SHRI DINA NATH Vs. SHRI HANS RAJ ETC.

JUDGEMENT

(1.) This rule in revision has been obtained by Dina Nath against the order dated 26 -2 -1971 of the Additional Sessions Judge, Kangra, wherein he was affirmed the finding of the Judicial Magistrate, First Class, Hamirpur, discharging the accused Hans Raj from the offence under Ss. 406 and 408 of the I.P. Code. The facts giving rise to the petition may briefly be stated.

(2.) Hans Raj accused was employed by Dina Nath Petitioner as salesman in his cloth shop at Hamirpur. He was getting Rs. 125 per month as salary and worked for a period of 11/2 years. According to complainant Dina Nath, he got suspicion that Hans Raj was not keeping -proper accounts and that some money was short which might have been misappropriated by him. Accordingly on 25 -11 -1966 he directed Hans Raj that he would look up the accounts of the shop. On the next day, i.e. on 26 -11 -1966, the accused disappeared and left the keys of shop with his brother, one Bihari Lal. On 28 -11 -1966 Dina Nath checked up the accounts of the shop and found Rs. 4,917.16 short and since he considered that the said amount was misappropriated by Hans Raj, he went to the Police Station to lodge a report. According to complainant, the Police did not care to accept his report and no investigation was made. Thereafter Dina Nath made some complaint to the Judicial Magistrate and at his instance the Police report was instituted and investigation started. After investigation, a police challan was submitted to the Court and it was stated that Hans Raj had misappropriated the amount of Rs. 12,709.13. As the case had started upon a police report under Sec. 251A of the Code of Criminal procedure, the learned Magistrate considered the documents referred to in Sec. 173 and also ascertained other facts and circumstances. He found that no case was made out against the accused and accordingly he was discharged on the two counts, namely, Ss. 406 and 408 of the I.P. Code.

(3.) According to the learned Judicial Magistrate who has written an elaborate order, the dispute was of a civil nature and mens rea could not be deducted against the accused and as such no offence was formulated for which the challan was submitted to the Court. The result was that the accused was discharged. Against the order of discharge, the complainant Dina Nath came in revision before the learned Additional Sessions Judge, but could not succeed. The revision petition was dismissed on the very same grounds as were stated by the learned Judicial Magistrate.