Pearson, J.:— This Rule was issued at the instance of the complainant against the accused to show cause why an order discharging the accused under Section 253 of the Cr PC, should not be set aside on grounds Nos. 2 and 3 mentioned in the petition.
2. It appears that the petition of complaint against the accused suggested offences under Ss. 406 and 424 and the burden of the complaint was that the complainant's mother had advanced to the accused a sum of Rs. 1,200 as a contribution to the complainant in a partnership firm carried on with the accused, of which the accused was managing member. Then it was said that a sum of Rs. 400 had been repaid to the petitioner's mother and that the balance of Rs. 800 was withheld and that the accused had absconded in the first place and then he started a new firm and when questioned, he denied all knowledge of the previous firm or of the advance from the petitioner's mother. The Magistrate on this part of the case has rightly dealt with the matter as being one involved in partnership accounts and till those accounts are taken it cannot be definitely ascertained whether any part of the remaining capital falls to be repaid to the petitioner's mother or not.
3. It appears however that in the course of the evidence books of the firm were produced and the complainant apparently pointed to a particular jabda item with reference to a sum of Rs. 144 odd on a particular date. That entry it was suggested went to show that sum although credited to the petitioner's mother had never in fact been received by her. The learned Magistrate had dealt with that specific item in this way: he says that this item might have formed the subject-matter of a charge of falsification of accounts under S. 477-A if the accused had been a clerk or a servant. But I understand him to say that having regard to the relationship of partners which existed between the parties no such charge can subsist in the present case. That, I think, is an erroneous view of the position. The mere fact that partnership subsisted is no answer in a properly proved case to a charge of falsification of accounts by one partner who is in charge of the books. It has been pointed out to us by the learned-advocate appearing for the accused that the evidence relating to that item, as it stands, is not satisfactory to bring home any such charge to the accused because it is based on the testimony of the complainant himself in which he says “we never received the money” and there is to denial of the receipt of the money or the receipt of a credit of the money by the complainant's mother herself. Had the Magistrate given his decision upon this item on those lines there would be nothing further to be said. But having regard to the erroneous view he has taken of this item I think that the matter should go back for this particular item to be gone into by the Magistrate upon such evidence as may be adduced by the parties. If he is satisfied that there is no case on the facts of a substantive charge under S. 377-A he will act accordingly. To that extent the Rule is made absolute.
Mallik, J.:— I agree.
B.V/R.K
4. Rule Partly made absolute.