JIALAL SHARMA Vs. STATE

JUDGEMENT

(1.) This is the revision directed against the order of the Metropolican Magistrate dated January 30, 1982. The petitioner, Jia Lal Sharma, ax the complaint. He filed a complaint against the respondent, Madhavprasad G. Poddar, under section 409 IPC. It was alleged that the petitioner was interested in buying a boiler. The respondent agreed to 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 so inspite of repeated demands. The petitioner's case is that the respondent has dishonestly misappropriated the money and has converted it to his own use and has thus committed an offence under lection 409 Indian Penal Code .

(2.) The petitioner in support of his case filed letters written by the respondent in Much 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 and dishonest intention from the letters of the respondent and in any event it was a case of civil liability. From the order of dismissal this revision has been preferrfd.

(3.) The respondent is an agent. He is in a fiduciary capacity. He is bound to account for what he has received. He admitted the receipt of money in the letters he wrote to the petitioner. He also agreed to pay it. He asked for time to repay in his letter dated February 23, 1981 but did not do so. A registered notice dated June 16, 1971 was also sent of him calling upon him to pay Rs. 22,000.00 . Yet he did not pay. Thil is what was alleged in the complaint.