IMPORTANT POINT
The main legal point established in the judgment is the application of Section 216 of the Cr.P.C. and the court's power to alter or add charges at any time before the judgment is pronounced, ensuring that the alteration or addition of a charge must be for an offence made out by the evidence recorded during the trial.

JUDGMENT :

M.S. KARNIK, J.

1. Heard learned counsel for the petitioners, learned counsel for respondent No. 1-CBI and learned APP for State.

2. The order under challenge is dated 17.02.2023 passed by the Special Court for CBI at Greater Bombay thereby framing an additional charge for the offence punishable under Sections 467 read with 120-B of the Indian Penal Code, 1860 (hereafter ‘the IPC’ for short) in view of Section 216 of the Code of Criminal Procedure, 1973 (hereafter ‘Cr.P.C.’ for short).

3. The respondent No. 1-CBI registered a case vide RC No. 02/E/2013-Mumbai under Sections 120-B read with 420, 406, 409, 465, 467, 468, 471 of the IPC and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, (for short “PC Act”), on the basis of the complaint dated 29.01.2013 of Shri K. Rajaraman, Deputy Zonal Manager, Bank of India, Mumbai North Zone, alleging that Shri Nikhil Girish Patt (A-1), Proprietor M/s. Madhav Enterprises; Shri Chandrakant Rajiv Desai (A-2), Proprietor M/s. Parmar Trading Corporation; Shri Samir Natwarlal Shah (A-3), Proprietor M/s. Siddhi Graphics; Shri Himanshu Rajendra Bhatt (A-4); Shri Ailesh Nemishchandra Shah (A-5) & Shri Damodar R. Kamath (A-6), the then Senior Manager (Credit), Vijaya Bank, Barakhamba Road Branch, New Delhi, cheated the Bank of India, Vile Parle (East) branch by submitting false Letter of Credits (‘LCs’ for short) purportedly issued by the Vijaya Bank, Barakhamba Road Branch, New Delhi and thereby caused loss of Rs. 10,18,02,184/-. On completion of the investigation, a charge-sheet was laid before the Special Judge for CBI cases at Mumbai on 23.11.2023 against the accused. A Special Case No. 109 of 2013 was assigned to the instant charge-sheet. On 05.04.2016 the trial Court framed the charges vide Exhibit 112 against the accused persons viz. accused Nos. 1 to 7 under Sections 120-B read with 420, 468, 471 of the IPC and Sections 13(1)(d) read with 13(2) of the PC Act. The trial proceeded and presently the matter is posted for cross-examination of the Investigating Officer. Respondent No. 1-CBI has already examined 11 witnesses.

4. On 07.02.2023, the respondent No. 1-CBI placed an application under Section 216 of the Cr.P.C. for seeking alteration of the charges levelled against the accused persons under Sections 120-B read with 467 of the IPC with a specific prayer made before the Special Court that inadvertently the charges for the offence of aggravated form of forgery could not be framed by Special Court, though the charge vide Exhibit 112 is very well self explanatory to show the ingredients of the said offence. It was therefore prayed that as the offence of forgery of valuable security has been committed by the accused persons, but as the same has not been inserted into the charge, this will lead to failure of justice.

5. On 17.02.2023 the petitioners filed a detailed counter to the application. By the impugned order dated 17.02.2023 the application is allowed. Hence, this writ petition is filed under Section 482 of the Cr.P.C. and under Article 227 of the Constitution of India challenging the impugned order.

6. Dr. Warunjikar submitted that the impugned order causes serious prejudice to the petitioners, for as many as 11 witnesses are already examined and now the Investigating Officer is under cross-examination. It is submitted that the application is made at the fag end of the trial. It is further submitted that the petitioners are facing prosecution for more than ten years and the delay in concluding the trial is prejudicial to the petitioners. He submits that the trial Court ought not to have entertained the application at such a belated stage. It is further submitted that the petitioners have opened up their defence and hence it would prejudice their defence if the petitioners are to again proceed with the trial on the basis of the altered charge. Dr. Warunjikar relied upon the decision of the Supreme Court in P. Kartikalakshmi vs. Sri Ganesh and Another, (20