JIALAL SHARMA Vs. MAHADEV PRASAD

JUDGEMENT

(1.) This is a revision petition against the order of Met. Mgte. dt. 30.1.82. The petitioner is the complainant. He filed a complaint against the respondent, Madhavprasad G. Poddar, u/s 409 IPC. It was alleged that the petitioner was interested in buying a boiler. The respondent agreed to act act as a commission agent in the transaction of purchase on the" term that he would charge commission at the rate of 2 per cent from the petitioner. The petitioner paid Rs. 22,000.00 to the respondent as advance money. But the transaction fell through. The respondent informed the petitioner that the seller had sold the boiler to another party. On this the petitioner asked for the return of Rs. 22,000.00. The respondent promised to return the money but did not do inspite of repeated demands. The petitioner's case is that the respondent has dishonestly misapproprited the money and has converted it to his own use and has thus committed an offence u/s 409 IPC.

(2.) The petitioner in support of his case filed letters written by the respondent in which he had admitted the receipt of money and had promised to return it. The petitioner also examined himself in support of the complaint. The learned magistrate dismissed the complaint holding that he did not find any dishonest intention from the letters of the respondent and in any event it was a case of civil liability. From the order ofdismiisal this revision has been preferred.

(3.) The respondent is an agent. He is in a fiduciary capacity. He is bound to account for what he he has received. He admitted the receipt of money in the letters he wrote to the petitioner. He also agreed to it. He asked for time to repay in his letter dt. 23.2.81, but did not do so. A registered notice dt. 16.6.71 was also sent to him calling upon him to pay Rs. 22,000.00. Yet he did not pay. This is what was alleged in the complaint.