The complainant in C.C.No.602 of 2006 on the file of the Judicial Magistrate No.I, Erode, is the petitioner in the above criminal revision case. On the basis of the complaint filed by the petitioner against the respondents herein, the learned Magistrate has taken the complaint on file for an offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.602 of 2006. The cheque in question is alleged to have been returned/ unpaid with an endorsement “Account transferred to suit filed account”. After completion of trial and hearing of arguments was over and when the judgment has been reserved, the petitioner filed a petition in C.M.P.No.1384 of 2007 under Section 216 of the Criminal Procedure Code (in short “Cr.P.C.”) praying to alter / add a charge under Section 420 Indian Penal Code (in short “IPC”) against the respondents herein on the basis of the contentions raised in the written arguments submitted by the learned counsel for the respondents. The respondents herein raised objections for entertaining the said petition contending that there is absolutely no material on record to alter / add the charge for an offence under Section 420 IPC and merely on the basis of legal contentions put forth in the written arguments a new charge cannot be framed. The learned Magistrate after considering the materials on record dismissed the said petition and being aggrieved by that the complainant is before this Court in the above revision.

2. Heard both sides.

3. Mr. N.Manoharan learned counsel for the petitioner submitted that the cheque in question was returned with an endorsement “Account transferred to suit filed account” on 05.04.2004 and it shows that on the date of issuing the cheque the respondents had no account in the bank and therefore they deceitfully issued the cheque to cheat the complainant and hence an offence under Section 420 IPC is made out in the light of the materials available on record. He further submitted that the provisions contained in Section 216 of the Cr.P.C gives wide power to the Court to alter or add any charge at any time before the judgment is pronounced and the written arguments filed by the accused would amply prove the commission of the offence under Section 420 IPC and therefore the order of the learned Magistrate is liable to be set-aside.

4. (i) In support of his above contentions the learned counsel for the petitioner relied upon the decision of the Apex Court reported in (2004) 5 Supreme Court Cases 347 (Hasanbhai Valibhai Qureshi v. State of Gujarat), wherein in paragraph 10 it is observed as follows:-

“10. Therefore, if during trial the trial court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate.”

(ii) Learned counsel for the petitioner also relied on a Full Bench decision of the Andhra Pradesh High Court reported in 2001 CRI. L.J. 1489 (M/s. OPTS Marketing Pvt. Ltd. v. State of A.P.) (FB), wherein in paragraph 29 (ii) it is observed as follows:-

29 (ii) Even after introduction of S. 138 of the Negotiable Instruments Act, prosecution under S. 420, IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplier earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under S. 420, IPC for dishonour of cheques or postdated cheques cannot be quashed under S. 482, Cr.P.C., if the averments in the complaint show that the