Patna High Court
Markandey Rai vs Sheo Kumar Thakur And Anr. on 2 August, 1960
Equivalent citations: AIR1961PAT120, 1961CRILJ417, AIR 1961 PATNA 120, 1960 BLJR 614
ORDER R.K. Choudhary, J.
1. This case has a chequered history. On the 14th of October, 1957, the petitioned Markandey Rai, as a member of the Managing Committee of the Bhumihar Brahmin High English School, Buxar, filed a petition of complaint, as being authorised by the President of the said Managing Committee, before the District Magistrate of Shahabad against the two opposite parties, namely, Sheokumar Thakur, opposite party No. 1, who was the Headmaster of that school, and Rajaram Arya, opposite party No. 2, who was a nominated member of the Managing Committee of that school, for criminal breach of trust as well as for forgery.
According to the prosecution, the Headmaster was a man of influence at Buxar, and so the petition of complaint, instead of being filed before the Subdivisional Magistrate, Buxar, was filed before the District Magistrate of Shahabad. The complainant was examined on solemn affirmation on the 1st of November, 1957, and as, in the opinion of the District Magistrate, the complaint required proper investigation, he directed the Superintendent of Police, Shahabad, to have the complaint investigated by the police. The complainant at once filed a petition objecting to the investigation being made by the police, but the learned District Magistrate rejected that petition.
On the 10th of December, 1957, however, the complainant again filed a petition before the District Magistrate for withdrawing the investigation from the police, but the District Magistrate again rejected the same. The Deputy Superintendent of Police, who was directed by the Superintendent of Police to make the investigation, did not do any-thing in the matter, and reported that, as the complaint disclosed cognizable offence, the complainant should be directed to lodge a first information report in the police station, and then alone the case could he investigated by the police.
The Superintendent of Police endorsed the report of the Deputy Superintendent of Police, and it was put up before the District Magistrate on the 11th of February, 1958, who directed the Superintendent of Police to take action, as suggested by him, for the institution of a case for investigation by the police. Against the above order, the complainant moved the Sessions Judge of Shahabad, who, on the 20th of March 1958, directed further inquiry to be made by the District Magistrate himself.
The District Magistrate, however, refused to follow the direction of the Sessions Judge, and referred back the matter again to the Superintendent of Police to take action as suggested by the Deputy Superintendent of Police, as stated above. The complainant again moved the Sessions Judge of Shahabad, but his application was summarily dismissed by him on the 18th of April, 1958. Against the above order of the Sessions Judge, an application was filed in this Court, which was numbered as Criminal Miscellaneous No. 129 of 1958, and this Court directed further inquiry to be made by the Additional District Magistrate of Shahabad, and also started a proceeding for contempt of Court against the District Magistrate for disobeying the orders of the Sessions Judge.
The contempt proceeding, however, was dropped on submission of an unqualified apology by the District Magistrate. The case was, however, transferred by the District Magistrate on the 14th of August, 1958 to the Additional District Magistrate for further inquiry into the complaint. The Additional District Magistrate inquired into the matter, and, during the inquiry stage, examined witnesses produced on behalf of the complainant, who were also cross-examined by putting questions as suggested by the defence lawyer. He also examined one witness as a Court witness. Several documents were marked as exhibits on behalf of the complainant as well as on behalf of the defence.
According to the case of the complainant, the documents produced on behalf of the defence were produced in the absence of the complainant, and he had no opportunity to meet the same. The Additional District Magistrate also gathered information with regard to certain matter relevant to the case from the Secretary, Board of Secondary School Examination without the information of the complainant. Thereafter, arguments on behalf of both parties were heard by the Additional District Magistrate.
He, then, made a long report against the truth of the case of the complainant, and, ultimately, dismissed the complaint petition under Section 203 of the Code of Criminal Procedure on the 3rd of April, 1959. The complainant moved the Sessions Judge of Shahabad for making a reference to this Court, but his revision application was dismissed by that Court on the 10th of November, 1959. The complainant, being thus aggrieved, has presented this application in this Court against the order of dismissal of his complaint petition.
2. A good deal of argument has been advanced before me by Counsel for the parties as to the scope of inquiry under Section 202 of the Code of Criminal Procedure. Sub-section (1) of that section reads as follows;
"Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or. if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other persons as he thinks fit, for the purpose of ascertaining the truth or falsehood; of the complaint."
