JUDGMENT 1. - This is an application under section 482 Cr. P.C. for setting aside the order of taking cognizance against the petitioner for the offence under section 409 IPC by the Munsif and Judicial Magistrate, Suratgarh. by his order dated 30th May, 1981 which has been upheld by the Additional Sessions-Judge, Raisinghnagar vide his order dated 17th April 1982. 2. This application has arisen in the following circumstances, 3. A charge-sheet was presented by the Police Station, Suratgarh against the accused Nemi Chand for the offence under section 409 I.P.C. The accused Nemichand use to take money in advance for making payment to the labour. He was serving in this manner from 30th Jan. 1973 to 4th December, 1975. The prosecution case is that on 9-6-75 he issued an authority letter in favour of Balbir Singh, the present petitioner for obtaining a sum of Rs. 10,000/-which was paid to him and according to the prosecution the amount has been defalcated by the accused Nemichand. The trial proceeded against the accused Nemichand, and statements six witnesses were recorded. The present petitioner was P. W. 6 whose statement was recorded on 7-3-1981. An application was moved on behalf of Nemichand on 23-1-1980 that cognizance be also taken against Balbir Singh and he may not be examined as a witness. However, his statement was recorded and after recording of his statement, the learned Magistrate prima facie found that an offence under section 409 IPC has been committed by the witness Balbir Singh. So cognizance for said offence was taken against him. The Magistrate recorded a detailed order as to how he finds a prima facie case against Balbir Singh (PW 6) The present petitioner was unsuccessful before the learned Additional Sessions Judge and so he has moved this application under section 482 Cr.P.C. 4. I have heard learned counsel for the applicant and the learned public prosecutor for the State and also the learned counsel for the accused Nemichand. 5. From the prosecution case it is prima-facie made out that a sum of Rs. 10,000/- was paid to Balbir Singh on 9.6.75 in pursuance of the authority letter executed in his favour by the accused Nemichand. The question is whether this amount received by Balbir Singh has been paid by him to the accused Nemichand. A receipt Ex. 5. From the prosecution case it is prima-facie made out that a sum of Rs. 10,000/- was paid to Balbir Singh on 9.6.75 in pursuance of the authority letter executed in his favour by the accused Nemichand. The question is whether this amount received by Balbir Singh has been paid by him to the accused Nemichand. A receipt Ex. D. 1 has been produced by Balbir Singh during investigation but no opinion has been expressed by the expert as to whether it bears the signature of Nemichand. The version of Balbir Singh is that the receipt Ex. D. 1 is in his hand but by the same ball-pen Nemichand had signed it. His statement further is that after receipt of money it was handed over to Nemichand who had made an entry in his personal register in his presence and so far his own register in his is concerned he has admitted that he did not make any entry of Rs. 10,000/- in his register. It has also come on record that Ex. D. 1 saw the light of the day for the first time on 21.7.76 when an enquiry was being conducted against Nemichand. Earlier to that, it was not brought to light. Another register of the accused Nemichand has come on record which is Ex. D.4. 1 have not been referred to any entry of Rs. 10,000/-on 9.6.75 in the register Ex. 4. In respect of his own register Balbir Singh was stated as to how he has maintained it. Some papers have been added and some entries have been made at a time in it. Considering all these circumstances appearing on the record, in my opinion, the learned Magistrate was justified in taking cognizance against the petitioner for the said offence. It may be stated that originally in the First Information Report Balbir Singh was cited as an accused but subsequently the police submitted charge sheet only against Nemichand. But that does not in any way affect the power of the Court to take cognizance in case the Magistrate feels that there is a prima facie case against a particular person though he may be a witness. But that does not in any way affect the power of the Court to take cognizance in case the Magistrate feels that there is a prima facie case against a particular person though he may be a witness. Now in what manner, the trial will proceed, will be for the Magistrate to decide but so far as the order of taking cognizance is concerned, to my mind, there is justification for the same and both the courts were right in finding that it is a fit case for taking cognizance against the petitioner. 6. This petition therefore is devoid of any force so it is hereby dismissed. *******