- (1.) THIS is an appeal by the complainant Jawana on leave granted under sec. 417, sub-sec. (3), Criminal P. C. against the order of the Munsiff Magistrate, Bhinmal dated 26th June, 1963, acquitting the respondents Chhoga and Ladha.
(2.) THE relevant facts may be stated as follows: - THE complainant - appellant Jawana filed a complaint against the respondents on 21st of June, 1961, in the court of First Class Magistrate, Bhinmal, under sec. 379, Indian Penal Code. THE allegations in the complaint were that the complainant took a loan of Rs. 1,300-/ from the accused Chhoga for purchasing a pair of bullock and executed a promissory note in his favour. That on Jeth sudi 4 of Smt. 2017 the accused-respondents went to the appellant and wanted to take away the jawar which was lying in his field. THE complainant did not permit them to take away the jawar and sent for the police Munshi for his help. THE accused went away on that day. THEy, however, went to the complainant's well on the next day and took away the complainant's pair of bullocks. On these facts, he prosecuted both the respondents of an offence under sec. 379, Indian Penal Code. The trial Magistrate examined the complainant and recorded the evidence of the witnesses and framed charges against both the accused under sec. 379, Indian Penal Code, on 3-5-1963. The accused pleaded not guilty and when examined under sec. 256, they wanted further cross-examination of all the witnesses. The case was fixed for 30-5-1963 for cross-examination of the witnesses. On 30th May, 1963 the Munsif Magistrate was transferred and the new Munsif Magistrate had not resumed duty. Consequently, the case was adjourned to 26-6-63. On the last mentioned date the complainant and his witnesses were absent and the magistrate recorded an order of acquittal under sec. 258, Criminal P. C. While recording the order of acquittal, he gave no consideration to the evidence of two eye witnesses Jetha and Bhana who could not be produced for further cross-examination. In challenging the order of acquittal Mr. Lekh Raj made two submissions: (1) That when the case was adjourned on 30th May, 1963 to 26th of June, 1963, the complainant's counsel carried an impression that the case had been adjourned to 29th of June, 1963. Entry from the case diary of the complainant's counsel showing the case as fixed for 29th June, 1963 has been produced by the appellant's counsel. It was contended that it was under a bonafide mistake that the complainant and his counsel could not appear in court on 20th of June, 1963. (2) Secondly, it was contended that after the framing of the charges it was the duty of the Magistrate to have enforced the attendance of the witnesses for further cross-examination and the complainant could not be penalised for the non-production of the witnesses for cross-examination. It was also contended that the Magistrate was not justified in ignoring the statements of the two witnesses Bhana and Jetha. In support of the second contention, the learned counsel has referred to Rampal Vs. Mangia (1 ). Mr. Sardar Singh had no adequate answer to the contentions raised on behalf of the appellant. The first contention has considerable force in view of the entry in the case-diary and the second contention has full support from the decision in Rampal Vs. Mangia (1 ). In these circumstances, the order of acquittal is not sustainable and has to be set aside. The appeal is accepted, the order of the Magistrate dated 26-6-1963 is set aside and the case is sent back to him for further trial in accordance with law. The Magistrate shall take necessary steps for enforcing the attendance of the complainant's witnesses for further cross-examination and after their cross-examination record such evidence in defence as the accused may choose to produce and shall thereafter pass a proper order in accordance with law. .;