1. The petitioner – original accused has filed this Revision Application against the order dated 19.8.1999, passed below Exh.1 in Criminal Case No. 410 of 1991 by the learned Metropolitan Magistrate, Court No.5, Ahmedabad, whereby the learned Magistrate has rejected the prayer for discharge made by the petitioner – accused by application (Annexure-”A”) dated 6.5.1999.
2. Heard learned Counsel Mr. A.D. Shah, appearing for the petitioner, learned APP Mr. H.L.Jani, appearing for the respondent No.1 – State and learned Advocate Mr. Soni for Mr. Patel, appearing for respondent No.2 – original complainant.
3. Learned Counsel Mr. Shah for the petitioner has contended that the impugned order of the learned Magistrate is absolutely illegal and unwarranted on the facts of the case. He has contended that the complainant has to examine all the relevant witnesses to substantiate the allegations against the accused and thereafter, under Section 245(1), the accused can always submit that the facts and evidence emerging from the record do not, prima-facie, make out commission of any offence even if they remain unrebutted. He has contended that looking to the facts of the case and the evidence produced on the record, ingredients of Sections 405 & 406 of I.P. Code, entrustment and dominion over the property is not established against the petitioner – accused. He has contended that it is the duty of the prosecution to establish through oral as well as the documentary evidence to show that he is cheated by the present petitioner – accused. He has contended that there is delay in filing the complaint, which is not explained. He has contended that the complainant himself has admitted in his cross-examination that the loan was obtained through the Bank for machinery with the mutual understanding and it is simply a contract for sale and purchase. Therefore, the ingredients of Sections 405 & 406 I.P. Code is, prima-facie, not established against the present petitioner – accused.
4. Learned Advocate Mr. Soni, appearing for Mr. Patel for the original complainant has contended that, no doubt, there is delay in filing the complaint. He has contended that there is deal of purchase of machinery between both the parties, however, the petitioner – accused has refused to hand over the machinery and that conduct is required to be considered that he has committed the offence under Sections 405 & 406 of I.P. Code. I have also heard learned A.P.P. Mr. Jani.
5. Heard learned Advocates for the respective parties and also perused papers produced before me. First of all, from the contents of the complaint itself, it is clearly established that there was contract for sale and purchase between the parties and estimate letter is also received by the respondent – complainant. From the cross examination of the complainant, it clearly appears that he has failed to prove that there was entrustment and dominion over the property by the petitioner – accused. Even the complainant has kept himself silent that the Bank has filed Civil Suit for recovery of loan amount, but, it appears that there was some civil litigation filed by the Bank against the present respondent – complainant. The complainant has also admitted in his oral evidence that he has obtained bank loan and the employee of the Bank has also visited the place for inspection.
6. In view of above, it is clearly established that, prima- facie, the respondent – complainant has failed to prove his case beyond reasonable doubt. However, the learned Magistrate has wrongly observed that it is a case to frame the charge by considering that in future some evidence will come. That is not the sufficient ground to consider the case when the evidence is not produced on the record then the Court can not wait for production of evidence. I am, therefore, not in agreement with the reasoning given by the learned Magistrate.
7. Accordingly, this Revision Application is allowed. The order dated 19.8.1999 passed by the learned Metropolitan Magistrate, Court No.5, Ahmedabad, passed below Ex.1 in Criminal Case No.410 of 1991, is hereby quashed and set aside. Rule is made absolute.
(Z.K.SAIYED, J.) sas