SITAKANT GOVIND BHOBE Vs. JOAO XAVIER MIRANDA

JUDGEMENT

(1.) Sitakant Govind Bhobe, the petitioner herein was accused of having committed an offence under Section 420 of the Indian penal Code. The case of the original complainant, who is the first respondent before me is that the accused gave a contract for construction of a road to the complainant; after the road was constructed the accused was avoiding the settlement of accounts; eventually accounts were settled in May 23, 1972 and it was found that the accused had to pay to the complainant a sum of Rs. 2370.94; the accused gave on the same day a cheque on the Central Bank of India for the amount due to the complainant and the complainant passed a receipt for the payment of the amount; the cheque was dishonoured; the complainant therefore filed a complaint before the Judicial Magistrate, First Class, Mapusa under Section 420 of the I.P.C. The case of the defence was that the complainant presented him with false accounts and made the accused part with Rs. 87.80 in excess of the amount due. According to the accused, the complainant did not deduct from the amount due by the accused to the complainant the amount that the complainant owed to the accused because of penalty for delayed completion of the work, totalling Rs. 1,445/-. The accused states that since the cheque was passed for an excess amount, he advised his bankers not to honour the cheque.

(2.) On these facts which appear from the records of the trial Court, the learned J.M.F.C. discharged the accused in exercise of the powers conferred upon him under Section 253(1) of the Criminal Procedure Code 1898, and it seems to me that he was right in doing so.

(3.) The first attack made by Shri Kolwalkar against the judgment of the learned Sessions Judge, Panaji which set aside the order of the Learned Magistrate is that the learned Sessions Judge had no jurisdiction to order the learned Magistrate to frame a charge and try the accused. Section 398, Criminal Procedure Code which is the only section which could possibly be invoked by the learned Sessions Judge empowers him to direct the Magistrate to make further inquiry into the case of any person accused of an offence who has been discharged in a complaint which has been dismissed. This point of law is elementary and it appears that the learned Sessions Judge did not take the care of looking up the law before he proceeded to pass the order.