Avadh Behari ( 1 ) THIS is a revision petition against the order of Met. Mgte. dt. 30. 1. 82. The petitioner is the complainant. He filed a complaint against the respondent, Madhavprasad G. Poddar, u/s 409 IPC. It was alleged that the petitioner was interested in buying a boiler. The respondent agreed to act act as a commission agent in the transaction of purchase on the" term that he would charge commission at the rate of 2 per cent from the petitioner. The petitioner paid Rs. 22,000. 00 to the respondent as advance money. But the transaction fell through. The respondent informed the petitioner that the seller had sold the boiler to another party. On this the petitioner asked for the return of Rs. 22,000. 00. The respondent promised to return the money but did not do inspite of repeated demands. The petitioner s case is that the respondent has dishonestly misapproprited the money and has converted it to his own use and has thus committed an offence u/s 409 IPC. ( 2 ) THE petitioner in support of his case filed letters written by the respondent in which he had admitted the receipt of money and had promised to return it. The petitioner also examined himself in support of the complaint. The learned magistrate dismissed the complaint holding that he did not find any dishonest intention from the letters of the respondent and in any event it was a case of civil liability. From the order ofdismiisal this revision has been preferred. ( 3 ) THE respondent is an agent. He is in a fiduciary capacity. He is bound to account for what he he has received. He admitted the receipt of money in the letters he wrote to the petitioner. He also agreed to it. He asked for time to repay in his letter dt. 23. 2. 81, but did not do so. A registered notice dt. 16. 6. 71 was also sent to him calling upon him to pay Rs. 22,000. 00. Yet he did not pay. This is what was alleged in the complaint. ( 4 ) IN my view the petitioner has made out a prima facia case. The dismissal of the complaint on the ground that there was no sufficient ground for proceeding with it is not justified. The learned magistrate ought to have issued the process. 22,000. 00. Yet he did not pay. This is what was alleged in the complaint. ( 4 ) IN my view the petitioner has made out a prima facia case. The dismissal of the complaint on the ground that there was no sufficient ground for proceeding with it is not justified. The learned magistrate ought to have issued the process. Failure to account is prima facia evidence of dishonest intention when entrustment is admitted by the agent. All that the magistrate has to consider is, whether thera is prima facia evidence of a criminal offence which, in his judgment, calls upon the alleged offender to answer. (In the matter of Ganesh Narayan Sathe (1981) ILR 13 Bom. 590. If the allegations contained in the complaint disclose a criminal offence, the magistrate should not dismiss the complaint simply because the case is of a civil nature, Nilratan Sen v. Jogesh Chundra 1896 ILR 23 Cal 983 (986 ). ( 5 ) IN this case the magistrate has dismis- sed the complaint on the ground that it does not disclose a dishonest intention on the part of the respondent. He said this: intention of the respondent has always been to refund the money taken from the complainant and he has never intended to retain the money with him. This is another matter that the respondent has not been able to arrange for and refund the amount to the complainant. Bat the intention of the respondent to refund the amount is apareat from the letters. " I cannot endorse this view. This is not a proper approach. This is taking the probable Jefence of the accused into account. This is equating the complaint with a criminal trial. The magistrate has to act on the material before him at the time of issuing process without considering any possible defence. The accused will have an opportunity to have his defence considered after the process has been issued and he appears in pursuance of that process. (B. C. Khatri v. Peshwam, AIR 1968 Bom 39 ). ( 6 ) IT is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the money of the principal. The question is one of intention and not a matter of direct proof. (B. C. Khatri v. Peshwam, AIR 1968 Bom 39 ). ( 6 ) IT is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the money of the principal. The question is one of intention and not a matter of direct proof. But refusing to pay an admitted amount received by a person in the capacity of an agent is a strong circumstance against the accused person. In the case of an agent charged with misappropriating the money of the principal the elements of criminal offence of misappropriation will prima facie be established if the complainant shows that the agent received the amount, that he was under a duty to account to the principal, and has not done so. If the failure to account was due to facts within the agent s knowledge it is for him to explain. It is not the law of this country that the prosecution hag to eliminate all possible defences or