Kerala High Court
T.G.Uthaman vs Suresh N.H on 6 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1041
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
Crl.MC.No.4845 OF 2020(E)
AGAINST THE ORDER/JUDGMENT IN ST 3352/2016 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II,PATHANAMTHITTA
PETITIONER/SOLE ACCUSED:
T.G.UTHAMAN,
AGED 39 YEARS,
S/O GOPALA PILLAI,
KRISHNAKRIPA THADATHIL PUTHEN VEETTIL,
MALAYALAPUZHA THAZHAM P.O.,
PATHANAMTHITTA 689 666.
BY ADVS.
SRI.ARUN.B.VARGHESE
SMT. AISWARYA V.S.
RESPONDENTS/COMPLAINANT & STATE:
1 SURESH N.H.,
AGED 46 YEARS,
S/O HARIHARAN NAIR,
KANNAL HOUSE,
VETTOOR P.O., KUMBAZHA,
PATHANAMTHITTA DISTRICT-689 653.
2 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY SRI.C.S.HRITHWIK, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4845 OF 2020
2
ORDER
Dated this the 6th day of November 2020 This Crl.M.C. is filed challenging order dated 27-08-2020 in C.M.P.No. 254/2020 in S.T.No. 3352/2016 on the file of the Judicial First Magistrate Court-II, Pathanamthitta. This is an application filed by the accused under Sections 216 and 245 Cr.P.C. to alter the charge and discharge him. The learned Magistrate dismissed the same. Hence this Crl.M.C. is filed.
2. The case of the petitioner is that he is an accused in which the offence alleged is under Section 138 of the Negotiable Instruments Act. He filed the above petition to alter the charge invoking the power under Section 216 Cr.P.C. and thereafter discharge him. The learned magistrate said that there is no charge in proceedings under Section 138 of the Negotiable Instruments Act, and hence the petitioner cannot be discharged. Accordingly, the learned Crl.MC.No.4845 OF 2020 3 Magistrate dismissed the petition. Aggrieved by the above , this Crl.M.C. is filed.
3. Heard the learned counsel for the petitioner, Advocate Aiswarya V.S. and the learned Public Prosecutor.
4. The learned counsel for the petitioner Advocate Aiswarya V.S. argued before this Court that since there is Section 216 Cr.P.C. the court can very well alter the charge and the petitioner can be discharged. The counsel submitted that even though the offence under Section 138 of the Negotiable Instruments Act is tried as a Summons Case, the court can alter the charge and discharge the accused. The counsel vehemently argued that the learned Magistrate adopted a hyper technical view and dismissed the petition. Therefore, the counsel submitted that this Court may kindly interfere with the same.
5. It is an admitted fact that the case pending against the petitioner is initiated Crl.MC.No.4845 OF 2020 4 under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act is usually tried as a Summary Trial or as a Summons Case. In those proceedings, there is no question of framing charge. As per Section 251 Cr.P.C., only particulars of the offence will be put to the accused and there is no framing of charge in the summons Trial.
6. Section 216 Cr.P.C. is included in Chapter XVII of the Cr.P.C. That Chapter deals about charge. Section 216 is applicable when a court want to alter or add to any charge at any time before the judgment is pronounced. To attract Section 216 Cr.P.C. a charge is necessary. Then only it can be altered or any other charge can be added. Here is a case where there is no charge. Therefore, Section 216 Cr.P.C. is not at all applicable.
7. The other provision relied by the petitioner is Section 245 Cr.P.C. Section 245 Cr.P.C. is provision to discharge an accused in Crl.MC.No.4845 OF 2020 5 a case instituted otherwise than on Police Report. Section 245 is included in Chapter XIX of the Cr.P.C. Chapter XIX deals about trial of Warrant Cases by Magistrate. Admittedly, the petitioner is not facing a warrant trial.
In such situation, according to me, the petition filed by the petitioner is not legally maintainable. In such circumstances, I am not in a position to agree with Advocate Aiswarya V.S. on the legal issues raised by her.
Therefore, this Crl.M.C. is dismissed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SSK/06/11 Crl.MC.No.4845 OF 2020 6 APPENDIX PETITIONER'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF COMPLAINT DATED 18.8.2016 FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA.
ANNEXURE A2 TRUE COPY OF THE REPLY NOTICE DATED 26.7.2016 ISSUED BY THE PETITIOER'S COUNSEL ADDRESSING THE LAWYER OF THE 1ST RESPONDENT.
ANNEXURE A3 TRUE COPY OF CMP NO.254/2020 IN ST NO.3352/2016 DATED 7.1.2020 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, PATHANAMTHITTA. ANNEXURE A4 TRUE COPY OF THE OBJECTION DATED 30.1.2020 FILED BY THE 1ST RESPONDENT IN CMP NO.254/2020 IN ST.NO.3352/2016. ANNEXURE A5 CERTIFIED COPY OF THE ORDER DATED 27.8.2020 IN CMP NO.254/2020 IN ST. NO.3352/2016 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA.
RESPONDENT'S EXHIBITS:NIL SSK //TRUE COPY// PA TO JUDGE