WAHID ALI Vs. ESHWARIAH

JUDGEMENT

(1.) Wahid Ali was convicted of an offence under section 406, Indian Penal Code, by the Additional City Magistrate, Second Division, Hyderabad and the Sessions Judge, Secunderabad, upheld the said conviction and sentence. He has therefore preferred this revision calling in question the correctness and propriety of the order passed by the Sessions Judge.

(2.) The facts are that the complainant Eswarayya entrusted the accused with a sum of Rs. 3,000 on 20th February, 1954, and obtained a receipt from him wherein the petitioner-accused admitted the nature of the entreatment and promised to return the amount when required. Two month thereafter the complainant demanded the return of the same. It is said that the petitioner evaded payment on promises, ultimately denied the receive of the amount itself and called upon the complainant to return the receipt issued by him in his favour. After all his efforts to persuade the accused to return the amount had failed, the complainant got his complaint filed in the Criminal Court, five witnesses were examined on his behalf and three witnesses were examined in defence. The trial Magistrate came to the conclusion that the accused was guilty of the offence under section It Indian Penal Code and sentenced him to pay a fine of Rs. 100 or in default imprisonment of two months. The order was upheld by the Sessions Judge.

(3.) It is argued before me that the dispute between the parties is of a civil nature and the criminal remedy was therefore not proper and hence his conviction must be set aside. The other argument advanced is that immediate after framing the charge the accused was asked whether he would cross-examine any of the witnesses produced by the complainant. The learned counsel argues that this procedure is contrary to the mandatory provisions of Section 256, Criminal Procedure Code and that this by itself should vitiate the whole trial. I do not agree there has been any non-compliance with the provisions of law as would vitiate the whole trial. It appears, after the framing of the charge, the hearing was postponed and during the course of the day Lt case was taken up again and the accused was put that question. I do not think that this procedure constitutes a clear contravention of the provisions of section 256, Criminal Procedure Code. The Magistrate could for reasons to be recorded put the question even immediately after the framing of the charge. He allowed some time to the accused to think over the matter so that he may express his desire with regard to cross-examination. This was sufficient compliance with the provisions. Inasmuch as the accused did exercise his right of cross-examination thereafter on the next day of hearing, it cannot be aid that the accused was in any way prejudiced. The argument advanced is this regard is, in my opinion, void of force.