T.M. Hassan Pillai, J.

Heard.

2. The legality, propriety and correctness of the order passed by the 2nd Additional Sessions Judge, Ernakulam in Crl.R.P. No. 68/95 setting aside the order passed by the learned Judicial 1st class Magistrate-1, Kochi in Crl.M.P. No. 5288/95 in S.T. No. 935/94 is under challenge in this revision.

3. The basic facts necessary for appreciating the contention raised by the learned counsel for the revision petitioner challenging the impugned order are to be stated here. The complaint petition was filed by the revision petitioner against the 1st respondent alleging commission of an offence punishable under Section 138 of the Negotiable Instrument Act, 1881, as amended (for short, the Act,’ ) and the allegation made therein was that the 1st respondent borrowed from him Rs.70,000/- and issued cheques dated 14-4-1994 in discharge of that debt or liability. It was further alleged in the compliant that that cheque, when presented for collection, was returned as unpaid by the drawee bank with the endorsement 'account closed'. It was further alleged in the complaint that on receipt of information regarding bouncing back of the cheque, notice in terms of the proviso to Section 138 of the Act was sent and that debt was not discharged by the 1st respondent within 15 days of receipt of that notice. Learned Magistrate took cognizance of the offence under section 138 of the Act and issued process. Trail commenced and complainant was examined. When the branch manager of the drawee bank was examined. it was disclosed or revealed that accounts was closed before the issuance of the cheques in question. It was at that stage the revision petitioner moved a petition before the trail court under Section 216 (1) Cr.P.C. to alter the charge to one under Section 420 IPC and the trial magistrate allowed that application.

4. Learned Counsel for the revision petitioner fairly submitted before me that in the complaint filled by the revision petitioner, the factual foundation necessary to constitute and offence punishable under Section 420 IPC has not been laid and counsel has not argued before me that the materials on record would justify the addition or alteration of charges.

5. Against the order passed by the learned Magistrate, the respondent took up the matter in revision before the Sections Court, Ernakulam and the learned Sessions Judge set aside the order assailed before him and directed the learned Magistrate to proceed with the trail of the case for the offence alleged to have been committed under Section 138 of the Act.

6. The learned Counsel for the revision petitioner has not brought to my notice any illegality or irregularity committed by the learned Sessions Judge in setting aside the order passed by the learned Magistrate. As pointed out by me earlier, the learned Counsel fairly submitted before me that from the facts alleged in the complaint filed by the revision petitioner, it is not possible even prima facie to hold that any offence was committed by the respondent punishable under Section 420 IPC. No doubt, the legal position is that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complaint should state in so many words, that the intention of the accused was dishonest or fraudulent. (Rajesh Bajaj v. State of Delhi & Others; 1999 S.C.C. (Cri) 401). Court is to frame a charge if there is ground for presuming that the accused has committed the offence i.e. prima facie case against him exists. Section 216 Cr.P.C. reads thus:

"216.Court may alter charge:-

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trail is not likely, in the opinion of the Court, to prejudice the accused in t