1. This is a reference by the learned Sessions Judge of Aligarh. The facts out of which the reference arises are these. The complainant Chhidda had to deposit a sum Rs, 615 to complete the purchase money of a Court auction sale which had been concluded in the name of his wife. He had only Rs, 415 with him and wished to borrow the remaining Rs. 200 from the applicants Puran and Hoti. They agreed to advance it on condition that Chhidda made over the Rs. 415 he had with him, that they made the entire deposit and that the house was transferred into their names. Chhidda consented to this, and an application was made, but the Court refused it. This happened on 21st July.
2. Chhidda owed Puran and Hoti a sum equal to the amount which he had placed in their hands. They seem to have retained the Rs. 415 against their debt. On the following day he filed a complaint against them which was dismissed the same day under Section 203, Criminal P.C. on the ground that no criminal offence was established. On 24th July they filed a civil suit against him claiming Rs. 467 due to them from him. On 6th August while this suit was pending, he filed a fresh complaint which was entertained by a different Magistrate.
3. The learned Sessions Judge has made this reference on three grounds, two of them technical and one a ground of substance. The technical grounds are that the second Magistrate could not entertain a fresh complaint unless the order dismissing the original complaint had first been set aside under Section 437, Criminal P.C. The learned Judge relies on an old ruling in Queen-Empress v. Adam Khan (1899) 22 All 106, but this ruling has not been followed in later cases. Ram Bharos v. Baban AIR 1914 All 79 and William Ceil Keymer v. Emperor AIR 1914 All 179 show that the opposite view has prevailed in later cases. The second ground is that the accused had no proper opportunity of producing their witnesses. On this point also I am not disposed to accept the Sessions Judge's view. The application for summoning witnesses was put in later, and the accused got the summons issued on their own responsibility, it being understood that the Court would not adjourn the case if the witnesses did not attend.
4. On the third point the reference must in my opinion prevail. The accused retained the money against the debt which was owing to them from Chidda and there is nothing to show that in doing this they acted dishonestly. The Special Magistrate does not appear to have applied his mind to this point at all. I agree with the learned Sessions Judge that the facts do not establish a case under Section 406, Indian Penal Code.
5. I accordingly accept this reference and set aside the conviction of the applicants. The fine, if paid, will be refunded.