RAM NAGINA ROY Vs. MOHABIR KANU

JUDGEMENT

(1.) This revision petition has arisen against the order dated 14-10-88 passed by learned Judicial Magistrate, Ist Class, Silchar in Complaint Case No. 2302C of 1987 allowing the prosecution to recall witness/evidence for addition of S. 420, IPC as charge, after completion of evidence.

(2.) The complainant opposite party took a loan of Rs. 4000.00 from the accused persons in the month of Baishak. 1391 BS by signing on three Revenue Stamps affixed on a blank sheet of paper in presence of witnesses and handed over possession of a plot of paddy land measuring one Kedar as interest. The complainant, as claimed, returned the full amount in the month of Falguna, 1393 BS in presence of witnesses but when the complainant asked the petitioner No. 1 to return the signed blank sheets the petitioner No. 1 told that his son, petitioner No. 2 had gone to UP and the relevant papers would be returned only after his return from U.P. That the accused petitioner No. 1 delivered possession of the paddy land to the complainant after the said sum of money. In the meantime petitioner No. 1 asked the opposite party complainant to give him a sum of Rs. 10,000.00 on assurance of giving employment to the son of the complainant in Assam. Accordingly complainant opposite party gave him Rs. 5000.00 in advance. But after the expiry of 5/6 months the assurance was not complied with nor the money was returned. While the son of the petitioner No. 1 returned from U.P. the complainant demanded return of the said sun of Rs. 5000.00 and the Revenue stamp fixed blank papers, the accused persons refused to do so and assaulted the complainant. It is further alleged in the complaint that the witnesses saved his life and after the occurrence he filed the FIR in Sonai Police Station and the case was registered. Admittedly the petitioners were charged u/S. 323/34, IPC and the evidence was closed and the matter was ready for judgment. The complainant opposite party filed an application on 1-8-88 u/S. 260, Cr. P.C. praying for addition of charge u/S. 420, IPC. The defence (present petitioners) filed objection on 9-9-1988 contending that it would be prejudicial to them as the matter was sub judice in issue in a civil suit between the parties. By the impugned order dated 14-10-1988 the prayer for addition of charge was allowed and further the complainant was allowed to lead further evidence and to adduce witness to substantiate the subsequent charge. Against this the present revision petition has been preferred.

(3.) Mr. Sahewalla, learned counsel for the revision petitioner submits that the impugned order was passed by the learned Court below without jurisdiction. That during the trial the complainant examined himself and other witnesses who were also cross-examined by defence and the evidence led by the prosecution did not disclose any offence under S. 420, IPC and the complaint itself did not disclose any offence under the said Section. It is further alleged that while the impugned order was passed the learned trial Court was not satisfied on any material on record and that sufficient opportunity was not given to the petitioner to represent his case against the impugned application and therefore he was prejudiced. It is also the case of the revision petitioner that at the time of framing charge no charge as such was framed being satisfied that there is ingredient u/S. 420, IPC and finding of prima facie case u/S. 323/34, IPC, charge was accordingly framed and trial proceeded.