1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.Criminal Misc. Petition No.1067/2005 Ram Dayal vs. State of Raj.& Anr. Date of Order ::::: February 4,2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.S.K.Gupta for the petitioner Mr.K.S.Chandel, P.P. Mr.Anil Sharma for respondent no.2. Petitioner Ramdayal filed a complaint against respondent No.2 for committing offence under Section 406 IPC. The police after investigation submitted a negative final report in the court of Addl. Chief Judicial Magistrate, Gangapur City. The petitioner filed a protest petition and the ACJM after recording the statement of the complainant petitioner and his witnesses accepted the final report and dismissed the complaint vide order dated 6.8.2004 observing that no prima facie case is made out against the accused respondent. An unsuccessful revision was presented and the revisional court i.e. learned Additional Sessions Judge, Gangapur City dismissed the revision vide order dated 2 13.5.2005. Feeling aggrieved of the orders of the courts below, the petitioner has filed this misc. petition under Section 482 Cr.P.C. Brief facts of the case are that the complainant petitioner filed a complaint with the averments that he is having a shop from which the respondent purchased cloth of Rs.2,680/- and at the same time he gave three golden chains for making one single chain of new design out of the three golden chains. It was the further case of the complainant that the accused neither gave him new chain nor returned the three old golden chains. Then a notice through an advocate was sent to him but the accused did not respond the same. In such circumstances a complaint filed before the ACJM, Gangapur City which was sent for investigation to the police under Section 156(3) Cr.P.C. which resulted in negative final report by the police. The petitioner filed a protest petition. The ACJM after recording statements of the petitioner and his witnesses, rejected the complaint as well as the protest petition in the manner stated hereinabove. Heard learned counsel for the petitioner, learned P.P. and learned counsel for respondent 3 no.2. Learned counsel for the petitioner has submitted that there is admission of the accused to have received three golden chains from the petitioner and also that of purchase of cloth. But it is his specific version as per the final report of the police that there is reference regarding purchase of cloth by the respondent but there is no receipt to this effect. There is also an entry in the record book of the complainant petitioner for handing over three chains. Learned counsel for the petitioner has further submitted that there is sufficient evidence available on record to connect the respondent with the commission of the crime and at the time of taking cognizance the court below has to see whether on the basis of the material and evidence available on record any prima facie case can be said to be made out against the accused or not. After hearing learned counsel for the parties, I have gone through the material and evidence available on the record of the case and also the impugned orders. In the instant case the record of the case 4 and also the statements recorded by the ACJM clearly reveal that the complainant at the time of purchase of cloth by the respondent also handed over three golden chains to him for making single chain of new design but the same was not returned. Therefore, prima facie a case of criminal breach of trust is clearly made out against the petitioner. The trial court has observed that entry could not have been made by the petitioner in his record book simultaneously when the clothes were purchased by the respondent, which is not a correct procedure. The trial court should not have proceeded on presumption if there is evidence available on record and there is an admission of the respondent then it was for the respondent to have rebutted the allegation against him. Therefore, I am of the opinion that the order dated 6.8.2004 passed by the ACJM rejecting the complaint and protest petition of the petitioner and also the order dated 13.5.2005 passed by the learned revisional court are not correct and legal. Hence, both these orders deserve to be quashed. Consequently, this misc. petition is allowed and the impugned orders of the courts below are, hereby quashed. The matter is remanded back to 5 the trial court for afresh decision in the light of the statements of the witnesses and also the material and evidence available on record. (Bhanwaroo Khan),J. bairwa