Andhra Pradesh High Court - Amravati
Thota Dasavatharam vs Jampana Dhanaraju on 24 January, 2024
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION No. 7815 OF 2019
ORDER:
The present Criminal Petition is filed to call for the record
relating to order dated 19.07.2019 passed in Criminal MP No.685
of 2019 in C.C. No.384 of 2016 and the consequential notice
dated 27.09.2019 on the file of the I Additional Junior Civil
Judge-cum-I Additional Judicial Magistrate of I Class,
Bhimavaram and to quash the same.
2. The brief facts of the case are that the 1st respondent/
complainant has filed a complaint under Section 199 and 200
Cr.P.C. praying the Court to take cognizance of the offence under
Section 138 and 142 of Negotiable Instruments Act, 1881 and
Section 420 IPC and to punish the accused under the aforesaid
sections.
3. It appears that the Court has taken cognizance for the
offence under Sections 138 and 142 of NI Act and the 1st
respondent/complainant was examined in chief as well as cross
examination on 04.11.2018 and PW2 was also examined in chief
on 26.10.2018 and he was cross examined by the accused
counsel on 3.12.2018. Be that as it may, the 1st
respondent/complainant has filed Criminal MP No.685 of 2019
seeking addition of charges under Section 420 and 468 IPC in
addition to the charges under Section 138 of the NI Act on the
grounds that the cheque which was issued by the
petitioner/accused belongs to account maintained by the wife of
the respondent/accused with malicious intention to cheat the
complainant has issued the cheque of his wife by putting his
signatures. Therefore, he would contend that the offence under
Section 420 and 468 IPC would attract against the
respondent/accused. Hence, prayed to allow the Criminal M.P.
No.685 of 2019.
4. The petitioner/accused has contended that the addition of
charges under Sections 420 and 468 IPC is not permissible
under law to add the charges as the Court has taken cognizance
under Section 138 of NI Act which is a special statute, as such
he prayed to dismiss the Criminal M.P. No.685 of 2019.
5. After considering the oral arguments of the complainant
and the accused, the Court below has allowed the application by
an order dated 19.07.2019 to alter by adding the charge under
Sections 420 and 468 of IPC, as the 1st respondent/complainant
has no opportunity to know that the cheque belongs to the
account maintained by the wife of the accused.
6. Assailing the said order in altering the charge, adding
charges under Sections 420 and 468 IPC in Criminal M.P.
No.685 of 2019 in C.C. No.384 of 2016 on the file of the I
Additional Junior Civil Judge-cum-I Additional Judicial
Magistrate of I Class, Bhimavaram, the present Criminal Petition
is filed to quash the aforesaid order on the ground that the Court
cannot take cognizance as the Court has already taken
cognizance for the offence under Section 138 NI Act, which is a
special statute and it is not permissible to alter the charge,
relying the judgment of composite High Court in G. Mallieswary
v. V. Rambabu and another1, wherein the said case, the facts
are similar to the facts of the present case. In the aforesaid
judgment, the Court has quashed Section 420 IPC after
2018 (2) ALT Criminal 83
discussing the provisions under Section 143 of NI Act and
Section 262 to 265 of Criminal Procedure Code, which reads
thus:
"13. From the above, the procedure contemplated is a
summary trial. It is the mandate o the law of the land
from several expressions of the Apex Court to strictly
follow as contemplated by Section 143 of the Act to try
the cases summarily as expeditiously as possible. For
the summary trial the procedure contemplated by
summons case generally be followed besides what
Section 143(1) supra speaks of Sections 262 to 265
Cr.P.C. to the extent practicable shall apply and
therefrom even as per wording of Section 262 Cr.P.C
procedure specified in the case of summons shall be
followed except on the sentence not exceeding 3 months
in case of conviction. In fact that Section 262 (2)
Cr.P.C. no way applies here for the reason, the provisos
1 & 2 of Section 143(1) speaks of what is sentence of
imprisonment and fine that to be imposed is specified
from non-absentee clause of irrespective of what is
contained in Cr.P.C. though further in saying Section
262 to 265 Cr.P.C. apply as far as may be for trial. In
fact for summary trial by adopting summons procedure
as referred supra, there is no need by any statutory
provision for framing of charge. What Section 251
Cr.P.C. in summons case to be adopted, after supply of
copies to accused on appearance or is brought before
the learned Magistrate, the particulars of the offence in
which he is accused shall be stated to him and he shall
be asked whether pleads guilty or has any defence to
