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Debi Bux Shroff Vs. Jutmal Dungarwal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal1282
AppellantDebi Bux Shroff
RespondentJutmal Dungarwal
Excerpt:
criminal procedure code (act v of 1898) sections 203, 437 and 439 - complaint, dismissal of--presidency magistrate--jurisdiction of sigh court to order further enquiry on the merits--charter act (24 and 25 vict. c. 104) section 15. - .....jj.1. in this matter we called up the record and issued a rule to show cause why the order of the chief presidency magistrate, calcutta, dated the 23rd april 1906, dismissing the complaint of the petitioners should not be set aside on the ground that the proceedings taken before him were not in accordance with law.2. the petitioners presented their petition of complaint in the court of the chief presidency magistrate accusing the defendant of criminal breach of trust. their allegations were that they had entered into a deed of partnership with the accused and they had arranged that they should carry on the partnership business, the defendant receiving a third share of the profits. the defendant was also to get the sum of rs. 40 a month in the meantime and until the accounts were.....
Judgment:

Mitra and Holmwood, JJ.

1. In this matter we called up the record and issued a Rule to show cause why the order of the Chief Presidency Magistrate, Calcutta, dated the 23rd April 1906, dismissing the complaint of the petitioners should not be set aside on the ground that the proceedings taken before him were not in accordance with law.

2. The petitioners presented their petition of complaint in the Court of the Chief Presidency Magistrate accusing the defendant of criminal breach of trust. Their allegations were that they had entered into a deed of partnership with the accused and they had arranged that they should carry on the partnership business, the defendant receiving a third share of the profits. The defendant was also to get the sum of Rs. 40 a month in the meantime and until the accounts were adjusted. The defendant drew various sums of money in all exceeding what he was entitled to at Rs. 40 a month and hence the complaint was lodged.

3. On the complaint being lodged the Chief Presidency Magistrate directed an investigation by the Police under Section 202 the Code. The Police in accordance with the order of the Chief Presidency Magistrate made enquiries of the defendant and asked him to explain his conduct. There is nothing in Section 2/2 to prevent an investigating officer from making a full enquiry by obtaining information from the complainant and his witnesses and the defendant and his witnesses, if any.

4. On the presentation of the report by the Police, the Chief Presidency Magistrate took up the matter himself, and it appears from the explanation of the Chief Presidency Magistrate that the complainant was twice examined as required by Sections 200 and 203 of the Code, It also appears that both parties, the complainant as well as the defendant, acquiesced in the accounts being enquired into, in order to discover whether the defendant had acted fraudulently and had misappropriated any money. The accounts were adjusted, and the Chief Presidency Magistrate came to the conclusion that the case was one triable by the Civil Court and accordingly dismissed the complaint under Section 203 of the Code.

5. This Rule was issued only on the ground, as at the time it appeared to us, that the proceedings were not in accordance with law. We were under the impression that the complainant was not at all examined, and this we find is the first ground taken before us in the petition. It is now, however, clear that the complainant was twice examined. Our attention has not been drawn to any other matter showing irregularity in the proceedings.

6. It may be that the order of the Magistrate dismissing the corn-plaint was not quite proper, but, according to the authorities in this Court,, our powers under Section 203 to interfere with orders of a Presidency Magistrate are limited. 'We can only act under Section 15 of the Charter Act. We cannot direct a further enquiry under Section 437, neither have we power to interfere under Section 439 of the Code.

7. The learned Advocate-General, who has appeared in support of the Rule, has not contended before us that we can interfere under either of the Sections 437 or 439 of the Code He has rested his argument on the assumption that we can interfere with the order of the Magistrate only under Section 15 of the Charter Act. We think we cannot interfere in this case, firstly, because the question of propriety or impropriety of the order does not strictly come within the authority vested in us by Section 15 of (he Charter Act, and secondly, because the Rule is limited to the question of the regularity of the proceedings. We accordingly discharge the Rule.


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