JUDGMENT
Om Parkash, J.
(1) This revision petition is directed against an order of the learned Additional Sessions Judge, whereby on revision, he set aside an order of discharge passed by the Magistrate 1st Class, and directed further enquiry.
(2) Sajjan Singh, a partner of Messrs Jullundur Body Builders Rohtak Road, Delhi (hereinafter referred to as ” Jullundur Body Builders’ ) had, on the 17th January, 1966, submitted a report to the Superintendent Police, C 1. D., Crime Branch, Delhi, alleging that the petitioners, who were Directors of Messrs B. Dharam Singh & Company Private Ltd. had cheated the Jullundur Body Builders. It was stated, in the report, that on the 8th May 1965, Messers Swayamber Lal Motor Service (Private Ltd.) Indore had delivered to the Jullundur Body Puilders two Leyland Bus chasis for building bus bodies, that the Jullundur Body Builders had agreed to build the bus bodies on payment of Rs. 26,000 that a sum of Rs. 1000 was paid on the 17th April 1965 and another sum of Rs.7000 on the 21st May, 1965 towards the cost of construction and the balance of Rs.l8,000 was to be paid at the time of delivery of the buses, that the two buses were ready on the 30th June, 1965 and that on the same day, the petitioners had approached Sajjan Singh to deliver the buses to Messers Swayamber Lal and bad agreed that they would make the payment ofRs.l8,000to the Jullundur Body Builders incase Messers Swayamber Lal failed to make the payment before the 15th July, 1965, that on the basis of the assurance of the petitioners, the Jullundur Body Builders had delivered the two buses to Messrs Swayamber Lal on the 30th June, 1965, that Messrs Swayamber Lal did nto makethe payment of Rs.l8,000 on the 15th July, 1965 as stipulated, that the Jullundur Body Builders approached the petitioners to make the payment, that the petitioners had, on the 28th July, 1965, issued to the Jullundur Body Builders, a cheque for Rs. 18000 on the Lakshmi Commercial Bank but that cheque was dishonoured, that thereupon the petitioners issued two cheques for Rs. 10,000.00 and Rs.8,000.00 on the 8th September and the 13th September 1965 respectively, but those two cheques were also dishonoured, that the petitioner again issued two cheques for Rs. 13,000 and Rs.5000.00 on the 26th October, 1965, but those cheques were also dishonoured, that the conduit of the petitioners showed that the intention of the petitioners was dishonest from the very start and they had fraudulently and dishonestly induced the Jullundur Body Builders to deliver the the two buses to Messers Swayamber Lal on the false assurance that they would make payment.
(3) On the above allegations, it was prayed that action be taken against the petitioners under section 420, Indian Penal Code. A case under section 420, Indian Penal Code, was registered at Police Station, Sarai Rohilla. on the 24th May, 1966, on the basis of the report submitted by Sajjan Singh.
(4) During the course of investigation it was discovered that Messrs Swayamber Lal had, on the 23rd June, 1965, issued a cheque for Rs. 13,000.00 in favor of Messrs B. Dharam Singh and Co. for payment to Jullundur Body Builders and that the company had encashed the cheque but had nto paid the amount to Jullundur Body Builders. It was, further, discovered that a cheque for for Rs. 5000.00 was also issued in favor of B. Dharam Singh and Co. by Messrs Swayamber Lal for payment to Jullundur Body Builders.
(5) After investigation, a challan under sections 420/406, Indian Penal Code, was filed against the petitioners,
(6) The learned Magistrate, after considering all the material collected by the police, came to the conclusion that there was no prima facie case against the petitioners either under section 406 or under section 420, Indian Penal Code. He discharged the petitioners.
(7) The State did nto file any revision petition against the order of discharge, but Sajjan Singh went up in revision. The learned Additional Sessions Judge, who had heard the revision petition, was of the view that there was prima fade case under both the sections namely, sections 406 and 420, Indian Penal Code, against the petitioners. He remitted the case to the Magistrate for further enquiry.
(8) The petitioners have come up in revision to this Court, against the order of the learned Additional Sessions Judge, directing further enquiry.
(9) The prosecution case, under section 420, Indian Penal Code, was that the petitioners had, by a false assurance, that they would pay the amount of Rs. 18,000.00 induced the Jullundur Body Builders, to deliver the two buses to Messrs Swayamber Lal and had nto paid the amount as agreed. The assurance about payment was contained In a letter which reads :- “B.Dharam Singh & Co. Private Ltd, Molor Dealers & Financiers, 3/5. Asaf Ali Road,New Delhi. LS: GEN: 63/1426 . 30th June, 1965. M/s Jullundu; Body Builders, Rohtak Road, Delhi. Dear Sirs, We understand that you have constructed two bus bodies on Leyland 203 chassis in the account of M/s Swayamber Lal Motor Service Private Limited, Indore. They have already paid you Rs. 8, 000.00 wards the advance on these bodies. According to them, the balance amount is Rs. 18,000 payable to you before 15th July 1965. Incase they do nto do so we will be. responsible to make you the payment on their behalf. As such you are requested to deliver the vehicles to them. Thanking you. Yours faithfully, For B. Dharam Singh & Co. Private Ltd., (Sd.) J. S. Sawhney Director.”
