Thadani, Ag. C.J.
1. This is a reference made by the learned Sessions Judge, Upper Assam Districts, reporting to this Court Case no 1512-0 of 1947-Onkarmal Agarwalla v. Tulsi Nath Gogoi—
Under Section 417, Penal Code, disposed of by Mr. T. Ahmed, Magistrate, 1st Glass, Dibrugarh.
2. In November 1947, the complainant, Onkarmal Agarwalla, delivered a quantity of rice to Tulsi Nath Gogoi, with instructions to deliver the same to the Manager of the Singlijan T.E. and to obtain a cheque from him for the price. The accused Tulsinath Gogoi obtained a cheque from the Manager of the Singlijan T.E., but did not give it to the complainant. The complainant, thinking that the Manager had not given the accused Tulsinath a cheque, asked the accused to go with him to the Manager of the Singlijan T.E. on the way, the accused, on the pretext of answering a call of nature, patted company with the complainant and never returned. The complainant made inquiries from the office of the Tea Estate and was informed that a cheque was given to the accused the previous evening. The cheque was for a sum of RS. 2800- 5-0.
3. On the following day, i. e. 19th November 1947. the complainant filed a complaint before the District Magistrate of Lakhimpur who transferred it to Mr. A. Ahmed, E. A. C, for disposal. Mr. A. Ahmed examined the complainant on oath on 19th November 1947 and issued process against the accused Under Section 420, Penal Code. The accused appeared in Oourt on 19th December 1947- Mr. A. Ahmed, however, was transferred and the case came to the file of another Magistrate of the 1st Class, one Mr. T. Ahmed, also stationed at Dibrugarh.
4. On 20th April 1948, Mr. T. Ahmed exa-mined 6 witnesses, including the complainant, and framed a charge against the accused Under Section 420, Penal Code. For some reason or other, the case could not be heard until 28th January 1949, on which date the prosecution witnesses were further cross-examined by the defence, and the case for the prosecution came to a close. The ease was adjourned to 1st March 1949, for defence. On 1st March 1949, the complainant appears to have been absent, and the case was adjourned to 7th March 1949. On 7th March 1949, the complainant was again absent, and the learned Magistrate, Mr T. Ahmed, passed the following order; 'Complainant absent. No steps taken. Accused acquitted.' It is against this order that the learned Sessions Judge has made this reference.
5. The learned Sessions Judge points out that the order passed by the learned Magistrate contravenes the provisions of Section 258 (1), Criminal P.C., which says:
If in any case under this chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
The learned Sessions Judge rightly points out that the learned Magistrate has not found the-accused not guilty, and that he could not, therefore, pass an order of acquittal. The learned Sessions Judge also points out that Mr. T. Ahmed has contravened the provisions of Section 367 (1), Criminal P.C. No points for determination have been set out in the judgment of acquittal, no reasons have been given for the decision.
6. We agree with the learned Sessions Judge, for reason stated by him, that the order of acquittal passed by the learned Magistrate in this case is one which must be set aside. We accordingly set aside the order of the learned Magistrate, dated 7th March 1949, and remand the case for disposal according to law, from the stage at which he passed the erroneous order on 7th March 1949.
7. The trying Magistrate is directed to call upon the accused to adduce evidence in his defence, if he so wishes, hear argument if any and thereafter to pass judgment in accordance with law.