circumstances which may exonerate the accused. If these facts arc within his knowledge he has to prove them. All that the prosecution has to establish is a prima facie case in the first instance. This has been authoritiatively settled by the supreme Court in Krishan Kumar v. Union of India AIR 1959 S. C. 1290. A decision of Fazi Ali, J: in Harakrishna Mahaiab v. Emperor. AIR 1930 Patna206 (D B.) was approvingly referred to as laying down the correct law. ( 7 ) IT is true that a court of justice "cannot reach the conclusion that the crime has been committed unless it be a just result of the evidence that the accused in what was done or omitted by him was moved by the guilty mind, "per (Lanier v. Rex(1914) A. C. 221 ). But evidence will be adduced at the trial when in answer to the process the accused appears and gives his defence. It is in the accused s power to produce evidence of an honest intention. If a matter be within the knowledge of the accused and unknown to the prosecution the onus of proof is cast upon the former. As was said in a Lahore case ; proof of receipt and failure to account "is is a long way towards proof of misappropriation but not the whole way. If a matter be within the knowledge of the accused and unknown to the prosecution the onus of proof is cast upon the former. As was said in a Lahore case ; proof of receipt and failure to account "is is a long way towards proof of misappropriation but not the whole way. " (Ghulam Haider vs. Emperor, AIR 1938 Lahore 934 ). In another case it was said that it is only on proof on non-payment of money received by by the accused tnat "presumption will arise of misappropriation" (Bhikhchand v. Emperor, AIR 1934 Sind 22 if it is shown that the money entrusted to the accused for a particular purpose was not returned by him in accordance with his duty, it lay on him to prove the defence. That his conduct was honest is for the accused to show. This important principle was overlooked in this case. The principle of presumption and burden was not kept in judicial view. Section 203 and 204, Code of Criminal Procedure confer a discretion on the magistrate to determine whether he should dismiss the complaint or proceed with it. The expression sufficient ground used in section 204, Cr. P. C. means that a prima facie case has been made against the accused. The test is whether there was sufficient ground far conviction. Where there is prima facie evidence, even though the person charged of the offence in the complaint might have a defence the matter has to be proceeded with and the issue of process cannot be refused on that ground. (Nirmalijit v. State of W. B. AIR S. C. 2639, see also Mahabir Prusad v. Mohlnder Kumar Vallabhil, 1931 Chandigarh L. R. 241 ). ( 8 ) 1 think the complaint discloses an offence u/s 409 Indian Penal Code and the petitioner has made out a case for issue of process. The accused ought to have been summoned on the allegation of the complainant, supported as he is by the letters written by the respondent himself. At the initial stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in this conviction. ( 9 ) IT seems to me there was sufficient evidence before the magistrate which made out a prima facie Case against the accused. At the initial stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in this conviction. ( 9 ) IT seems to me there was sufficient evidence before the magistrate which made out a prima facie Case against the accused. Whatever may be said in favour of the accused it was certainly not a case of refusal of process. The scheme of section 203 suggests that the inquiry envisaged there, is for the purpose of ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The statute does not say that a regular trial adjudging the truth or otherwise of the person complained against should take place at that stage, for such a person called upon to answer the accusation made against him only when a process has been issued and he is on trial. ( 10 ) SECTION 203 is in two parts. The first part lays down the material which the magistrate must consider. The second part says that after considering the material there is, in his judgement no sufficient ground for proceeding, he may dismiss the complaint. Now the supreme court has laid down the test. The test is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether there is prima facie evidence, even though a person charged of an offence in the complaint might have a defence, the matter has to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Unless therefore the magistrate finds that the evidence led before him is self- contradictory intrinsicially untrustworthy, process cannot be refused if that evidence makes ont a prima facie case. (See Chandra Deo v. Prakash Chandra, AIR S. C. 1430 ). Appling this test I must hold that the impungned order of dismissal is not justified. ( 11 ) FOR these reasons the revision petition is accepted. The case is remitted to the learned magistrate to issue process and try the complaint in accordance with law. .