V.R.Eswaramoorthy v. 1. Suriya Chakra Spinning Mills Pvt. Ltd., by its Managing Director, M.Loganathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.10.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMCriminal Revision Case No.1448 of 2007and M.P.Nos.1 and 2 of 2007V.R.Eswaramoorthy... Petitioner-Vs.-1. Suriya Chakra Spinning Mills Pvt. Ltd., by its Managing Director, M.Loganathan 82 Kothukarar Street, Veerappan Chatiram Erode2. M.Loganathan3. L.Latha... RespondentsPrayer : Criminal Revision case filed under Sections 397 and 401 ofthe Criminal Procedure Code against the order dated 10.09.2007 madein C.M.P.No.1384 of 2007 in C.C.No.602 of 2006 on the file of thelearned Judicial Magistrate No.I, Erode.For Petitioner : Mr. N.ManokaranFor Respondents : Mr. S.JayakumarO R D E RThe complainant in C.C.No.602 of 2006 on the file of theJudicial Magistrate No.I, Erode, is the petitioner in the abovecriminal revision case. On the basis of the complaint filed by thepetitioner against the respondents herein, the learned Magistratehas taken the complaint on file for an offence punishable underSection 138 of the Negotiable Instruments Act in C.C.No.602 of2006. The cheque in question is alleged to have been returned/unpaid with an endorsement “Account transferred to suit filedaccount”. After completion of trial and hearing of arguments wasover and when the judgment has been reserved, the petitioner fileda petition in C.M.P.No.1384 of 2007 under Section 216 of theCriminal Procedure Code (in short “Cr.P.C.”)praying to alter / adda charge under Section 420 Indian Penal Code (in short “IPC”)against the respondents herein on the basis of the contentionsraised in the written arguments submitted by the learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the respondents. The respondents herein raised objections forentertaining the said petition contending that there is absolutelyno material on record to alter / add the charge for an offenceunder Section 420 IPC and merely on the basis of legal contentionsput forth in the written arguments a new charge cannot be framed.The learned Magistrate after considering the materials on recorddismissed the said petition and being aggrieved by that thecomplainant is before this Court in the above revision.2. Heard both sides.3. Mr. N.Manoharan learned counsel for the petitionersubmitted that the cheque in question was returned with anendorsement “Account transferred to suit filed account” on05.04.2004 and it shows that on the date of issuing the cheque therespondents had no account in the bank and therefore theydeceitfully issued the cheque to cheat the complainant and hence anoffence under Section 420 IPC is made out in the light of thematerials available on record. He further submitted that theprovisions contained in Section 216 of the Cr.P.C gives wide powerto the Court to alter or add any charge at any time before thejudgment is pronounced and the written arguments filed by theaccused would amply prove the commission of the offence underSection 420 IPC and therefore the order of the learned Magistrateis liable to be set-aside.4. (i) In support of his above contentions the learned counselfor the petitioner relied upon the decision of the Apex Courtreported in (2004) 5 Supreme Court Cases 347 (Hasanbhai ValibhaiQureshi v. State of Gujarat), wherein in paragraph 10 it isobserved as follows:-“10. Therefore, if during trial the trial court ona consideration of broad probabilities of the casebased upon total effect of the evidence anddocuments produced is satisfied that any additionor alteration of the charge is necessary, it isfree to do so, and there can be no legal bar toappropriately act as the exigencies of the casewarrant or necessitate.”(ii) Learned counsel for the petitioner also relied on a FullBench decision of the Andhra Pradesh High Court reported in 2001CRI. L.J. 1489 (M/s. OPTS Marketing Pvt. Ltd. v. State of A.P.)(FB), wherein in paragraph 29 (ii) it is observed as follows:-29 (ii) Even after introduction of S. 138 of theNegotiable Instruments Act, prosecution under S.420, IPC is maintainable in case of dishonour ofcheques or postdated cheques issued towardspayment of price of the goods purchased or handloan taken, or in discharge of an antecedent debtor towards payment of goods supplier earlier, ifthe charge-sheet contains an allegation that the https://hcservices.ecourts.gov.in/hcservices/ accused had dishonest intention not to pay even atthe time of issuance of the cheque, and the act ofissuing the cheque, which was dishonoured, causeddamage to his mind, body or reputation. Privatecomplaint or FIR alleging offence under S. 420,IPC for dishonour of cheques or postdated chequescannot be quashed under S. 482, Cr.P.C., if theaverments in the complaint show that the accusedhad, with a dishonest intention and to causedamage to his mind, body or reputation, issued thecheque which was not honoured”.(iii) Learned counsel for the petitioner also relied upon adecision of the learned Judge of this Court reported in 2007-2-L.W.