It is under this provision that the Additional District Magistrate made inquiry as regards the truth or falsehood of the allegations made in the complaint petition. In making that inquiry, as already observed, he examined witnesses of the complainant, permitted them to be cross-examined, took defence evidence, examined a Court witness and gathered certain information from other sources in order to ascertain the truth or falsehood of the allegations. He, then, reported, as already observed, against the truth of the allegations made in the complaint petition.
But in making the report, he practically wrote out a well-considered judgment of acquittal as should have been written by a Court at the trial. The contention raised on behalf of the petitioner is that the Additional District Magistrate erred in law in allowing the prosecution witnesses to be cross-examined or in taking defence evidence or in gathering information from other sources. It is submitted that the jurisdiction of the inquiring officer under Section 202 of the Code of Criminal Procedure is only to find out from the evidence adduced on behalf of the prosecution if a prima facie case has been made out or not.
It is, according to the petitioner, none of his business to convert the inquiry into a full-dress trial and to write out a judgment of acquittal. On the other hand, it has been contended on behalf of the opposite parties that the officer entrusted with the inquiry into the truth or falsehood of the complaint petition, as required by Section 202, has got a wide discretion to find out the truth or falsehood of the allegations in the complaint petition in any manner he may think proper and for that purpose, he is perfectly entitled to question the proposed accused or to take evidence adduced on his behalf.
It is further submitted that the section itself provides for the inquiry to be made only to ascertain the truth or faleshood of the complaint, and, therefore, the inquiring officer must be deemed to have full jurisdiction to gather evidence as to the truth or falsehood of the complaint so that the proposed accused may not be unnecessarily harassed by being put on trial on evidence which cannot lead to conviction.
3. Various authorities have been cited on behalf of both parties in support of their respective contentions. Reliance has been placed on behalf of the petitioner on an unreported decision of this Court in Basant Rani Mishrain v. Emperor, Criminal Revn. No. 1215 of 1943 D/- 26-1-1944 (Pat); Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125: Anil Kumar Saha v. Pranada Chakrabarty, AIR 1958 Cal 146; and Nga Tha Tu v. Emperor, 11 Ind Cas 249 (UB), and on behalf of the opposite parties on Ramanand Lal v. Ali Hassan, AIR 1924 Pat 797; Mahabir Baitha v. Emperor, AIR 1931 Pat 302; Jinilal Mandal v. Chanderdeo Prasad, AIR 1941 Pat 419; Ram Ekbal Singh v. Ramkhelawan, 1954 BLJR 351; Appa Rao Mudaliar v. Janakiammal, AIR 1927 Mad 19 (FB) and Manindar Nath v. Anil Chandra, AIR 1953 Cal 689.
4. I will first deal with the decisions of this Court. The earliest decision of this Court that has been cited before me is the case of Ramanand Lal, AIR 1924 Pat 797. In that case what happened was that a Sub-Inspector of Police, who had gone to investigate a case, was waylaid and assaulted by certain persons. He was also compelled to write a number of handnotes and letters for extorting money. After the incident was over; he informed the Divisional Inspector about the occurrence and gave him his statement in writing, upon which a case was started by the police against those persons, and chargesheet was submitted against them.
Subsequently, before the examination of witnesses, the Court Sub-inspector, who was the Public Prosecutor, filed an application under Section 494 of the Code of Criminal Procedure for leave to withdraw from the prosecution. Although the Subinspector protested against the withdrawal, the Subdivisional Magistrate gave his consent, and the accused persons were discharged. Thereupon, the Subinspector himself filed a compiaint petition in Court against those accused persons.
The learned Magistrate, after examining the complainant on oath, called for the police records of the case, referred to above, and, on perusal oil the same, held that the story of the complainant was not reliable and it was unnecessary to issue processes against the accused persons and place them on trial which would cause harassment to them. He, accordingly, dismissed the complaint petition.
The complainant Subinspector moved this Court in revision, and it was contended on his behalf that the Subdivisional Magistrate had no jurisdiction to look into the police papers, and, after having examined the complainant on oath, he was bound to issue processes against the accused persons, unless he thought it fit to postpone the same for the purpose of an inquiry to be made, as provided by Section 202 of the Code of Criminal Procedure. This argument was repelled, and his Lordship held that the Magistrate was at perfect liberty to look into the police records, and, if he was satisfied that the complaint was groundless, he was entitled to dismiss the complaint.
