N.H. Bhatt, J.
1. This is an application by the original complainant of the Criminal Case No. 659 of 1975 of the Court of the Metropolitan Magistrate, 3rd Court, Ahmedabad, who was pleased to discharge the accused in that complaint filed by the complainant alleging that the accused had taken from him respectively on 20.3.75 and 22. 3. 75 one scooter each for the express purpose that they were to be shown to the intending purchaser as the complainant was out to dispose of one or the other of the two scooters. The learned Magistrate after examining the complainant at ex. 2 and rejecting his application for examining two persons from whose custody the respective scooter had been discovered forthwith, discharged the accused on the ground that the accused was the commercial agent of the complainant for the purpose of sale and if he had disposed of the scooters, but had not paid up the dues, only civil wrong would ensue and not the criminal offence.
2. Two points of law arise in this case and that is why this matter is being entertained by me. The learned Magistrate rejected the complainant's application for examining the two witnesses on the sole ground that the question of examining additional witnesses would arise only after and only if the charge had been framed. This is an error of law because there is nothing in Section 244 of the New Criminal Procedure Code to show that the additional witnesses not named in the complaint can be examined if and only if the charge has been framed. No doubt in the complaint the complainant has to set out the names of his witnesses, but if he has not set out, it is not an absolute bar against him. He can request the Magistrate to examine the witnesses not cited in the complaint by making out a case for non-disclosure of their names. Mr. Soni for the complainant urged that when the complaint was filed, the complainant did not know the persons to whom each of those scooters was sold away by the accused and he urged that the cause given in the application for examining the additional witnesses that their names were left out because of over-sight is the unhappy expression. On perusal of the complaint, it appears that on the day the complaint was filed, the names of these two witnesses, who were sought to be examined as additional witnesses, were not with the complainant, but some other names were there with him. The learned Magistrate, therefore, seems to have erroneously rejected the application on the wrong assumption of law that the additional witnesses can be examined only if and only after the charge is framed by the Court on the basis of the evidence of the complainant and his witnesses mentioned in the complaint. This error of law is hereby rectified.
3. The discharge order proceeds on the assumption that if a commercial agent who has been entrusted with the sale of his constituent's goods, disposes of the goods and pockets the money, he would not be guilty of any offence. This is also erroneous. The agent, including a commercial agent, who has been entrusted with the goods for the purpose of sale may be guilty of dishonest conversion, if under the terms of entrustment he is bound to hand over the sale proceeds to his constituent after deducting his commission.
4. In above view of the matter, the discharge order passed by the learned Magistrate is set aside and the criminal case no. 659/75 is remanded to the Court of the Chief Metropolitan Magistrate, who either himself will deal with the matter or transfer the case to any other Magistrate other than the Magistrate who had disposed of the matter. Rule is made absolute.