(Cri.) 880 (N.Anbarasu v. M.Ganesan), wherein in paragraphs 6 and 7it is observed as follows:-“6. Under Section 216 Cr.P.C, the Court may alteror add any charge at any time before the judgmentis pronounced. After alteration or addition ofthe charge, the learned Magistrate may proceedwith the trial, as if the altered or added chargehad been the original charge. The trial Courtmay have to take care of the accused, so thatprejudice should not be caused to him and therebyall opportunities must be given to him.7. In such circumstances, during the course oftrial of a summons case, when new materials cameinto existence through the evidence, thecomplainant is entitled to invoke the provisionsof Section 216 Cr.P.C.”5. Countering the submissions made by the learned counsel forthe petitioner, Mr. S.Jayaraman, learned counsel for therespondents submitted that the petition under Section 216 Cr.P.Cwas filed by the revision petitioner after the examination of allthe witnesses were completed, after filing of the written argumentsunder Section 314 Cr.P.C, and when the case was posted fordelivering judgment. Learned counsel for the respondents furthersubmitted that earlier the petitioner filed Crl.R.C.No.622 of 2007and obtained stay of further proceedings in the case and ultimatelyby an order dated 17.04.2007 the criminal revision case wasdisposed of with a direction to complete the trial within a periodof two weeks from the date of receipt of a copy of the order passedin the said revision; again the petitioner filed Crl.O.P.No.11976of 2007 seeking transfer of the case to some other court andobtained stay and ultimately the said criminal original petitionwas disposed of by an order dated 27.04.2007; thereafter, the saidCMP has been filed under Section 216 Cr.P.C with an intention tofurther delay the proceedings and to harass the respondents herein.Learned counsel further submitted that a new charge can be added oraltered only if there is material in the evidence and because therewere no allegations in the complaint and there was no material in https://hcservices.ecourts.gov.in/hcservices/ the evidence to prima facie establish a charge under Section 420IPC the court below has rightly dismissed the petition filed by thecomplainant. Learned counsel further submitted that the legalcontention raised in the written arguments that the endorsement“Account transferred to suit filed account” will amount to closureof account cannot be the basis for altering the charge; thesubmissions contained in the written arguments cannot be consideredto be evidence on record and therefore the learned counselcontended that the order passed by the Court below does not callfor any interference. In support of the above said contentions,the learned counsel for the respondents relied upon the followingdecisions:-(i)1999-2-L.W.(Cri.) 807 (A.Balasubramaniam v. State, etc.).(ii)1989 CRI. L.J. 255 (Rajendra Singh v. State)(iii)2002 CRI. L.J. 1670 (T.J.Edward v. C.A.Victor Immanuel)(iv)(2006) 2 M.L.J. (Crl.) 173 (Lak Ram v. Nihal Singh)(v)2004 CRI. L.J. 920 (State of Maharashtra v. Salman SalimKhan).(I) In 1999-2-L.W. (Cri.) 807 (referred to supra) inparagraphs 9 and 10 it is observed as follows:-“9. Section 3 of the Evidence Act, while definingthe word “evidence”, would provide that thestatements made before the Court by the witnessesand documents produced for the inspection of theCourt are called oral evidence and documentaryevidence respectively.10. Admittedly, in the instant case, the evidencehas not been adduced before the trial Court.'Evidence' means, the evidence recorded during thecourse of enquiry or trial by the Court and notthe statements at the stage of investigationrecorded by the police. In other words, unlessthere is evidence recorded by the Court, Section319 Cr.P.C. cannot be invoked”.(II) In 1989 CRI. L.J. 255 (referred to supra) in paragraph 6it is observed as follows:-“6. .... This power to add to or alter a charge iscomprehensive enough for remedying defects,whether they arise out of the framing of a chargeor the non-framing of a charge and whether theyare discovered at the inception of the trial or atsubsequent stage of the trial, prior topronouncement of judgment State v. Naijnath, AIR1953 All 191 : (1953 Cri LJ 478). This power toadd to or alter a charge cannot, however, beexercised unless there are evidences on record tosupport the addition or alteration of charge ....”(III) In 2002 CRI. L.J. 1670 (referred to supra) it isobserved as follows:- https://hcservices.ecourts.gov.in/hcservices/ “.... The legal position is also that a new chargecan be added only if there are material beforeCourt either in the complaint or in the evidenceto justify such action. For justifying alterationof charge also there should be material either inthe complaint or in the evidence. The learnedSessions Judge held that the question of alteringcharge arises only when the charge is framed andas the offence alleged to be committed ispunishable under S. 138 of the Act (offence istriable as a summons case) no charge need beframed (only particulars of the offence of whichrevision petitioner is accused need be stated tohim) and therefore, no question of framingadditional charge as prayed for by the revisionpetitioner. Even treating the application movedby revision petitioner as one filed under S. 216Cr.P.C. to frame a new charge under S. 420, IPCthere is no material either in the complaint or inevidence to frame such a charge. It may also bepointed out here that application for alterationof the charge should be made immediately after thecharge been read out and explained by Magistrate(See Sohoni's Code of Criminal Procedure, 1973,19th Edn., Vol.3, page 2514). As there is nomaterial to hold that a prima facie case againstthe respondent exists to frame charge against himfor commission of offence punishable under S. 420,IPC, no charge can be framed against therespondent under S. 420, IPC.”