Kulwant Sahay, J.@mdashThis is an application in revision on behalf of the complainant against the order of the District Magistrate of Gaya, discharging the accused u/s 253, Clause (2) of the Code of Criminal Procedure.
2. The complaint which was lodged before the Magistrate at Buxar was to the effect that the petitioner had sold his shares in a certain Mill at Gaya to the accused for a sum of Rs. 4,000. On the 20th November, 1922, the accused gave two cheques to the petitioner, one for Rs. 1,000 payable on the 21st November, 1922, and another for Rs. 3,000 payable on the 2nd January, 1923, drawn on the Chartered Bank of India, Australia and China. The case of the petitioner is that the first cheque was cashed on the 6th January, 1923, but the second cheque for Rs. 3,000 could not be cashed as the accused had no money in his account in the bank. The second cheque was dishonoured on the 24th January, 1923. The petitioner then served the accused with a notice to pay him the money, but before the present complaint was lodged, the accused wrote to the petitioner saying that he had changed his bank and asking him to return the cheque for Rs. 3,000 and to take a fresh cheque upon his new bank. The petitioner, however, instead of taking this new cheque lodged his complaint u/s 417 of the Indian Penal Code. The case was subsequently transferred from the Court of the Magistrate of Buxar to that of the District Magistrate of Gaya. On the 27th July, 1923, the petitioner filed an application for action u/s 6 of Act XVIII of 1891, namely, for asking the Chartered Bank to supply a copy of the statement of account of the accused. The Court thereupon made an order on the 27th July, 1923, and on the 8th August, 1923, the statement of account was received by the District Magistrate from the Chartered Bank. On receipt of this statement of account the learned District Magistrate on the 8th August found that the accused had sufficient money to pay the second cheque from the 2nd January up to the end of the month and that no offence of cheating could possibly be made out against the accused. He accordingly on that date discharged the accused u/s 253, Clause (2) of the Code of Criminal Procedure.
3. Against this order the petitioner comes in revision to this Court, and his main contention is that the date fixed for the case was the 10th August, 1923, and the learned Magistrate had no jurisdiction to take up and dispose of the case on the 8th August, 1923. No doubt the date fixed in the case was the 10th August, 1923, but under Clause (2) of Section 253 of the Criminal Procedure Code, of the Magistrate had ample jurisdiction to make an order of discharge if upon the materials then before him he was satisfied that no case of cheating could possibly be sustained against the accused. Nothing has been shown before me by the learned Vakil for the petitioner as to why this order is without jurisdiction. Clause (2) of Section 253 gives the Magistrate ample jurisdiction to make the order for discharge at any stage of the case previous to the stage referred to in Clause (1) of Section 253. On the merits also I find that the dispute between the parties appears to be of a civil nature, and it is not desirable to order the proceedings to continue in the present case.
4. This application must, therefore, be dismissed.
