1. In this case the petitioner was tried on a charge of cheating by Babu M.N. Haldar, Honorary Magistrate of Howrah, and was discharged under Section 250 of the Criminal Procedure Code. It was alleged on behalf of the prosecution that the accused had executed a kabala in favour of the complainant and presented it for registration, but took it back from the Sub-Registrar before registration on the pretext that he could not understand whether it was a mortgage or a kabala, and having thus obtained possession of the document, he tore it to pieces.
2. The learned Honorary Magistrate discharged the accused finding that no consideration had passed and, therefore, the accused was justified in destroying the document.
3. The learned Sessions Judge has, however, set aside the order of discharge and directed a further enquiry into the case.
4. This Rule was obtained on behalf of the petitioner calling upon the opposite party to show cause why the order for further enquiry should not be set aside.
5. We have heard the learned Vakils on both sides and we are of opinion that in this case the prosecution should not be allowed to proceed. The learned Sessions Judge expresses no opinion on the question as to whether the consideration had passed or not. It is not said that the kabala was delivered to the purchaser, and if before it was delivered, it remained the property of the petitioner, the question arises whether it was a valuable security within the meaning of Section 477, Indian Penal Code. As regards the charge of cheating, the person who was heated was the Sub-Registrar himself and he does not complain. In fact when he was asked to report on the case by the Honorary Magistrate, he reported in favour of the petitioner. We are also informed that a civil suit has been filed by the complainant for specific performance of the contract. Having regard to these circumstances, we think it is inadvisable that a charge under Section 420 or Section 477 should be enquired into by a Criminal Court.
6. We, therefore, make this Rule absolute.