(IV) In (2006) 2 M.L.J. (Crl.) 173 (referred to supra) inparagraphs 7 and 8 the Apex Court has observed as follows:-“7. ... The trial court can take such a step toadd such persons as accused only on the basis ofevidence adduced before it and not on the basis ofmaterials available in the charge-sheet or thecase diary, because such materials contained inthe charge sheet or the case diary do notconstitute evidence. ....8. .... The word “evidence” in Section 319contemplates that evidence of witnesses given inthe Court .....”(V) In 2004 CRI. L.J. 920 (referred to supra) in paragraph 13the Apex Court has observed as follows:-“Therefore, we think it appropriate that thefindings in regard to the sufficiency or otherwiseof the material to frame a charge punishable underSection 304 Part II IPC of both the courts belowshould be set aside and it should be left to bedecided by the court trying the offence to alter https://hcservices.ecourts.gov.in/hcservices/ or modify any such charge at an appropriate stagebased on material produced by way of evidence.“6. I have carefully considered the submissions made by thelearned counsel on either side. A close reading of the decisionsrelied upon by the learned counsel on either side makes itabundantly clear that the law governing the trial on criminaloffence provides for alteration of charges at any stage of theproceedings depending upon the evidence adduced in the case. Asobserved by the Apex Court the word “evidence” in Section 319Cr.P.C. contemplates “evidence of witnesses given in the Court”.The trial court can alter or add a charge only on the basis ofevidence adduced before it and not on the basis of any othermaterial which do not constitute evidence. If there is anymaterial either in the complaint or in the evidence adduced duringthe course of trial, it is open to the trial court to frame a newcharge. As per Section 3 of the Evidence Act the word “evidence”would mean the statements made before the Court by the witnessesand documents produced for the inspection of the Court and they arecalled oral evidence and documentary evidence respectively. 7. In the light of the above said principles culled out fromthe various decisions cited supra it has to be considered as towhether any evidence was made available in the course of trialwhich warranted the addition of a charge under Section 420 IPC inthis case. Learned counsel for the petitioner fairly submittedthat except the contentions put forth in the written argumentsfiled by the learned counsel for the respondents under Section 314Cr.P.C, there is no other material, which warrants the addition ofa charge under Section 420 IPC. In the written arguments it iscontended that since the cheque in question was returned with theendorsement “Account transferred to suit filed account” it shouldbe construed that on the date when the cheque was returned by thebank, the accused did not have an account in the bank. The abovesaid contention is a legal contention put forth by the learnedcounsel for the accused and such a legal contention cannot beconsidered as “evidence”. Therefore, on the basis of the abovesaid legal contention a new charge under Section 420 IPC could notbe added.8. As rightly contended by the learned counsel for therespondents, earlier on two occasions the petitioner had approachedthis Court and obtained stay and that has caused delay in thedisposal of the case. This Court, while disposing ofCrl.R.C.No.622 of 2007 has directed the trial court to complete thetrial within a period of two weeks from the date of receipt of acopy of that order and thereafter the petitioner filedCrl.O.P.No.11976 of 2007 for transfer which was ultimately disposedof on 27.04.2007. When the examination of the witnesses wasclosed, oral arguments heard and written arguments have also beenfiled and the case was reserved for judgment, the present petition https://hcservices.ecourts.gov.in/hcservices/ under Section 216 Cr.P.C. has been filed. As rightly pointed outby the trial court this is only an attempt on the part of thecomplainant to further drag on the proceedings.9. The decision reported in 2007-2-L.W. (Cri.) 880 (referredto supra) is not applicable to the facts of this case because inthat case as new facts have been revealed through the evidence ofP.W.2 the complainant filed a petition under Section 216 Cr.P.C. toinclude 420 IPC in the case to proceed against the accused and onlyin such circumstances the trial court altered the charge and whensuch alteration of charge was challenged, the challenge wasrejected on the ground that as new materials came into existencethrough the evidence the complainant is entitled to invoke theprovisions contained in Section 216 Cr.P.C. But as pointed outabove in the case on hand there is no material either in thecomplaint or in the evidence to frame a new charge under Section420 IPC. Therefore, this Court is of the considered view thatthere is no irregularity or illegality in the order passed by theCourt below and as such this Court is not inclined to interferewith the order of the lower Court and accordingly the abovecriminal revision case fails and the same is dismissed.Consequently, the connected MPs are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srkTo1. Judicial Magistrate No.I, Erode.2. Do thro the Chief Judicial Magistrate, Erode.2 ccs to Mr.S. Jayakumar, Advocate, Sr. 652611 cc to Mr.N. Manokaran, Advocate, Sr. 655302 ccs to Mr.S. Jayakumar, Advocate, Sr. 64095Crl. R.C.No.1448 of 2007 andM.P.Nos.1 and 2 of 2007 SGL (CO)kk 2/11