CHARANJEET SINGH SIAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BEING aggrieved by the order passed by the Sessions Judge, Nagpur, in. a criminal revision application dismissing his application, the original complainant has coma hero in revision, A complaint was filed by him against the non -applicant under Sections 403 and 406 of the Indian Penal Code. His complaint is that he was a duly constituted attorney of a partnership firm M/s. Sial Ghogri Group with its head office at Nagpur. This firm runs a colliery within the district of Chhindwara in Madhya Pradesh. The non -applicant was the general manager and later on was a duly constituted attorney of the said firm. He was, therefore, representing the firm in all its affairs. The grievance of the complainant is that the non -applicant received a bearer cheque for a sum of Rs. 25,000 issued by M/s. S.D. Sethia and Company, Private, Ltd., Bombay, in the name of the firm Sial Ghogri Group. The non -applicant is said to have cashed that cheque at Bombay but did not credit it in the account of the firm. According to the complainant, ho had misappropriated this sum by using it for himself. Ho has again another grievance that the non -applicant had cash in hand of Rs. 30,881.12. According to him, the non -applicant had also committed broach of trust of this sum. The case was registered after his complaint in the Court of the Judicial Magistrate, First Class, Nagpur, and some witnesses were cited. These witnesses were from Bombay. According to the complainant, he had cited these witnesses for the purpose of establishing that a sum of Rs. 25,000 by cheque was received by the non -applicant, and that the said cheque was encashed by him and that the cash was retained by him. He also wanted to establish his case in so far as the other sum of Rs. 30,881.12 is concerned by examining other witnesses from Bombay, who were maintaining account books there in the firm. The complainant, therefore, prayed for an order of commission. The learned Magistrate is of the view that until he was convinced, by recording the evidence of the complainant that there was a prima facie case against the non -applicant, he will not be able to summon witnesses from Bombay. According to him, at that stage, there was no necessity for him to issue a commission for examining witnesses from Bombay. Therefore, that application was rejected.

(2.) THE complainant, thereupon, filed a revision to the Court of Session, Nagpur. The learned Sessions Judge rejected the application. Therefore, the complainant has come here in revision. The only point, therefore, that arises here for consideration is to see whether the order passed by the learned Sessions Judge, confirming the order of the trial Court that the complainant should first be examined and that after he was convinced that there was a prima facie case against the non -applicant, a commission would be issued for the Bombay witnesses, is legal and proper.

(3.) THEREFORE , the plain moaning of the words used in Section 252, Criminal Procedure Code shows that there need not be any examination of the complainant. The hearing of the' complainant does not, necessarily, mean his examination and his giving evidence. It may at the most perhaps mean a granting of audience. This conclusion is also supported by the language used in the next Section 253, Criminal Procedure Code. Under Section 253, 'if, upon, taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.' Therefore, the Magistrate can discharge him if there is no case against the accused upon taking all the evidence referred to in Section 252, Criminal Procedure Code. Now, we have seen that under Section 252, Criminal Procedure Code, the Magistrate need not proceed to take the evidence of the complainant but shall proceed to take such evidence as may be produced by the complainant in support of his case. Therefore, oven after construing the language used in Section 253, Criminal Procedure Code, we have no other alternative but to come to the conclusion that the Legislature never intended that the Magistrate shall also take the evidence of the complainant.