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The Chief Presidency Magistrate directed, under sec. 156(3) of the Code of Criminal Procedure, the police to make an inquiry. In the course of that inquiry the police seized the said 707 share certificates from Hormusji. It would appear that although the appellant requested the investigating officer to examine the said Majumdar and Varma, who, it was said, was prepared to come to India for that purpose, that officer declined to do so. The police thereafter made their report recommending discharge of the accused on the ground that the complaint filed by the appel- lant was false, that the said receipt was a forged document and sought permission of the Magistrate to take action against the appellant. On May 7, 1966, the appellant filed a protest application requesting the Chief Presidency Magistrate to take the matter out of the hands of the police and to order a judicial inquiry. Thereupon the Chief Presidency Magistrate directed the Presidency Magistrate, 3rd Court, Calcutta to hold such an inquiry. The proceedings thereupon went to that magistrate before whom the appellant and his witnesses P. R. Chaudhary and Majumdar gave their depositions. Varma was not examined as he was in England, but an affidavit by him was produced before the Magistrate.

In support of the High Court's order counsel for the respon- dents argued that there was no reference of the receipt in the protest application, dated May 7, 1966, that likewise, there was no reference therein of the indemnity bond, that there were contradictions in the versions of Varma and Hoon as to when the appellant signed that bond, that the said share certificates were tinder attachment, and therefore, Jaffray, was not likely to deliver them to Varma, that Majumdar did not mention entrustment in his evidence, that the letter of Varma to Jaffray said to have been carried by Chaudhry when he went to take delivery of the said share certificates was not produced, and lastly, that though Hoon had complained that the police had not given him an opportunity to examine Varma, he failed to produce him before the Magistrate, though he had both time and opportunity to do so. In addition, Mr. Chatterjee, appearing for Jaffray, Rodewald and Horniusji argued that so far as Hormusji was concerned, there was no evidence against him except the bare allegation of conspiracy, that the,indemnity bond intrinsically contradicted the case of delivery of the shares to Varma and their entrustment to Jaffray inasmuch as according to that document delivery was to be made to M/s. Sanderson & Morgan and not to, Varma, and finally, that the evidence at best showed that it was a case of promise to deliver and its breach and not one of entrustment and breach of trust. We refrain at this stage to express our views on these contentions lest such views might later on affect one party or the other. Nevertheless, we are bound to say that both the receipt and the indemnity bond, whether referred to in the protest application or not, were before the Magistrate and were marked by him as documents 2 and 5. They were also before the High Court. Over and above these two documents, there was the evidence of Majumdar, Hoon and Chaudhary, according to which the two documents- were executed on May 27, 1965 when Varma went to the Company's office to obtain delivery of the said shares. It is true that Varma was not examined though, if examined, he would have been the principal witness. It is also true that his affidavit in his absence could not constitute admissible evidence. Despite that omission, there was evidence, both oral and documentary, supported by contemporaneous letters of M/s Sanderson & Morgan, demanding the said share certificates from Jaffray personally. It may be that much could be said on both the sides. But it was certainly not a case of there being no prima facie case or the evidence being so self- contradictory or intrinsically untrustworthy that process could properly be refused. This follows from the fact that neither the Chief Presidency Magistrate nor the High Court expressed the view that the evidence, either of the appellant or of Majumdar or, of Chaudhary, was false or intrinsically unbelievable. Indeed, both the Chief Presidency Magistrate and the High Court founded their orders of dismissal mainly on the ground of omission to examine Varma without considering whether despite that omission there was other evidence on record which made out a sufficient ground for proceeding with the case. At the stage of sec. 202 7-L348Sup.C.I./73 inquiry what a complainant has to make out is such a sufficient ground. He need not necessarily produce at that stage all the evidence available to him. Merely because the appellant did not examine Varma, (however important he was) because that would have meant bringing him to India from England at considerable cost, could not be a ground for throwing out his complaint,, even though such of the other evidence he led was capable of making out a prima facie case.