S NACHIMUTHU Vs. R BALASUBRAMANIAN

JUDGEMENT

(1.) THE petitioner has filed the above Criminal Original Petition to call for the records in C. C. No. 493 of 2004 on the file of the Judicial Magistrate No. I, udumalpet and quash the same.

(2.) THE respondent/complainant's case is that he has filed the C. C. No. 493 of 2004 against the petitioner herein for an alleged offence under Section 138 of negotiable Instrument Act. The complainant has stated that on 19. 05. 2004, the petitioner/accused person had borrowed Rs. 1,85,000/- from the complainant. For the said loan, the accused person issued a cheque bearing No. 180109 dated 19. 06. 2004, drawn on Syndicate Bank, Udumalpet Branch to and in favour of the complainant. The said cheque was presented by the complainant with his bankers namely Karur Vysya Bank, Udumalpet Branch on 19. 06. 2004. The said cheque was returned with a memo with an endorsement, "insufficient Funds in the Account". Thereafter, the complainant sent a legal notice to the accused on 24. 06. 2004 by rpad. The same was received by the accused on 28. 06. 2004. After receipt of the notice, the accused sent a reply notice on 10. 07. 2004. The rejoinder was sent by the complainant's Counsel on 20. 07. 2004. Thereafter, the complainant filed the above case along with six documents and mentioned three witnesses.

(3.) THE Learned Magistrate has taken the case on his file and issued summons to the accused. In the said case, the complainant has been examined as PW1, Branch manager, Syndicate Bank has been examined as PW2, one Bhagyalakshmi, Sister of the accused has been examined as PW3. After recording their evidence, the character of the case has not been covered under Section 138 of the Negotiable instrument Act. Hence, the complainant filed a petition before the said Learned magistrate in C. M. P. No. 4935 of 2007 in C. C. No. 493 of 2004, seeking alteration/addition of charge before the Trial Court before pronouncing the judgment, stating new materials making out offence under Section 420 of IPC, have come to light. Hence, the complainant invoked Section 216 of Crpc. The learned Magistrate allowed the C. M. P. No. 4935 of 2007.