2. The legality, propriety and correctness of the order passed by the 2nd Additional Sessions Judge, Ernakulam in Crl. R.P. No. 68/95 setting aside the order passed by the learned Judicial 1st Class Magistrate-1, Kochi in Crl. M.P. No. 5288/95 in S.T. No. 935/94 is under challenge in this revision.
3. The basic facts necessary for appreciating the contention raised by the learned counsel for the revision petitioner challenging the impugned order are to be stated here. The complaint petition was filed by the revision petitioner against the 1st respondent alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, as amended (for short, the Act') and the allegation made therein was that the 1st respondent borrowed from him Rs. 70,000/- and issued cheque dated 14-4-1994 in discharge of that debt or liability. It was further alleged in the complaint that that cheque, when presented for collection, was returned as unpaid by the drawee bank with the endorsement 'account closed'. It was further alleged in the complaint that on receipt of information regarding bouncing back of the cheque, notice in terms of the proviso to Section 138 of the Act was sent and that debt was not discharged by the 1st respondent within 15 days of receipt of that notice. Learned Magistrate took cognizance of the offence under Section 138 of the Act and issued process. Trial commenced and complainant was examined. When the Branch Manager of the drawee bank was examined it was disclosed or revealed that account was closed before the issuance of the cheque in question. It was at that stage the revision petitioner moved a petition before the trial Court under Section 216(1), Cr.P.C. to alter the charge to one under Section 420, IPC and the trial Magistrate allowed that application.
4. Learned counsel for the revision petitioner fairly submitted before me that in the complaint filed by the revision petitioner, the factual foundation necessary to constitute an offence punishable under Section 420, IPC has not been laid and counsel has not argued before me that the material on record would justfy the addition or alteration of charges.
5. Against the order passed by the learned Magistrate, the respondent took up the matter in revision before the Sessions Court, Ernakulam and the learned Sessions Judge set aside the order assailed before him and directed the learned Magistrate to proceed with the trial of the case for the offence alleged to have been committed under Section 138 of the Act.
6. The learned counsel for the revision petitioner has not brought to my notice any illegality or irregularity committed by the learned Sessions Judge in setting aside the order passed by the learned Magistrate. As pointed out by me earlier, the learned counsel fairly submitted before me that from the facts alleged in the complaint filed by the revision petitioner, it is not possible even prima facie to hold that any offence was committed by the respondent punishable under Section 420, IPC. No doubt, the legal position is that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complaint should state in so many words, that the intention of the accused was dishonest or fraudulent. Rajesh Bajaj v. State of Delhi 1999 SCC (Cri) 401 : 1999 Cri LJ 1833. Court is to frame a charge if there is ground for presuming that the accused has committed the offence i.e. prima facie case against him exists. Section 216, Cr.P.C. reads thus :
216. Court may alter charge :-
(1) Any Court may alter or add to any charge at any time before Judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in this defence or the prosecutor in the conduct of the case, the Court may in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Meaning of adding to any charge is addition of a new charge and meaning of alteration of a charge is changing or variation of an existing charge. Under Section 216, Cr.P.C. addition to and alteration of a charge or charges implies one or more existing charge or charges (See Sohan Lal v. State of Rajasthan 1990 SCC (Cri) 650 : 1990 Cri LJ 2302. The legal position is also that a new charge can be added only if there are material before Court either in the complaint or in the evidence to justify such action. For justifying alteration of charge also there should be material either in the complaint or in the evidence. The learned sessions Judge held that the question of altering charge arises only when the charge is framed and as the offence alleged to be committed is punishable under Section 138 of the Act (offence is triable as a summons case) no charge need be framed (only particulars of the offence of which revision petitioner is accused need be stated to him) and therefore, no question of framing additional charge as prayed for by the revision petitioner. Even treating the application moved by revision petitioner as one filed under Section 216, Cr.P.C. to frame a new charge under Section 420, IPC there is no material either in the complaint or in evidence to frame such a charge. It may also be pointed out here that application for alteration of the charge should be made immediately after the charge been read out and explained by Magistrate (See Sohoni's Code of Criminal Procedure 1973 19th Edn., Vol. 3, page 2514). As there is no material to hold that a prima facie case against the respondent exists to frame charge against him for commission of offence punishable under Section 420, IPC, no charge can be framed against the respondent under Section 420, IPC. No illegality or irregularity has been committed by the learned Sessions Judge in upsetting the order passed by the Magistrate and I find no ground to admit this revision.
Accordingly, this revision is not admitted and hence dismissed.