M.C. Desai, J.
1. The applicants challenge an order passed by the Sessions Judge of Budaun setting aside under Section 436, Cri.P.C. an order passed by a Magistrate 1st Class discharging them. The applicants were prosecuted for the offences of Sections 420 and 406. I.P.C. The gist of the complaint was that they entered into a contract with the complainant -opposite party for sale of jute of a certain quality, realised its price and later delivered jute of an inferior quality to his order. All the applicants appeared before the Magistrate on 9.12.1958 and the case was adjourned for prosecution evidence to 7.2.1959. On that date the opposite party was absent and though the Magistrate excused his absence (at his counsel's request), he did not proceed with the case but adjourned it to 14.2.1959 just for hearing arguments on the question whether the personal attendance of some of the applicants should be dispensed with or not. There was no reason for his not deciding this question on 7.2.1959 and for not fixing the next date also for prosecution evidence on 14.2.1969 he exempted the personal attendance of some of the applicants and adjourned the case to 17.3.1959 for evidence.
On 17.3.1959 the opposite party was absent and his counsel obtained an adjournment to 16.4.1959 after payment of Rs. 35/- as costs. On 16.4.1959 the opposite party got another adjournment on the ground that the personal attendance in court of some of the applicants, who were allowed to be represented by a lawyer, was essential in the case. It is difficult to understand this adjournment allowed by the Magistrate. How far the personal attendance of the applicants was essential in the case must have been decided when, the Magistrate allowed the exemption to them. If the opposite party considered that their personal attendance was necessary on the date on which the prosecution witnesses were to be examined, he should have said so before the Magistrate granted the exemption. In any case he should have applied in good time for the personal attendance of the exempted applicants on 16.4.1959 and when he had not done so the Magistrate ought to have refused to adjourn the case.
On 12.5.1959 the opposite party put himself in the witness-box but his examination remained incomplete and the case was adjourned to 1.6.1959. On 1.6.1959 he was absent pleading that he was ill and the case was adjourned to 29.6.1959. His examination continued on 29.6.1959 but remained incomplete and the case was adjourned to 20th July 1959. On 20th July 1959 he was absent and his witnesses also were absent (because they had not been summoned). His counsel, who appeared, applied for adjournment of the case saying that he was suffering from fever and produced a Civil Surgeon's medical certificate to the effect that he was suffering from colitis. The applicant's counsel objected to the adjournment of the case. The Magistrate observed that the complaint had been filed with an ulterior motive, that the real dispute between the parties was of a civil nature, that the opposite party's statement itself made out no case against the applicants and that no further evidence wag forthcoming and dismissed the complaint and discharged the applicants.
It is this order that was set aside under Section 436, Cr.P.C. by the learned Sessions Judge. The view taken by him was that the discharge of the applicants was not covered by the provisions of Section 253(1) Cri.P.C. inasmuch as all the evidence that the opposite party intended to produce had not been taken by the Magistrate, that it was not covered by the provisions) of Section 253(2) also because the Magistrate did not hold that the charge levelled against the applicants was groundless and the adoption of dilatory tactics by the opposite party was no justification for discharging the applicants under that provision. He did not consider the provisions of Section 259, Cr.P.C. at all and since lie came to the conclusion that the discharge was not covered by the provisions of Section 253 he set it aside.
2. The learned Sessions Judge was not light in saying that the discharge was not covered by the provision of Section 253(1). It is not correct that this provision can be applied only after all the evidence that the complainant intends to produce in the case has been taken; what is required for its applicability is that as the evidence that may be produced is taken. The opposite party might have intended to produce any number of witnesses but it could not be said that so long as all those witnesses were not examined the Magistrate could not act under Section 253(1); otherwise it would mean that the applicability of that provision would depend on the sweet-will of the complainant and be can prevent its applicability simply by refusing to produce some of his witnesses. If after taking the evidence of all the witnesses that are actually produced by the complainant no more witnesses being available on the date for their evidence, the Magistrate finds that it makes out no case against the accused he becomes bound to discharge him.
