIDHARAN NAMBIAR,J.

           ---------------------------------------------
           CRL.M.C.NO.4699 OF 2010
           ---------------------------------------------
           Dated 17th December, 2010


                          O R D E R
            Petitioner               lodged           a  complaint

before  Judicial          First          Class          Magistrate,

Chittur alleging that second respondent

committed offence under Section 420 of

Indian Penal Code and Section 138 of

Negotiable Instruments Act. Learned

Magistrate has taken cognizance in

S.T.5226/1998 for the offence under Section

417 of Indian Penal Code alone, based on

the evidence recorded. By Annexure-B

judgment, second respondent was acquitted

under Section 255(1) of Code of Criminal

Procedure on 9/12/1998. Petitioner

challenged the order of acquittal by filing

Crl.A.422/1999 before this Court. By

Crmc 4699/10 2

judgment dated 11/7/2007 the order of acquittal

was set aside and the case was sent back to the

trial court for fresh consideration, as this

Court found that matter requires

reconsideration. This Court also directed the

Magistrate to afford opportunity to both the

second respondent and the petitioner to adduce

further evidence, if they so desires and to

dispose the case untramelled by any observation

in the earlier judgment. Petitioner subsequent

to the order of remand filed Annexure-D

petition, C.M.P.474/2008, to alter the charge,

for the offence under Section 138 of

Negotiable Instruments Act contending that as

per subsequent decision of this Court, even if,

the cheque was issued on an account which was

closed, an offence under Section 138 of

Negotiable Instruments Act is attracted. By

Annexure-E order, learned Magistrate dismissed

Crmc 4699/10 3

the petition. Petitioner challenged that order

before Sessions Court, Palakkad in

Crl.R.P.89/2008. Learned Additional Sessions

Judge by Annexure-F order dated 13/8/2010,

dismissed the revision holding that as the

learned Magistrate has not taken cognizance of

the offence under Section 138 of Negotiable

Instruments Act, it is to be treated as an

order of acquittal/discharge of that offence

against the accused and therefore, the charge

cannot be altered as sought for. Petition is

filed under Section 482 of Code of Criminal

Procedure to quash Annexures-E and F orders and

alter the charge for the offence under Section

138 of Negotiable Instruments Act.

2. Learned counsel appearing for the

petitioner was heard.

3. Argument of the learned counsel

appearing for the petitioner is that learned

Crmc 4699/10 4

Magistrate originally did not take cognizance

of the offence under Section 138 of Negotiable

Instruments Act. Decisions of this Court, as

then stood was that if a cheque is drawn is an

account, which was already closed, an offence

under Section 138 of Negotiable Instruments

Act is not attracted. Later Division Bench of

this Court held that even in such an event, an

offence under Section 138 of Negotiable

Instruments Act is attracted. Argument is that

in such circumstances, learned Magistrate

should have altered the charge for the offence

under Section 138. Relying on the decision of

this Court in Prakasan v. State of Kerala (2008

(1) Kerala ILR 17) it was argued that even

though, learned Magistrate has not taken

cognizance of the offence under Section 138 of

Negotiable Instruments Act, no reason has been

shown why the said offence was not taken

Crmc 4699/10 5

cognizance and therefore, the order, not taking

cognizance would only be a nullity and if that

be so, courts below were not justified in not

altering the charge for the offence under

Section 138 of Negotiable Instruments Act for

the reason that failure to take cognizance for

the offence under Section 138 of Negotiable

Instruments Act would amount to an order of

discharge or acquittal.

4. Learned Magistrate had originally

taken cognizance for the offence under Section

417 of Indian Penal Code alone, though

complaint was filed alleging that second

respondent committed an offence under Section

420 of Indian Penal Code and Section 138 of

Negotiable Instruments Act. That was in 1998.

Petitioner did not challenge the order not

taking cognizance for the offence under Section

138 of Negotiable Instruments Act. He

Crmc 4699/10 6

participated in the trial in S.T.5226/1998. The

second respondent was acquitted on 9/12/1998.

Petitioner challenged the order of acquittal

before this Court. Before this Court, the

petitioner had no case that learned Magistrate

should have taken cognizance for the offence

under Section 138 of Negotiable Instruments

Act or that an offence under Section 138 is

attracted. Even when criminal appeal was heard,

petitioner did not sought an opportunity to

alter the charge or raise any contention that

on the facts, an offence under Section 138 of

Negotiable Instruments Act was attracted. The

decision of the Division Bench of this Court

that even if the cheque was issued in an

account which was closed would attract an

offence under Section 138 of Negotiable

Instruments Act overruling the earlier decision

was much earlier to the filing of the appeal.

Crmc 4699/10 7

That decision was available even when the

appeal was heard and disposed by this Court on

11/7/2007. The remand was only for the purpose

of adducing further evidence and disposal. The

Magistrate was bound by the order of remand.

Annexure-D application to alter the charge was

filed before the Magistrate only on 17/1/2008,

about ten years after taking cognizance for the

offence under Section 417 of Indian Penal Code.

Evidently, attempt of the petitioner is to take

cognizance of the offence under Section 138 of

Negotiable Instruments Act in 2008, on a

complaint filed in 1998.

5. Under Section 468 of Code of

Criminal Procedure, Court cannot take

cognizance of the offence after the period of

limitation provided thereunder. Under Section

468(2)(c), the period of limitation is three

years, if the offence is punishable with

Crmc 4699/10 8

imprisonment for a term not exceeding one year

but not exceeding three years. Hence cognizance

could not have been taken after three years,

even if the period of limitation as provided in

Section 138 of Negotiable Instruments Act is

not applicable. In such circumstances, I find

no reason to interfere with the order passed

by the learned Magistrate, as confirmed by the

learned Sessions Judge, refusing to alter the

charge for the offence under Section 138 of

Negotiable Instruments Act.

Petition is dismissed.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.


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