- (1.) This criminal revision arises out of a case of alleged cheating. Rattu Ram filed a complaint against two accused, Rajendra Tewari and Sheo Kumar Pandey on these allegations.
(2.) The complainant is a member of a co operative society. Accused No. 1 was the sarpanch of the society; and accused No. 2 was the supervisor of the society. The two accused promised to secure for the complainant a loan from the co-operative society for a sum of Rs. 100/- . The complainant's signature was obtained suggesting that be had received the sum of Rs. 100/- . An appropriate entry was made in the complainant's passbook. The sum of Rs. 100/- was obtained by the two accused, but was never paid to the complainant. The complainant protested to the departmental authorities, but got no redress. Rattu Ram, therefore, filed al complaint in Court in September, 1961. That complaint was dismissed on 19-3-1962 on the ground that the complainant was absent. The same day (19-3-1962) Rattu Ram filed another complaint. The second complaint was dealt with by another Magistrate. He took the view that the second complaint was barred Under Section 403, Code of Criminal Procedure. The accused were, therefore, discharged on 30-4-1963. Against that order, a revision was filed by Rattu Ram complainant. The revision was dismissed by the Civil and Sessions Judge, Mirzapur on 22-2-65. The present revision by Rattu Ram to this Court is directed against the order dated 22-2-1965 dismissing the complainant's revision.
(3.) It will be seen that the trial Court did not dispose of the complainant's case on merits. The trial Court held that the second complaint was barred Under Section 403, Code of Criminal Procedure. This view has been challenged on behalf of the complainant. The trial Court took the view that the first complaint was dismissed Under Section 247, Code of Criminal Procedure. That dismissal had the effect of acquittal. In view of the acquittal upon the first complaint, the second complaint is barred. In Chitto v. Vidya Bhushan, 1952 AIR(All) 455 it was held that there is no legal bar to a Magistrate's taking cognizance of offence on a second or fresh complaint whether the previous complaint was dismissed on merits or otherwise. In that case the first complaint had been dismissed on the ground of vagueness. It was not dealt with Under Section 247, Code of Criminal Procedure. There was, therefore, no question of the dismissal operating as an acquittal. In Mafatlal v. C.C. Shah, 1965 AIR(Guj) 180 it was held that the Court cannot add the words "on being called for hearing" in Section 247, Code of Criminal Procedure and cannot read those words in the section when those words are not there. Section 247 states: If the summons had been issued on complaint and upon the day appointed for the appearance of the accused...the complainant does not appear, the Magistrate shall...acquit the accused... The question has been raised whether an order as contemplated by Section 247, Code of Criminal Procedure can be passed in the early part of a day. In Ram Narain v. Mool Chand,1960 AndhWR 597 it was held by Mulla, J. that an order of acquittal for the default of appearance of the complainant should be passed at the end of the day.;