- (1.) HEARD both the sides. This criminal miscellaneous application has been filed for quashing the order dated 17.12.2002 paused by Shri Chamru Tanti, learned Additional Sessions Judge, Dumka, in Cr. Rev. No. 79 of 2002/1 of 2002, whereby and whereunder the learned Additional Sessions Judge set aside the order of taking cognizance dated 24.6.2002 passed by the Sub -Divisional Judicial Magistrate, Dumka, in P.C.R. Case No. 187 of 2002, of the offence under Sections 420 and 406 of the Indian Penal Code by which the learned SDJM Dumka, issued process for appearance of the accused of that case, who is opposite party No. 2.herein.
(2.) THE short facts of this case are that the petitioner/complainant Hari Prasad Singhania has filed a complaint case against the opposite party No. 2 alleging therein that they were on friendly term and on the request of the opposite party No. 2, the petitioner handed over Rs. 53,000/ - to him which the accused/opposite party No. 2 undertook to return. On 12.10.1999 the opposite party No. 2 had also granted a hand receipt to the complainant. When the opposite party No. 2 did not return the amount, the complainant approached him several times but the accused/opposite party No. 2 delayed the matter on some pretext or the other and ultimately, on 15.5.2002 he refused to pay the amount. Thereafter the complainant approached the concerned police Station but the police did not entertain the complainant then he filed the complaint case before the Court and considering the evidence adduced on behalf of the complainant in course of enquiry under Section 202, of the Code of Criminal Procedure, the Court issued summons against the opposite party No. 2 for his appearance. In this criminal miscellaneous petition, the impugned order has been assailed on the ground that the order was an interlocutory one and consequently the learned Additional Sessions Judge could not have entertained the revision and secondly, when the case was prima facie made out disclosing the aforesaid offence, the order taking cognizance could not have been set aside.
(3.) THE learned counsel for the petitioner relying on various decisions has argued that if there are criminal and civil remedy both available then the existence of one remedy does not ban the right of the complainant to exercise the other remedy recording to his choice. He referred to a decision reported in 2002 (3) JLJR 201 in this case. He also argued that when the prima facie case is made out and the witnesses who were examined under Section 202 of the Code of Criminal Procedure, have supported the case, then the right of the Magistrate is only to find out whether the offence as alleged in the complaint is made out prima -facie, but at that stage the Magistrate had no jurisdiction to write a judgment, therefore, order of the Magistrate is correct which could not have been interfered with in revision.;