1. The opposite party in this case charged the petitioner with an offence under Section 406, Indian Penal Code. The matter was inquired into by the Magistrate and he dismissed the case under Section 203, Criminal Procedure Code, on the ground that it was a case between partners and should be decided by the Civil Court.
2. The complainant thereupon moved the Sessions Judge, who directed a further inquiry into the matter. Accordingly a further inquiry was held by the Magistrate and he again, after taking some evidence, dismissed the complaint under Section 203, Criminal Procedure Code. The complainant there, upon again moved the Sessions Judge and the latter held that the Magistrate could not dismiss the complaint under Section 203 and that he was bound to issue process against the accused.
3. This Rule was obtained by the petitioner against that order.
4. The complainant has appeared to show cause.
5. The learned Counsel for the complainant has relied strongly upon the case of Brij Kishore Ghose v. Gopal Rai 11 C.W.N. 316 : 5 Cr. L.J. 112. That case, however, is distinguishable. There, it appears, the learned Judges understood the order of the learned Sessions Judge as directing a further inquiry under Section 457, and not that the case should be dealt with under Section 203, Criminal Procedure Code.
6. In the present case, on the other hand, it does not appear that the learned Sessions Judge made any order other than an order for further inquiry under Section 203
7. It is contended that the trying Magistrate had dismissed the case without taking evidence on behalf of the complainant, as be was of opinion that the case, being one between partners, should be tried out in the Civil Court. It is further contended on behalf of the complainant that he had several witnesses in Court and had no opportunity of examining them before the Magistrate,
8. It appears from his affidavit that some of his witnesses were present in Court; but there is no affidavit to show that his witnesses were tendered for examination, or that he was prevented by the Court from examining them.
9. The trying Magistrate has twice considered the matter and, upon such evidence as was produced before him, did not consider that a prima facie case had been made out.
10. In these circumstances, the Rule is made absolute and the order of the learned Sessions Judge directing a further inquiry is set aside.