In coming to that conclusion, his Lordship observed that it was open to the Magistrate to investigate into the matter in order to ascertain the truth or falsehood of the complaint in any way he thought proper, and that an inquiry contemplated by Section 202 of the Code of Criminal Procedure was not limited to any particular form of inquiry. The above observation, in my opinion, may be read along with the special facts of that case, and it cannot be an authority for a general proposition of law that a Magistrate in making an inquiry under Section 205 of the Code of Criminal Procedure can do anything he may think proper.
The next case is that of Mahabir Baitha, AIR 1931 Pat 302. in which another Single Judge of this Court held that there was nothing illegal in proper cases in calling the accused to an inquiry, although such a practice has to be condemned. In that case, a complaint was filed against the President of the local Union Board, and the Magistrate, doubting the bona fides of the complaint, directed an inquiry to be made by his subordinate Magistrate. The inquiring Magistrate held an inquiry in the village of the accused and examined the accused, who pleaded alibi, and also examined the complainant and a number of witnesses, who lived close to his house, and some witnesses indicated by the accused in connection with his alibi in the absence of both parlies, On a perusal of his report, the complaint was dismissed as being false. On revision by the complainant in the High Court, it was contended that the Magistrate had no jurisdiction to examine the witnesses other than those produced by the complainant. The argument put forward before his Lordship was that the procedure so adopted was illegal. In dealing with the above argument, his Lordship pointed out that it was quite correct to say that the High Courts have repeatedly condemned this practice, but they never have gone to the length of saying that it is illegal.
His Lordship, on a consideration of certain cases, came to the conclusion that there may be occasional necessity for such procedure, and he found that the case before him came within the category of such occasional cases. The accused was the President of the local Union Board and, therefore, by this position not unlikely to make enemies, and there bad been several complaints against him about the bona fides of which the Magistrate was doubful. The decision of this case also rests on the particular facts of that case. It is, however, clear from this case also that, though such a procedure is not illegal, it has been repeatedly condemned by High Courts.
5. The third case is that of Jinilal Mandal, AIR 1941 Pat 419. In that case, in an inquiry under Section 202 of the Code of Criminal Procedure, the witnesses of the complainant were allowed to be cross-examined by the accused and witnesses were examined on behalf of the latter including the Sub-Inspector of police, who was among the accused. The point raised before his Lordship that such a procedure was illegal was rejected, but his Lordship clearly pointed out that the practice of examining the accused and his witnesses and letting the prosecution witnesses to be cross-examined by the defence in an enquiry under Section 202 of the Code of Criminal Procedure Has been repeatedly condemned by the various High Courts. While dealing with the desirability of adopting such a procedure, his Lordship made the following important observation:
"To allow the accused to appear in inquiries under Section 202 is a rule not to be countenanced for a number of reasons. The decisions show how it is apt to be unfair to the accused, no less than to the complainant, and further, unfair to the Magistrate himself in implying that he has time to try cases twice over."
His Lordship, however, did not interfere with the order of dismissal because the accusation arose out of the facts of (sic) a Sub-Inspector of Police who had previously submitted a report under Section 144 of the Code of Criminal Procedure regarding some land claimed by the petitioner, on the one hand, and Lakhan Ram, one of the accused, on the other. A proceeding under Section 145, Code of Criminal Procedure, had followed, and while ft was pending a dafadar bad informed the thana how he had seen the petitioner go upon the disputed land with armed men; and upon this the Sub-inspector had gone to the locality and arrested the petitioner under Section 151 of the Criminal Procedure Code.
The offences complained of by the petitioner were subsequent to this and were imputed to the Sub-Inspector and the dafadar no less than to the other party to the Section 145 proceeding, and imputed by means of a belated complaint. It was pointed out by his Lordship that, in those circumstances, to have issued summonses against the Sub-Inspector and the other accused without an enquiry such as would give some idea of what really happened would have hardly been wise.
6. In the unreported decision of this Court in Basant Rani Mishrain, Criminal Revn. No. 1215 of 1943, D/- 26-1-1944 (Pat), the enquiring Magistrate examined not only the witnesses on behalf of the prosecution, but he also examined witnesses for the defence, and held confidential inquiry in the locality. Sinha, J. (as he then was), dealing with this procedure adopted by the enquiring Magistrate, took the same view, and held that it was not the function of the enquiring Magistrate, and the only thing that he had to be satisfied about was as to whether a prima facie case had been made out. On a perusal of the order of the enquiring Magistrate, it appeared to his Lordship that he had written a judgment of acquittal, and that he appropriated to himself the position of a trial Court. The order of dismissal was, accordingly, set aside, and a Further inquiry was directed to be made into the complaint of the petition.
