SWAMINATHAN Vs. INDIRA FINANCE

JUDGEMENT

(1.) This is a petition filed by the accused in C.C. 1253/1999 on the file of the Additional Chief Judicial Magistrate's Court (Economic Offence), Ernakulam seeking to quash Annexure-A5 order passed by the Magistrate on 11.7.2002 on C.M.P. 3643/02 in C.C. No. 1253/1999 aforesaid and to dismiss C.M.P. No. 3643/02 whereby the first respondent/complainant in the case sought to get the charge amended to one under Section 420 I.P.C. in the place of offence alleged under Section 138 of the Negotiable Instruments Act. Annexure-3 is photocopy of C.M.P. No. 3643/2002 and Annexure-5 is copy of order passed by the Additional-Chief Judicial Magistrate thereon which is sought to be got quashed.

(2.) The complainant sought for amendment of charge to one under Section 420 I.P.C on the ground that the accused was issuing Ext.P3 cheque in the case on 22.8.1997 in an account which was closed as early as in 1995 and was thus cheating the complainant. The evidence of PW2, the Managing Partner of the complainant firm was that the accused obtained loan of Rs. 50,000/- from the complainant firm executing a promissory note and a Hire Purchase Agreement and when they demanded for return of amount the accused has issued Ext P3 cheque after getting back the promissory note insisting that he would give the cheque only if the promissory note and other documents were returned to him. According to PW2, Ext.P3 cheque so issued is one drawn on an account which has already been closed and thus the accused cheated the complainant.

(3.) Despite service of notice to the first respondent, he has chosen to remain ex parte and no one has entered appearance for the first respondent. Counsel for the petitioner submited before me for perusal of the deposition of PW1, the Power of Attorney holder of the complainant firm. It is seen that PW1 has stated in cross-examination that the complainant firm is not having any other cheque of the accused. If at all Ext.P3 cheque alone was the cheque of the accused in the possession of the complainant firm that could only be a cheque issued before closing of the account in 1995 as the loan account with the complainant firm was Account No. 1 dt. 22-9-1994 as evidenced by Annexure-6 notice issued by the complainant to the petitioner/accused under registered post with acknowledgment due and it is seen from Annexure-6 that the complainant demanded the accused to pay up an amount of Rs. 51,630/- before 22-3-1995 and clear all the dues failing which they would be presenting the cheque and would proceed legally against him. This shows that the cheque in their possession was one issued at the time of advancement of loan amount in 1994 and not one issued after closing of the account in the year 1995. If that be so, there is no justification in allowing amendment of charge as has been done vide Annexure-A5 order.