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2020 (11) TMI 500 - HC - Indian LawsDishonor of Cheque - alteration of charge invoking the power under Section 216 Cr.P.C. - HELD THAT - It is an admitted fact that the case pending against the petitioner is initiated under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act is usually tried as a Summary Trial or as a Summons Case. In those proceedings there is no question of framing charge. As per Section 251 Cr.P.C. only particulars of the offence will be put to the accused and there is no framing of charge in the summons Trial. Section 216 Cr.P.C. is included in Chapter XVII of the Cr.P.C. That Chapter deals about charge. Section 216 is applicable when a court want to alter or add to any charge at any time before the judgment is pronounced. To attract Section 216 Cr.P.C. a charge is necessary. Then only it can be altered or any other charge can be added. Here is a case where there is no charge. Therefore Section 216 Cr.P.C. is not at all applicable. The petition filed by the petitioner is not legally maintainable - Application dismissed.
Issues:
Challenge to order dismissing application to alter charge and discharge the accused under Sections 216 and 245 Cr.P.C. Analysis: The petitioner filed a Crl.M.C. challenging the order of the Magistrate dismissing the application to alter the charge and discharge him under Sections 216 and 245 Cr.P.C. The petitioner, an accused under Section 138 of the Negotiable Instruments Act, sought to change the charge and be discharged, but the Magistrate rejected the request citing the absence of a charge in proceedings under Section 138. The petitioner contended that Section 216 Cr.P.C. allows for altering the charge and discharge even in cases tried as Summons Cases. The counsel argued that the Magistrate's dismissal was based on a hyper-technical view. However, the court noted that in proceedings under Section 138, there is no charge framed as per Section 251 Cr.P.C., which only requires particulars of the offence to be put to the accused in a Summons Trial. The court further explained that Section 216 Cr.P.C. pertains to altering or adding charges before judgment, requiring the existence of a charge to be altered. Since there was no charge in this case, Section 216 Cr.P.C. was deemed inapplicable. Additionally, the petitioner relied on Section 245 Cr.P.C., which allows for the discharge of an accused in cases not initiated on a Police Report. However, as the petitioner was not facing a warrant trial, Section 245 was not applicable. The court concluded that the petition was not legally maintainable, disagreeing with the legal arguments presented by the petitioner's counsel. Consequently, the Crl.M.C. was dismissed by the court, upholding the Magistrate's decision to reject the application to alter the charge and discharge the accused under Sections 216 and 245 Cr.P.C.
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