BALBIR SINGH Vs. STATE

JUDGEMENT

(1.) This is an application under section 482 Cr. P.C. for setting aside the order of taking cognizance against the petitioner for the offence under section 409 Penal Code by the Munsif and Judicial Magistrate, Suratgarh. by his order dated 30th May, 1981 which has been upheld by the Additional Sessions-Judge, Raisinghnagar vide his order dated 17th April 1982.

(2.) This application has arisen in the following circumstances,

(3.) A charge-sheet was presented by the Police Station, Suratgarh against the accused Nemi Chand for the offence under section 409 I.P.C. The accused Nemichand use to take money in advance for making payment to the labour. He was serving in this manner from 30th Jan. 1973 to 4th Dec., 1975. The prosecution case is that on 9-6-75 he issued an authority letter in favour of Balbir Singh, the present petitioner for obtaining a sum of Rs. 10,000.00which was paid to him and according to the prosecution the amount has been defalcated by the accused Nemichand. The trial proceeded against the accused Nemichand, and statements six witnesses were recorded. The present petitioner was P. W. 6 whose statement was recorded on 7-3-1981. An application was moved on behalf of Nemichand on 23-1-1980 that cognizance be also taken against Balbir Singh and he may not be examined as a witness. However, his statement was recorded and after recording of his statement, the learned Magistrate prima facie found that an offence under section 409 Penal Code has been committed by the witness Balbir Singh. So cognizance for said offence was taken against him. The Magistrate recorded a detailed order as to how he finds a prima facie case against Balbir Singh (PW 6) The present petitioner was unsuccessful before the learned Additional Sessions Judge and so he has moved this application under section 482 Crimial P.C.