7. In the case of Radha Kishun Sao, AIR 1949 Pat 36, Das, J. (as he then was) took a similar view, and held that the accused has no right to be heard at the stage when the complaint is under consideration. Whether a prima facie case has or has not been made out does not depend on whether the accused has been heard or not: it depends on the kind of evidence which is given by the complainant in support of his petition of complaint. His Lordship further pointed out that it is undesirable that the inquiry under Section 202, Code of Criminal Procedure, should be converted into a full-dress trial, The same view has been reiterated in AIR 1952 Pat 125, in which Narayan, J., held that an inquiry under Section 202 should not be converted into a full-dress trial, and that what is required of the Magistrate is to see whether the complainant has made out a prima facie case. It was pointed out that a detailed inquiry is not called for and that where the Magistrate examines witnesses and allows their cross-examination, and even examines a court witness, the procedure is not satisfactory.
8. In 1954 BLJR 351, Ramaswami, J., (as he then was) also took a similar view. He observed that it is true that the procedure permitting the witnesses of the complainant to be cross-examined during the course of an inquiry under Section 202 of the Code of Criminal Procedure, adopted by the inquiring officer, was not legal and the witnesses of the complainant ought not to have been cross-examined on behalf of the accused, but that does not mean that the inquiry report of the Magistrate is wholly without jurisdiction or that the order of the Sub-Divisional Magistrate is an order wholly without jurisdiction.
9. In an earlier decision of Upper Burma Judicial Commissioner's Court in 11 Ind Cas 249 (UB), the same view has been taken, and it has been held that a local investigation is not intended by the Legislature to supersede a regular trial, and that when it is found that there is evidence in support of the complainant's charge, the function of the officer making the local investigation is fulfilled. The process should then issue and the truth or falsity of the evidenee determined in a regular manner. It was pointed out that the object of Section 202 is to prevent the issue of process where there is some initial ground for doubting the truth of the complaint and where on a local investigation there appears to be no evidence to support it.
10. In AIR 1953 Cal 689, a single Judge of that Court, took the view that if in the course of inquiry the person delegated to hold inquiry considered it necessary to get the explanation or report of the accused on any matter, there is no law to prevent him from getting such explanation or report, provided the accused is willing to give such explanation or report, and that it is really to prevent a person who may be innocent being harassed day after day in a prolonged trial by simply allowing him to help an inquiring officer to ascertain the truth with the least cost and risk at the initial stage.
It was further pointed out that, as the Code of Criminal Procedure has not by express words or by necessary implication prohibited taking an explanation from the person complained against, and as no reported decision actually says that it is absolutely illegal, but considers in particular cases such a course to have been improper, the contention that the inquiring officer was wrong in calling for an explanation of the accused cannot be sustained. But the wider scope of the inquiry that has been given in this decision has not been accepted by a subsequent decision of a BENCH Of that Court in AIR 1959 Cal 146, and the law on the subject has been pointed out by their Lordships as under (I am quoting the placitum which clearly brings out the correct position):
"The mere presence of an accused person at an enquiry under Section 202 of the Code of Criminal Procedure or assistance given by him directly or through his lawyer to the Magistrate holding the enquiry does not amount to any illegality or even irregularity. It may well amount to illegality where the assistance given turns the enquiry into practically a trial before a trial. The assistances may, however, be kept by the Magistrate within proper limits and where this is done there is nothing wrong.
Where the accused is allowed to cross-examine the witnesses, to adduce defence evidence and to argue thereafter the case as on a trial, the procedure would be so clearly against the procedure contemplated by the Code that it would be proper to hold it to be illegal, so that the order passed on the basis of that report would be also illegal. Where, however, such a mistake is not made and only some assistance is taken from the accused or his lawyers, the mistake is at the worst an irregularity and the Court has further to see whether by such irregularity a failure of justice has in fact occurred."
In that case, the inquiring Magistrate put certain questions to the witnesses during the inquiry under Section 202, Cr. P. C., on the basis of some suggestions made by a lawyer who was appearing on behalf of some of the accused persons to watch the proceeding. It was held by their Lordships that it did not amount even to any irregularity and furnished no ground for challenging the order.