make, but it shall not be necessary to frame a formal
charge. Thus, there is no need of framing a charge and
it is not even the case from the impugned order that any
charge is framed and on the said charge accused is
examined for the examination under Section 251
Cr.P.C. much less by any hearing of the accused before
framing of such charge otherwise contemplated for
warrant cases and sessions case from the procedure
contemplated. The question of invoking section 216
Cr.P.C. much less to add Section 420IPC by the
impugned order of the learned Magistrate does not
arise. It is for the reason of once there is no charge
contemplated and no charge framed for the offence
under Section 138 of the Act, there is no question of
alteration of charge or addition of non-est charge much
less to include any penal section particularly Section
420 IPC for which there is procedure contemplated of
warrant procedure either warrant procedure on police
report or warrant procedure on private complaint from
combined reading of sections 238 to 250 Cr.P.C. In fact
it is the private complaint case even for the learned
Magistrate to invoke section 420 IPC it must be outcome
of private complaint warrant procedure and from the
evidence of prosecution at pre charge stage being
recorded and from which not discharged, if before
recording evidence under Section 245(2) Cr.P.C., at least
after recording evidence from Section 245(1) Cr.P.C., the
procedure contemplated is provided by Sections 246 &
247 Cr.P.C. and the learned Magistrate cannot simply
include Section 420 IPC in the case covered by Section
138 of the Act also for the above reasons, but for if at all
remedy of the complainant available if any is otherwise
and not even from any enabling provision to file
application much less to ask the learned Special
magistrate in the private complaint case for the offence
under Section 138 of the Act that too during trial, from
the defence evidence in progress, to entertain
application to include Section 420 IPC in view of the
above.
7. In the said Judgment, it was held that the question of
invoking Section 216 Criminal Procedure Code does not arise for
adding of Section 420 IPC, as there is no charge contemplated or
charge framed for the offence under Section 138 of the NI Act, as
it is a summary trial case. Therefore, there is no question of
alteration of charge or addition of nonest charge much less to
include any penal section, particularly Section 420 IPC, for which
there is procedure contemplated of warrant procedure either on
police report or on private complaint, which establishes that on
combined reading of Sections 238 to 250 of Criminal Procedure
Code. Wherein the said case also the Court has taken
cognizance under Section 138 of NI Act and an application was
filed to alter the charge by adding Section 420 IPC and the same
was allowed, assailing the said order, the Criminal Petition was
filed under Section 482 of Criminal Procedure Code and the same
was set aside in aforesaid judgment.
8. The facts in the present case and the facts in the stated
case are one and the same. Therefore, learned Magistrate has
miserably failed to consider the provisions of Section 238 to 250
of Criminal Procedure Code before altering the charge by adding
Section 420 and 468 of IPC. The 1st respondent/complainant
though have pleaded in the complaint that the
petitioner/accused has cheated the complainant by issuing
cheque which belongs to the wife of the accused, despite the
complaint filed under Sections 138 of NI Act and Sections 420
and 468 IPC. The Court has taken cognizance only for the
offence under Section138 of NI Act, which is a special statute and
has not taken any cognizance for the offence under Sections 420
and 468 IPC. The Petitioner would have been assailed the same
at the earliest point of time. As the Court has not taken
cognizance for the offence under Sections 420 and 468 IPC, at
the fag end of the trial, the petitioner cannot maintain the
present application for alteration of the charge to add Sections
420 and 468 IPC, in view of the judgment referred supra, in
G.Malleisewari case, this Court found that the order impugned is
nonest in law. Hence, it is liable to be set aside.
9. Accordingly, the Criminal Petition is allowed and the Order
dated 19.07.2019 in Criminal M.P. No.685 of 2019 in C.C.
No.384 of 2016 on the file of the I Additional Junior Civil Judge-
cum-I Additional Judicial Magistrate of I Class, Bhimavaram, is
hereby set aside and the Court below is directed to proceed the
trial for the offence under Section 138 of NI Act.
As a sequel, interlocutory applications, if any pending in
this Criminal Petition shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 24.01.2024
HARIN
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
Crl.P No.7815 OF 2019
Date: 24-01-2024
Harin
