- (1.) V. N. Misra, J. This is an application in revision by Lal Chand and Raj Kumar against the order dated January 6, 1981 by Sri B. L. Sachdeva, Chief Judicial Magistrate, Varanasi, in Case No. 160 of 1978, in which he discharged the opposite parties Nos. 2 and 3 in this case before him under Section 406 read with Section 420 of the Indian Penal Code (hereinafter referred to as the I. P. C. ).
(2.) BRIEFLY stated the prosecution case was that Khairati Lal, Trilok Singh and Kashmir Singh had a partnership firm in the name of Cum Nanak Chit Fund and Finance Company (hereinafter referred to as the Firm ). The registered office of the Firm was in Guru Bagh Luxa, Varanasi and its branch office was at Resham Katra, Varanasi. The Firm made 300 members, who contributed rupees one hundred each every month for fifty months. On 22nd of every month a draw was held and the name of the member, whose name was drawn, got a reward of Rs. 5,000|- and he was not required to make any further monthly deposit after that and those whose names were not drawn were returned the amount of money deposited along with Rs. 300/ -. On July 6, 1977 Khairati Lal died in Delhi. After that this Firm was dissolved and no further draws were held. It was alleged that the opposite parties 2 and 3 the other two partners of this Firm, did not deposit the money received by them in the Bank did not give any loan and when Lal Chand and Raj Kumar applicants went to Khairati Lal to get the money deposited by them, he did not give them any money and challenged them to do whatever they wanted. It was alleged that the opposite parties 2 and 3 had misappropriated rupees four or five lacs like this. In the case against them under Section 406 read with Section 420 of the I. P. C. the learned Chief Judicial Magistrate discharged those opposite parties, hence this revision. When this case proceeded before the learned Chief Judicial Magistrate, he asked the Assistant Public Prosecutor to prepare a statement showing the amount embezzled by opposite parties. This statement was submitted in which it was shown that the amount of Rs. 10,71,900|- had been embezzled. But the learned Magistrate said that the dates, on which different amounts making up this total had been received, was not shown in the statement, nor was it shown how much of this amount was embezzled within a period of one year, therefore, he discharged the applicants and directed that they could file a civil suit. It was, however, for the learned Magistrate himself to find out from the evidence submitted to him under Section 173 (5) of the Code of Criminal Procedure on which date the different amounts, which made up the total of Rs. 10,71,900]- had been deposited; how much of these amounts had been embezzled and what amounts were embezzled within the period of one year and in the case before him the opposite parties could not be discharged merely because of deficiency which he found in the statement which he got prepared from the Assistant Public Prosecutor and which was not in evidence in this case.
(3.) IN his order the learned Magistrate merely said that he had seen all the evidence and no case was made out under Section 406 read with Section 420 of the I. P. C. and, therefore, he was discharging the accused, but this he could not do. This revision is, therefore, allowed and the case is remanded back to the learned Chief Judicial Magistrate who shall examine all the evidence before him under Section 173 (5) of the Code of Criminal Procedure and shall examine the other evidence also as stated in Section 239 of the Code of Criminal Procedure and then he shall either discharge the opposite-parties 2 and 3 or proceed with the case against them. .;