11. A Full Bench of the Madras High Court in AIR 1927 Mad 19, has also pointed out that although allowing a proposed accused person hi appear and to hear what he has to say while the proceedings are at the stage contemplated by Section 202, Cr. P. C., might turn the scale and satisfy the Magistrate that there was no case for issuing process under Section 204 of the Code, yet such a procedure is entirely unwarranted by the Code of Criminal Procedure.
12. On a consideration of the authorities referred to above, the law on the subject, in my opinion, is that, during the course of an inquiry under Section 202, Cr. P. C., the inquiring officer has to satisfy himself, on the evidence adduced by the prosecution, if a prima facie caae has been made out so as to put the proposed accused on trial, and it is only at the stage of the trial that the truth or falsity of the allegations made in the complaint petition has to be finally determined.
The accused in such an inquiry cannot be compelled to appear, but there will be no illegality if he, of his own accord, appears before the inquiring officer and assists him in the matter of the inquiry; but he cannot be permitted either to cross-examine the witnesses produced by the complainant, or to produce his own evidenee in defence. Where the inquiring officer has allowed the accused to cross-examine the witnesses of the complainant, or to adduce evidence in defence, or has taken into consideration some informations received by him either on confidential inquiry or from some other source, the procedure, though not illegal in the sense that it vitiates the ultimate order passed by the Magistrate, is unjustified, improper and condemnable.
It is, therefore, clear that, though on the facts of a particular case the High Court may not inter-fere with the order of dismissal of the complaint on the report of the inquiring officer, who has adopted the above condemned procedure, yet, if the inquiry has taken the shape of a regular trial and the report of the inquiring officer shows that he has taken upon himself the function of a trying Magistrate and has written a judgment of acquittal, the High Court will be justified in interfering with such order of dismissal.
13. Now, it has to be seen whether the order of dismissal in the present case should be interfered with or not. There are several item, of alleged defalcation according to the petition of complaint. One of them relates to an amount of Rs. 2568-1-9. It appears that the Headmaster, opposite party No. 1, retained in his hands a sum of Rs. 4146-1-9 for purchase of camera, slides, etc., and for payment of final dues of one Sri Ramchandra Chaudhary. Out of the above sum of money, the account shows that, after certain expenses, a sum of Rs. 1922-0-0 remained with him from the 1st of June, 1956, and a sum of Rs. 646-1-9 from the 30th of March, 1958 until he paid the same at the time of audit on the 26th of July, 1957.
Admittedly, he was on leave without pay from the 17th of December, 1959, to the 13th of March, 1937. According to the complainant, he never joined as Headmaster of the school after the 13th of March, 1957. According to the defence, however, he worked as the Headmaster till the 1st of August, 1957, when he made over charge to his successor. It is, however, an admitted fact in the case that he never signed the Teachers' Attendance Register after the loth March, 1957, as he used to do before he went on leave without pay on the 17th of December, 1956.
There is an endorsement on the Attendance Register that the Headmaster was absent during the said period. It is contended on behalf of the defence that the above endorsement is an inter-polation. At the stage of inquiry under Section 202, Cr. P. C., it is not, however, possible to come to a definite conclusion whether the endorsement is a subsequent interpolation or not, and it is a matter really for the Magistrate who may try the case to see the correctness or otherwise of the allegations of the respective parties in this regard.
Be that as it may, there is no doubt that the Headmaster, opposite party No. 1, retained a sum of Rs. 2508-1-9 with him for about a year, even though he was not functioning as the Headmaster, either on account of his having gone on leave without pay or on account of his not having joined thereafter. The materials on record do not show any justifiable explanation for retention of this huge amount by the Headmaster for such a long period. It may, therefore, be a case of temporary embezzlement, which is undoubtedly punishable.
The prosecution has led evidence in this case to show that at times the Headmaster used to give certain amounts of money from the fund of the school to certain persons as loan, who subsequently repaid the same. The prosecution has examined witnesses to support this contention, and it is suggested that the loans may have been advanced to those persons out of the above sum of money. Thus, a prima facie evidence of misappropriation, though a temporary one, is on the record, and there is nothing to reject the same. The Additional District Magistrate has taken pains to have a detailed examination of these matters at the inquiry stage for coming to a final decision against the prosecution, and, in doing so, he has undoubtedly gone beyond his jurisdiction.
