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2007 DIGILAW 1520 (PAT)

Ram Briksh Singh v. State Of Bihar

2007-09-17

J.N.SINGH

body2007
Judgment 1. This application has been filed for quashing of order dated 28.11.2006 passed by the Additional Sessions Judge, Fast Track Court II, Katihar in Cr. Revision No. 18 of 2005 as well as order dated 17.12.2004 passed by Judicial Magistrate 1st Class, Katihar in C.A. Case No. 1073 of 1992. By order dated 17.12.2004 learned Magistrate has allowed the application of the prosecution for framing of additional charge and has framed charges against the petitioner under sections 406 and 420 of the Indian Penal Code in addition to the charge under section 138 of the Negotiable Instruments Act for which petitioner was already facing trial. Against the said order, petitioner preferred revision application which was dismissed by order dated 28.11.2006 as aforesaid. 2. The prosecution case as made out in the complaint, in nutshell, is that the petitioner had approached the complainant for a loan of Rs. 50,000/-which was paid by the complainant to the petitioner. However, said loan amount of Rs. 50,000/- was not returned by the petitioner accused in time in spite of repeated requests by the complainant-opposite party. Upon much insistence, petitioner gave a cheque dated 1.10.1992 of the amount to the complainant. The complainant presented the cheque in the Bank on 28.10.1992. However, the same was returned by the Bank with a report that the accused petitioner had already closed the account on 8.7.1992. Thereafter, the complainant got a notice served on the accused petitioner alleging criminal breach of trust, forgery etc. and then filed the complaint. 3. After filing of the complaint petition, statement of the complainant was recorded on solemn affirmation and the learned Chief Judicial Magistrate, Katihar took cognizance of the offence under section 138 of the Negotiable Instruments Act and the case was transferred to the Court of Judicial Magistrate 1st Class for trial and disposal. 4. During trial, witnesses were examined and thereafter statement of the accused was recorded under section 313 of the Code of Criminal Procedure. Arguments were completed on 18.8.1995 and the case was fixed for judgment. It appears from the order-sheet annexed as Annexures-3 and 4 to the supplementary affidavit that the matter was again heard by the successor Magistrate and was fixed for judgment. It appears that at that stage the complainant filed a petition for altering of charge and for inclusion of Sections 406 and 420 of the Indian Penal Code in the charge. It appears from the order-sheet annexed as Annexures-3 and 4 to the supplementary affidavit that the matter was again heard by the successor Magistrate and was fixed for judgment. It appears that at that stage the complainant filed a petition for altering of charge and for inclusion of Sections 406 and 420 of the Indian Penal Code in the charge. The said petition of the prosecution was allowed by the learned Magistrate on 23.9.1996. Against the said order, petitioner accused moved learned Sessions Judge in Cr. Rev. No. 107 of 1996 which was dismissed by learned Sessions Judge by order dated 21.11.2003. 5. The said orders of the learned Sessions Judge and learned Magistrate were challenged by the accused petitioner in this Court through Cr. Misc. No. 186 of 2004. In the said criminal miscellaneous application petitioner took a stand that the alteration of charge was a belated exercise of power by learned court below and there was no material in support of the same. This Court considered the application of the petitioner and disposed of the same by order dated 21.9.2004, a copy whereof is contained in Annexure-2 to this application. This Court did not entertain the plea of the petitioner that the alteration of charge was belated exercise of power by the learned Magistrate. However, this Court found that the impugned order of the learned Magistrate did not show consideration and application of mind to the materials available on record and therefore remitted the matter back to the trial court for passing appropriate order in the matter afresh. 6. Thus, pursuant to the earlier order of this Court, matter came up again before the trial court for consideration. The trial court considered the matter, heard the parties, examined the records of the case and the statements of the witnesses recorded during trial and came to the conclusion that sufficient materials had come up during trial for framing of charges under sections 406 and 420 of the Indian Penal Code against the petitioner accused. Hence, by the impugned order dated 17.12.2004 learned trial court allowed the application of the prosecution once again and ordered for framing of charge against the accused petitioner under sections 406 and 420 of the Indian Penal Code. As aforesaid, said order was assailed by the petitioner accused in Cr. Rev. Hence, by the impugned order dated 17.12.2004 learned trial court allowed the application of the prosecution once again and ordered for framing of charge against the accused petitioner under sections 406 and 420 of the Indian Penal Code. As aforesaid, said order was assailed by the petitioner accused in Cr. Rev. No. 18 of 2005, which was, however, dismissed by a reasoned order by the Additional Sessions Judge-cum-Fast Track Court II, Katihar by impugned order dated 28.11.2006. 7. Learned counsel for the petitioner has submitted that the trial of the accused petitioner was concluded and twice the same was fixed for judgment. However, before judgment could be pronounced, prosecution filed a petition under section 216 of the Code of Criminal Procedure for altering of charge which was belated one. Learned counsel for the petitioner further submitted that no new material had come up before the court justifying alteration of charge and therefore the order of the learned Magistrate altering the charge was an erroneous exercise of jurisdiction. Consequently, the revisional court has also failed to appreciate the legal position and has failed to exercise his jurisdictions judiciously. 8. I have perused the impugned orders of the learned Magistrate as well as learned Additional Sessions Judge passed in Cr. Rev. No. 18 of 2005 filed by the petitioner. Both the courts below have duly considered the case of the prosecution materials collected during trial and have come to the conclusion that there are sufficient materials for framing of charge under sections 406 and 420 of the Indian Penal Code against the accused petitioner The fact that the petitioner had issued a cheque in favour of the complainant on 1.10.1992 when he had already closed his account on 8.7.1992, i.e. almost three months prior to issue of cheque amply demonstrates that there was a criminal intent or breach of trust on the part of the petitioner accused and intention to cheat the complainant-opposite party. A bare reading of Section 216 of the Code of Criminal Procedure amply demonstrates that the law empowers the court to alter or add charge at any time before judgment is pronounced in the case. Therefore, the submission on behalf of the petitioner that alteration of charge was belated one does not have legs to stand. A bare reading of Section 216 of the Code of Criminal Procedure amply demonstrates that the law empowers the court to alter or add charge at any time before judgment is pronounced in the case. Therefore, the submission on behalf of the petitioner that alteration of charge was belated one does not have legs to stand. The said plea of the petitioner was also not entertained by this Court earlier when the petitioner had moved against framing of charge by the trial court. This Court had only remitted the matter back as earlier order of the trial court did not show consideration of materials while passing the order of altering of charge and application of mind to the same by the trial court. Now, the present impugned order clearly demonstrates that the court below has applied its mind to the materials available and collected during trial. From the facts of the case it is apparent that on the same set of facts the trial court has allowed the application of the prosecution under section 216 of the Code of Criminal Procedure and no new fact or plea has been introduced by the prosecution for the same. Thus, it is apparent that no prejudice is caused to the petitioner accused by the order of altering of charge by the trial court. Therefore, I do not find any infirmity in the impugned order dated 17.12.2004 passed by the learned Magistrate. Consequently, I also do not find any infirmity in the order dated 28.11.2006 passed by the revisional court. 9. In the result, I do not find any merit in this application and the same is accordingly dismissed. However, as the matter is old one, I direct the trial court to proceed with the case on day to day basis and conclude the same preferably within a period of three months.