- (1.) Leave granted.
(2.) This appeal is filed by the appellant/accused questioning the correctness of the judgment and final Order dated 04.02.2009 passed by the High Court of Judicature at Rajasthan, Jaipur in S.B. Criminal Misc. Petition No. 1067 of 2005 remanding the matter back to the trial court for fresh decision in the light of the statements of the witnesses and also the material and evidence available on record, urging various facts and legal contentions in justification of his claim.
(3.) Necessary relevant facts are stated hereunder to appreciate the case of the appellant/accused and also to find out whether he is entitled for the relief as prayed in this appeal. At the time of filing of this appeal, there were two respondents, respondent no.1 Ram Dayal the complainant and respondent no.2 the State of Rajasthan. Name of the complainant-Respondent no.1 has been deleted vide this Court's order dated 13th September, 2010 as the appellant could not take steps of service upon him. The complainant alleged that on 1.10.1994, he gave three gold chains weighing 6.5 tola to the accused-appellant for making a new design chain after melting the old chains. But according to the complainant, neither the three old chains nor a new gold chain were returned to him. On 2.11.1994, the complainant sent a telegram asking the accused appellant to return the gold chains. He further sent a legal notice through his advocate to the appellant on 6.5.1995 making allegation of taking the gold chains and not returning the same. All the allegations were denied by the appellant. The complainant then filed a complaint under Section 156(3) of the Criminal Procedure Code (in short 'CrPC') for an offence under Section 406 of the Indian Penal Code. Statements of witnesses were taken under Section 161, CrPC by the Additional Chief Judicial Magistrate, Gangapur City. The complainant further filed an application under Section 190 of CrPC before the Additional Metropolitan Magistrate bringing to his notice the commission of the alleged offence. Investigation was conducted by the SHO, PS Gangapur City, District Sawai Madhopur and report was submitted by him who concluded that the FIR was false and the case was without merit. The complainant filed a protest petition against the said report. The Additional Chief Judicial Magistrate, while considering the protest petition, confirmed the negative report. The complainant challenged the said Order of the Additional Chief Judicial Magistrate before the Additional Sessions Judge by filing a protest petition. The Court of Additional Sessions Judge set aside the Order of the Additional Chief Judicial Magistrate and sent the matter back to the Additional Metropolitan Magistrate to rehear the matter after considering the documents on record. The Additional Metropolitan Magistrate considered the entire evidence on record and came to the conclusion that no case was made out and the protest petition filed by the complainant deserved to be dismissed.;