N ANBARASU Vs. M GANESAN

JUDGEMENT

(1.) A private complaint in C.C.No.467 of 2003 was taken on file by the learned Judicial Magistrate III, Erode for an offence punishable under Section 138 of the Negotiable Instruments Act

(2.) THE petitioner, A-2 along with his father were accused in the case. THE case of the complainant is that a cheque for Rs.4 lakhs has been issued signed by both the accused and on deposit it was dishonoured, resulting in the filing of the private complaint. Pending proceedings, the first accused died. THE complainant has been examined as P.W.1. THE bank manager has been examined as P.W.2. P.W.2 during the course of his evidence, disclosed that the accounts stand in the name of the father of the petitioner (A-1) and the petitioner is not a joint holder of the account. In such circumstances, as new facts have been revealed through the evidence of P.W.2, the complainant/respondent filed a petition under Section 216 Cr.P.C to include Section 420 IPC in the case to proceed against the petitioner. After hearing the petitioner, the learned Magistrate passed an order impugned, which is the subject matter in the present revision.

(3.) IN such circumstances, during the course of trial of a summons case, when new materials came into existence through the evidence, the complainant is entitled to invoke the provisions of Section 216 Cr.P.C. The learned Magistrate has specifically observed that the complainant is "directed to adduce further evidence regarding Section 420 Cr.P.C". Summons case procedure has been adopted, since the offence alleged is under Section 138 of the Negotiable INstruments Act. After filing of the additional materials if any from the side of the complainant, an opportunity will be given to the accused even before framing of the charges. Thereafter the procedure which may have to be followed in a trial of warrant case will be adopted. The apprehension entertained by the petitioner is unsustainable. The petitioner may agitate his defence at the appropriate time. IN such circumstances prejudice may not be caused. Therefore, I do not find any merit in the petition. Hence, the petition is dismissed. Consequently, connected MPs are closed.