(10) The letter shows that Messers B. Dharam Singh and Co. bad guaranteed the payment of Rs. 18,000 due from Messers Swyamamber Lal to the Jullundur Body Builders. It is nto disputed that the amount was nto paid as agreed. It is not, further, disputed that the petitioners had issued cheques in favor of Messrs Jullundur Body Builders in the amount of Rs. 18,OCO thrice, but the cheques were dishonoured. The Magistrate was of the view that the failure to pay the amount as agreed gave rise only to a civil liability and did nto show that intention of the petitioners was dishonest. The Magistrate was, further, of the view that the issue of cheques led to the inference that the petitioners had the intention to pay the amount. The learned Additional Sessions Judge took the view that the Jullundur Body Builders had parted with the possession of the two buses on the assurance of Messrs B Dharam Singh and Co. that they would pay the balance and that as the obligation was nto honoured, the petitioners were prima facie guilty of cheating. The view of the Magistrate cannto be characterised as unreasonable and should nto have been interfered with by the learned Additional Sessions Judge.
(11) The case of the prosecution under section 406, Indian Penal Code, against the petitioners, was that one cheque for Rs. 13,000 was issued in favor of Messrs B. Dharam Singh & Co. on the 23rd June, 1965 with instructions that the amount be paid to the Jullundur Body Builders. The further case of the prosecution was that another cheque of Rs. 5,000, in favor of Messrs B. Dharam Singh and Co., was issued with the same instructions in February 1966. The Magistrate was of the view that there was no prima facie evidence that the amounts of Rs. 13,000 and Rs. 5.000 as alleged by the prosecution, were entrusted with Messrs B. Dharam Singh and Co. for payment to Jullundur Body Builders. In this connection, the learned Magistrate pointed out that the cheque of Rs. 13,000 was encashed by Messrs B. Dharam Singh and Co. on the 24th June 1965 and was credited to the account of Messrs Swayamber Lal with which the former had business transactions running into lakhs of rupees. The Magistrate, further, pointed out that the cheque of Rs. 13,000 was nto accompanied by any note or covering letter that the amount should be paid to the Jullundur Body Builders. It was also pointed out by the .Magistrate that Roor Singh, who had issued the cheque of Rs. 13,000 was present in Delhi on the 23rd June 1965 and that if the amount was meant to be paid to the Jullundur Body Builders, he could have straight away issued the cheque in the name of Jullundur Body Builders and had handed them over the cheque. Another circumstance, pointed out by the Magistrate, against the contention that the amount of Rs. 13,000 was entrusted to Messrs B. Dharam Singh and Co. was that the guarantee letter, dated the 30th June. 1965, which mentioned that a balance of Rs. 18.000 was due to Jullundur Body Builders and that Messers D. Dharam Singh and Co. would pay the amount in case Messrs Swayamber Lal failed to pay by the 15th July. 1965, was taken by Roor Singh to Jullundur Body Builders and that if the amount of Rs. 13,000 had been entrusted to Messrs 3. Dharam Singh and Co for payment to Jullundur Body Builders, Roor Singh would have pointed out this to Messrs Dharam Singh and Co. and would have insisted the payment of Rs. 13 000 in cash to Jullundur Body Builders. The note in the account books of Messrs Swayamber Lal that the cheque was issued for paying the amount to Jullundur Body Builders, according to the Magistrate, might have been inserted afterwards and was nto worthy of reliance.
(12) So far as the cheque of Rs. 5,000 was concerned, the learned Magistrate pointed out that there was no entry about the issue of the cheque of Rs. 5,000in favor of Messrs B. Dharam Singh and Co. In this Court, the learned counsel for the petitioners relied upon a covering letter with which the cheque of Rs. 5,COO is alleged to nave been sent to Messrs B Dharam singh and Co. That covering letter could have been prepared at any time. The learned Magistrate also pointed out that the cheque of Rs. 5,000 was never cashed.
(13) Another circumstance which is applicable to both the amounts is that amounts of Rs. 13,000 and Rs. 5,000 were nto shown in the Khata of Jullundur Body Builders in the books of account of Messrs Swayamber Lal.
(14) The learned Additional Sessions Judge brushed aside the reasons given by the Magistrate for holding that the amount of Rs. 18,000 was nto entrusted to the petitioners and there was no prima facie evidence for an offence under Section 406, Indian Penal Code, with the remark that the Magistrate should nto have discussed the evidence in detail and should have relied on the entry in the account books that the cheque of Rs 13,000/. was issued for the amount being paid to Jullundur Body Builders. It is true that at the time of framing the charge, the material collected by the prosecution is nto to be minutely scrutinised and the Court is nto to go into the probabilities or improbabilities of the case but it is also true that the Court is to consider the material in order to see whether it discloses a prima fade case or not. The Magistrate did nto contravene this principle. The learned Additional Sessions Judge has also remarked that as the petitioners were also Directors of Messrs Swayamber Lal.they might have manipulated entries in the account books, in collusion with other Directors. This observation is nto borne out by the material collected by the police. Lekhraj, Accountant of Messrs Swayamber Lal and Roor Singh, who had issued the cheques, in their.satements, under section 161. Code of Criminal Procedure, stated that since the 5th December, 1963, the control of Messrs Swayamber Lal was in the hands of Sarv-Shri Roor Singh, Gurdev Singh, Harbani Singh son of Sucha Singh and Harbans Singh son of Man Singh, who had paid Rs. 5,75,000 to the petitioners for the purchase of shares in the concern. Roor Singh also stated that the petitioners had failed to transfer the shares as agreed and that a notice had been served on the petitioners in this connection. It is clear that there could be no collusion between Roor Singh and the petitioners.
(15) It is well settled that the powers of revision, conferred under section 436, Code of Criminal Procedure, are to be exercised sparingly and with caution and circumspection to correct some patent error which might have occasioned miscarriage of justice. The order of discharge, passed by the Magistrate, did nto suffer from any such manifest error. The learned Additional Sessions Judge was nto justified in interfering with the order, on revision.
(16) The revision petition is allowed. The order of the learned Additional Sessions Judge, directing further enquiry is set aside, and the order of the Magistrate is restored.