1. This Rule was granted to the petitioner upon the first and the second grounds specified in his petition. The first ground was that the learned Magistrate had erred in rejecting the petition of complaint without hearing the witnesses of the complainant present in Court and the second ground was that the learned Magistrate had erred in holding that the facts, as disclosed in the petition, did not make out a case of cheating.
2. The facts, as set forth in the petition, are somewhat peculiar. The petitioner charged certain persons under Section 498 of the Indian Penal Code with having abducted his wife. While the case was still pending, Ram Das, the opposite party No. 1, approached him with the proposition to compromise the matter out of Court for a money consideration. The petitioner acquiesced in the proposal and filed a petition withdrawing the complaint whereupon the accused here discharged by the Magistrate. Subsequently the petitioner approached Ram Das with a request for the money promised, but he was put off from time to time on various grounds. Finally losing patience, he filed a petition in Court charging Ram Das and the other parties to the case with breach of trust and cheating.
3. The learned Magistrate examined the petitioner and observed that the complainant could not explain his case and directed him to bring his witnesses on 31st October. On that day the complainant did not appear and the petition was dismissed. On 1st November he applied for revival of the case and 12th November was fixed for the hearing when the learned Magistrate, according to the petition, without examining the witnesses of the complainant, who were present in Court, dismissed the application with the following remark: 'The facts will not make out a case of cheating even if true.'
4. In our judgment this Rule should be made absolute upon the ground that the petitioner should have been given an opportunity of establishing the truth of his allegations by having his witnesses' evidence tested by the learned Magistrate.
5. Without, therefore, expressing any opinion on the merits, we make the rule absolute and remit the case to the Court below for disposal according to law.
6. I agree.