What happened here is that the Magistrate took all evidence that was produced by the opposite party; no more evidence was produced before him on July 20, 1959. Whatever evidence was produced did not make out any case against the applicants and he was bound to discharge the applicants under Section 253(1). It is to be noted that the learned Sessions Judge himself did not find that whatever evidence was recorded did make out a case against the applicants. I also do not find that it did there was no evidence that the applicants had a dishonest intention at the moment of promising to sell jute and accepting its price from the opposite party. It was quite unnecessary for the Magistrate to go into the question why the opposite party did not produce more evidence; it was a matter solely for the opposite party to refrain or not to refrain, from producing more evidence.
3. Even apart from the provision of Section 253(1) Cr.P.C., I find that the discharge is fully covered by the provision of Section 259 which lays down that when the complainant is absent on the date fixed for the hearing of the case and the offence may be lawfully compounded, the Magistrate may in his discretion dls, charge the accused. An offence of Section 420 is compoundable but with permission of the court while an offence of Section 406 is not compoundable at all. Though Section 406, I.P.C., was mentioned in the complaint, the' complaint contained no allegations whatsoever constituting it. The money that was paid by the opposite party to the applicants was admittedly on account of the price of the jute; it was not at all entrusted to the applicants. The applicants, therefore, committed no criminal breach of trust in respect of that money. If they did not supply the goods, they might be liable in a criminal Court under Section 420, I.P.C., but certainly not under Section 406, I.P.C. I should, therefore, ignore the mention of the offence of Section 409 in the complaint. As regards Section 420, because it is compoundable only with permission of the court, it was sought to be argued at first that Section 259 did not apply.
It has been held by this Court in Kanhaya Lal v. Vishwanath Singh : AIR1952All91 that a complaint for an offence of Section 420 I.P.C. I can be dismissed under Section 259 and that an offence of Section 420 is one which 'may be lawfully compounded' even though it may be lawfully compounded only with, the court's permission. Sri B.C. Saxena later on gave up this argument and contended that there was no evidence in this case that the Magistrates permission had been obtained for a compromise (sic) that so long as it had not been obtained, the offence could not be said to be one which ''may be lawfully compounded.' There was no evidence in the case of Kanhaya Lal : AIR1952All91 (Supra), also that the court's permission had been obtained for a compromise and yet Section 259 was held to be applicable.
It is true that this question was not discussed by Malik C.J. presumably because it was not raised before him. I find' no Justification for the view that in respect of an offence compoundable with permission of the court, Sec, 259 can be applied only after the court's permission has been obtained and not previously. I do not agree with the contention that an offence of Section 420 I.P.C. can be said to be compoundable but cannot be said to be lawfully compoundable so long as the court's permission has not been obtained. AH that is meant by these words is that the offence may be compounded in the manner permitted by the law. If the law requires certain condition to be fulfilled before the offence is compounded, all that the section requires is that the offence may be compounded after the fulfilment of the condition. Consequently so long as the condition can be fulfilled subsequently, the offence is one which may be lawfully, compounded. The offence of Section 420 can be compounded by the applicants only with the opposite party, who alleges that he was deceived. Since he is alive the offence could on July 20, 1959 be said to be lawfully compoundable. The court's permission was obtainable on that date and after obtaining it the offence could be compounded. II therefore, hold that Section 259 applied in this case.
4. The Magistrate did not mention either Section 253 or Section 259 in support of the order of discharge. Even if he had mentioned one section, the order could be sustained if it could be valid according to the other section; when he did not mention any section at all it could all the more be sustained on the basis of either or the sections. Under Section 259 it was at his discretion to discharge the applicants having regard to the previous history of the case and the nature of the allegations made against the applicants, I am not prepared to say that he exercised his discretion erroneously in discharging them That the opposite party was absent was sufficient for the order of discharge, he was not bound to go into the question why he was absent. If he was ill and could not appear in court it was open to his counsel to apply that his personal attendance be exempted. It is immaterial that he was to be examined as a witness; Section 259 deals with the absence of the complainant as complainant and here the discharge could be said to be one on account of the absence of the opposite party as complainant.
5. Since, as I. find, the order of discharge was correct under Section 253(1) as well as under Section 259, the learned Sessions Judge could not set it aside. I allow this application, set aside the order passed by the learned Sessions Judge and restore that of the Magistrate dated July 20, 1959.