14. With respect to the question whether opposite party No. 1 was functioning as the Headmaster after the 13th of March, 1957, or not, though he never signed the Attendance Register, the defence suggested that he had been acting as Superintendent of Examination in the capacity of his being the Headmaster of the school; and, in order to ascertain the truth of this suggestion, the learned Magistrate appears to have written a letter to the Secretary, Board of Secondary School Examination whether he functioned as the Superintendent of Examinations or not.
It is said that the Addl. District Magistrate received a letter from the Secretary that opposite party No. I did act as the Superintendent of Examinations being the Headmaser of the school. That letter is not on the record. The complainant had no information about the letter writtea by the Addl, District Magistrate to the Secretary or of the reply received by the Addl. District Magistrate, and all that was done in this regard was done behind the back of the complainant, who had no opportunity to meet the same.
The prosecution has thus beea seriously prejudiced in persuading the Addl. District Magistrate to issue processes against the opposite party on the evidence of the prosecution which prima facie established the truth of the complaint. It has been contended on behalf o£ opposite party No. 1 that, though he retained the amount at Rs. 2568-1-9 with him, he had clearly mentioned in the account books the purposes for which that amount was retained, and, therefore, his intention could not be dishonest, Simply because the purposes for which the money had been retained by him are mentioned in the books of account, they will not be enough to show that the Headmaster had no dishonest intention ia retaining the huge amount of the school for about a year without any reasonable explanation.
It has also been contended on behalf of the defence that, as soon as the auditor audited the accounts, the Headmaster conceded that the amount was kept with him, and lie at once deposited the-same. It is, therefore, contended that this could not he a caso of even temporary misappropriation. Again, I am not inclined to accept this argument. There may have been a temporary misappropriation, even though subsequently at ths time of audit the amount had been deposited by the Headmaster.
15. Another amount of alleged defalcation is a sum of Rs. 1750-0-0, which is said to have been advanced by the Headmaster to one Ramchandra Chaudhary, a contractor of Muzaffarpur, for supnly of gallery materials, practical table, etc. The above amount was advanced to the said contractor on the 25th of November, 1955, but the supnly was not made even till the 31st of March, 1957. According to the auditor, the transaction appeared to be suspicious and required a thorough investigation. There is nothing on the record to show as to what the Headmaster did to have the materials supplied during the above period, and what action he took against the contractor for non-supply of the same. It would really be a question at the trial to see whether actually this amount was advanced ta the contractor or it was only a show in tho papers that the above amount was advanced to that person, and the money was really defalcates by the Headmaster himself.
16. I need not consider all items of the claim. The allegations are very serious, and especially against a person who is responsible for the well-conduct of the school. At the enquiry stage, the complainant may have thought fit only to adduce prima facie evidence, and may not have gone into details, as he should have done at the trial itself. In my opinion, the Addl. District Magistrate absolutely erred in this case in usurping the function of the trying Magistrate and dismissing the complaint by writing out a judgment of acquittal in favour of the Headmaster.
17. The allegation against opposite party No. 2 is that the Headmaster misappropriated the money of the school and indulged in falsification of accounts in conspiracy with this opposite party No. 2, who is his close friend and associate. Evidence has been adduced in this case to show that this opposite party No. 2 was given money by the Headmaster, opposite party No. 1, in the school premises for making repayment of a loan of Rs. 1500/- taken by him, and it is suggested that this amount appertained to the school fund, and thus opposite party No. 2 also defalcated the school money.
There is further evidence on the record that this opposite party No. 2 got certain bogus vouchers prepared for helping opposite party No. 1 during the audit to explain away the misappropriation detected by the auditor. Prima Eacie, there is nothing in the evidence on which the same could be rejected in limine and it will have to be seen by the Court trying the case whether the allegations made against this opposite party are substantially true or not.
18. I have looked into the evidence available on the record, though some of the documents on which the learned Addl. District Magistrate held against the truth of the complaint have been withdrawn. It will not be proper for me to express any definite opinion about the evidence On its merit because that may prejudice the accused at the trial, but I must observe that the evidence available on the record, if unrebutted in cross-examination, makes out a prima facie case for putting the opposite parties on trial.
19. The result, therefore, is that the application is allowed, the order of the learned Additional District Magistrate dismissing the complaint petition is set aside, and the case is sent back to him with a direction to issue processes against the opposite parties as contemplated by Section 204, Cr. P. C.