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.
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CRL.M.C.NO.4699 OF 2010
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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
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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.
