G. MALLIESWARY Vs. V. RAMBABU & ANR.

JUDGEMENT

(1.) The petitioner is the accused of C.C.No. 487 of 2015 on the file of XIV Special Magistrate, Hyderabad, and the 1st respondent is the complainant.

(2.) Originally the 1st respondent-complainant filed a private complaint against the accused for the offence under section 138 of Negotiable Instruments Act (for short 'the Act') basing on the cheque return memo and the learned VIII Metropolitan Magistrate, Cyberabad, taken cognizance for the said offence and subsequently due to the amended NI Act, the case came before the learned III Additional Chief Metropolitan Magistrate, Nampally, and later as per the orders of learned Metropolitan Sessions Judge, Hyderabad, the matter was transferred to learned XIV Special Magistrate, Erramanzil, for the purpose of conducting trial. During the course of trial, the complainant examined as PW.1 and during the cross examination of PW.1, the petitioner/accused taken a plea that the cheque under question does not belong to accused and the same was not drawn from the account of accused. Subsequently the petitioner/accused adduced evidence and examined the Bank Manager of Bank of Baroda, Attapur Branch, Ranga Reddy District as RW.1 wherein the RW.1 clearly stated that the cheque in question was not drawn from the account of the accused and the same was from the account of Smt. K. Shanta Kumari. At that stage, the 1st respondent-complainant filed Crl.M.P.No. 1864 of 2016 under Section 216 Cr.P.C., 1973 seeking to alter the charge under section 138 of NI Act to Section 420 IPC and the same was allowed by the learned Special Magistrate on 08.09.2016. Impugning the said order, the petitioner/accused maintained the present quash petition to quash the proceedings.

(3.) The contentions of the learned counsel for the petitioner/accused apart from reiterating the above contentions are that after taking cognizance of the offence under Section 138 of the Act, the Sessions Court has sent the file to learned XIV Special Magistrate to conduct the trial under Section 138 of the Act, thereby the learned Special Magistrate has to confine only to the extent of conducting the trial under Section 138 of the Act, but the Special Courts have no power to alter the charge the offence under Section 138 of the Act to Section 420 IPC, otherwise the entire trial will be vitiated. It is also contended that because of alteration, it is causing prejudice to the accused and also Section 420 IPC is not the original charge and it is also pertinent to mention here that Section 138 of the Act is summary case and Section 420 IPC is warrant case and warrant procedure and the application itself is not maintainable and the same is against the law and thereby sought for quashing of the proceedings by allowing the Criminal Petition.