- (1.) S. N. Saxena, J. This revision application is directed against the judg ment and order dated 30-1-1992 passed by learned IInd Addisional District and Sessions Judge Nainital whereby he allowed the criminal revision No. 135/1991- Rajeshwar Saran Sharda v. Som Nath Tyagi, set aside the order dated 31-7-1991 passed by the Judicial Magistrate, Haldwani in Criminal Case No. 569/91 and directed the learned Magistrate to pass fresh order on the complaint in accor dance with law and in the light of the observations made by him in the body of the judgment for summoning the accused for trial under Section 420/422, I. P. C.
(2.) THE facts of the case are as follows : Complainant Rajeshwar Saran Sharda filed a complaint under Section 420/422,1. P. C. against Som Nath Tyagi in the court of Judicial Magistrate, Haldwani on 10-5-1991 with the allegations that he had been doing business of a soapstone powder for the many years and had appointed Som Nath Tyagi as the agent of his Mills for the year 1990 under certain terms and conditions which were agreed upon by the parties that the said agent was to get commis sion during the discharge of the duties upon the amount of order collected by him from the customers supply of the materials by the mill but he had got no right to accept the cash money. THE agent bad received a sum of Rs. 11310 under the order dated 6-9-1990 but had not given the same to the complainant. After exchange of the correspondance the agent had admitted that he bad received the payment but did rot pay the aforesaid mount to him due to which the complainant filed the criminal complaint against him under the aforesaid provisions of law. The complainant produced evidence in support of the criminal complaint but the learned Judicial Magistrate, Haldwani by his order dated 31-7-1991 dismissed the complaint on the ground that prima facie no case had been made out against the accused. The complainant, therefore, preferred the aforesaid criminal revision before the learned Sessions Judge which was allowed and case was remanded to the learned Judicial Magistrate. After hearing the arguments advanced by the learned counsel for the parties I am of the opinion that the learned IInd Additional District and Sessions Judge, Nainital had rightly allowed the revision application. This revision application filed by accused Som Nath Tyagi therefore was liable to be dismissed. The evidence adduced by the petitioner consisted of his statement and the statement of one more witness named Sanjay Goel who was the Manager of his factory. He also had filed letter dated 13-2- 1991 to prove that the payment of Rs. 11,310 was made to the accused by the purchaser. The copies of the statements of the above-mentioned two witnesses and also of the complaint are on the record and after considering the same, I find that a prima facie had been made out successfully against the accused. The learned Magistrate was in error in not summoning the accused on the basis of the evidence adduced by the petitioner. Learned IInd Additional District and Ses sions Judge by means of the impugned judgment and order rightly arrived at the conclusion that accused Som Nath Tyagi should have been summoned by the learned Chief Judicial Magistrate as there was sufficient ground for proceeding further against him.
(3.) HERE summoning of the accused in accordance with the order passed in the impugned decision of the learned IInd Additional District and Sessions Judge did not by itself justisfy interference by this court in this criminal revision application. Accused Som Nath Tyagi had only been summoned and at the proper stage there was possibility of his discharge or acquittal by the learned Magistrate if no case was made out against him. Reference in this regard may be made to the following observations of the Hon'ble Supreme Court in its decision reported in 1982 ALJ 285 (1) Kacheru Singh v. State of U. P. and others: "all that the learned Magistrate had done was to issue a summons to respondent No. 2 Satyavir Singh. If eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or aquit him as the case may be but it is difficult to appreciate why the order issuing 'summons' to the accused should be quashed". In view of the above-mentioned proposition of law laid down by the apex Court, I am of the opinion that it was not proper at this stage to quash the impugned judgment and order whereby the learned IInd Additional District and Sessions Judge had sent back the case for summoning the accused. It was contended that there was no territorial jurisdiction for the learned Chief Judicial Magistrate for summoning the accused and therefore, impugned order was liable to be quashed. The decision of this question rested' upon the evidence which parties may produce during the trial. No opinion can be given in this regard at this stage, learned Chief Judicial Magistrate natuarally will decide the question of territorial jurisdiction if raised before him. In the result, the revision application is liable to be dismissed.;