JUDGMENT

Mosely, J - This is an application in revision against an order of the Seventh Additional Magistrate Mandalay, in his Criminal Trial No. 9 of 1934 where he directed process to issue against the accused, the present applicant Mr. Vardon, a Higher Grade Pleader of Mandalay, on a complaint by Capt. Hearsay under Section 409, I.P.C. Capt. Hearsay is the brother-in-law and agent with power of attorney of Mr. E.A. WilKams, and Mr. Vardon had been collecting for some years certain moneys due to the estate of Mr. William's father to which Mr. Williams had obtained letter of administration. It is not stated for how long this has been going on, but the accounts of Mr. Vardon filed go from September 1926 to October 1933, when what is headed "Final statement of accounts" was furnished by Mr. Vardon. The item complained of in that account is one of 30th December 1929 where a cash payment made to Mr. Williams "on the date of the previous settlement" of Rs. 250 is debited against the collections made by Mr. Vardon on behalf of the estate. All other payments made, apparently to Mrs. Williams, in this account are shown as having been by cheque. It is not said when the previous statement was.

2. Capt. Hearsey was examined on oath as complainant, and said that Mr. Vardon subsequently claimed that the payment in question was made to Mr. and not Mrs. Williams. He said that Mr. Williams denied the receipt of the money, and that Mr. Vardon could not produce a receipt to support the payment. Whether the complainant had any personal knowledge of the matter is not apparent. It is clear however that the presence of the real complainant Mr. Williams could easily have been procured, and he was present on a subsequent occasion--the date which on the accused was directed to appear. There is an entry in the Diary of that date to the effect that Mr. Vardon again explained that the payment was to Mr. Williams and that Mr. Williams stated that he did not receive the money in question. This statement however could not be taken in lieu of a proper complaint by Mr. Williams. As is pointed out in Sohoni's Commentary on the definition of "complaint" in Section 4, Criminal P.C. p. 17 Edn. 13, 1931, complaints may generally be made by any person aware of the commission of an offence, and not necessarily by the person injured. The person making a complaint need not himself have personal knowledge of the facts constituting the complaint, but before issuing process on such allegations the Magistrate should satisfy himself on proper material that a case for issue of process has been made out. It was clearly desirable in the present case that the Magistrate should have acted under Section 202, Criminal P.C. and nave delayed issuing process before he was satisfied, at least, by an examination of Mr. Williams that there was proper material for proceeding.

3. It is also contended by the applicant in revision that on the face of the complaint itself no criminal offence was disclosed. I do not propose here to remark on this further than to say that the Magistrate should satisfy himself by a proper examination of the complainant, and if necessary, by further inquiry that there is reason to believe that a criminal offence has been committed. I will only draw the Magistrate's attention to the rulings to the effect that in such enquiries the accused has no right to be present and he must make up his mind from the examination of the complainant and, if necessary, from further examination of his witnesses: See on this Baidya Nath Singh v. Muspratt (1887) 14 Cal. 141 and Bhim Lal Sah v. Bisa Singh (1913) 40 Cal. 444. The Magistrate's order directing summons to issue to Mr. Vardon will be set aside in revision and it will be directed that he proceed on the lines indicated hare, and make a preliminary inquiry under Section 202, Criminal P.C.