JUDGMENT Vikramaditya Prasad, J. 1. This criminal revision is directed against the order dated 13.1.2003 in C.P. Case No. 325/02 passed by Sri J.P.N. Pandey, Chief Judicial Magistrate Bokaro, whereby and whereunder the learned Magistrate dismissed the case of the revisionist-complainant under Section 203, Cr PC, finding that there was no prima facie case against the accused person. 2. The question mainly to be answered in this revision is whether an accused can set up his defence and produce some documents during inquiry by the Magistrate in proof that the case of the complainant was false and can such a document be considered by the Magistrate along with other documents produced by the complainant and whether on the basis of such a document produced by the accused, can the Magistrate say that the complainant suppressed some matters? 3. The aforesaid question arises out of the short facts of the case that Suresh Kumar Tekriwal was one of the partners of firms namely Akchhay Steels, M/s. Vishwanath Transport, M/s. Chandra Transport Agency, M/s. Ambika Steels, M/s. Abhishek Steels, M/s. Anjani Steels. As per partnership agreement bank account was opened in the Vijaya Bank for the firms Akchhay Steels and it was a condition, that the account shall be operated under the joint signature of both the parties but with the collusion of other accused persons, Suresh Kumar Tekriwal has withdrawn Rs. 17,20,789/- from the period 3.8.1999 to 28.2.2000 by 48 cheques. In this way, all the accused persons have misappropriated the amount by committing loss to the complainant. During continuation of partnership of M/s. Akchhay Steels and M/s. Vishwanath Transport, a dispute arose between the parties and that was referred to the sole arbitrator Sri B.N. Prasad, who has passed an award on 20.11.2000. Subsequently, Execution Case No. 5/01 was filed for execution of the said arbitration award in the Court of Sub-Judge 1st Bokrao, which ended in compromise on 1.4.2002. During the course of arbitration proceeding, business of the firm was continuing and income from that business was not included in the claims before arbitration. Suresh Kumar Tekriwal was in office of the firms and he was dealing with all the transactions in violation of partnership agreement and during pendency of the arbitration proceeding, he received total amount of Rs. 15 crores, 261 lakhs from different firms and that amount was not distributed amongst the partners. Suresh Kumar Tekriwal was in office of the firms and he was dealing with all the transactions in violation of partnership agreement and during pendency of the arbitration proceeding, he received total amount of Rs. 15 crores, 261 lakhs from different firms and that amount was not distributed amongst the partners. Similarly, he further received Rs. 20 crores 57 lakhs from different firms and that amount was also not distributed amongst the partners for which legal notice was served to the accused persons and he replied it by denial of all facts. Hence, this complaint. 4. It appears that during the course of inquiry, the accused appeared and his presence during inquiry was challenged by the complainant. One of the accused, as it appears, is Vijaya Bank. He appeared in the Court and made certain prayer. It appears from the order dated 7.1.2003 that the objections raised by the accused were heard. Learned Magistrate held that "at this stage, accused has got no locus standi and cannot be heard. In this way I am of the opinion that the accused cannot participate in the inquiry proceeding. According in inquiry proceeding, objections by the accused is disposed of. Heard the complainant. Put up on 13.1.2003 for order." 5. In second paragraph of page 6 of the impugned order, the learned Magistrate records as follows :-- "Another paper has already been filed by the side of accused which bears the signature of this complainant and his advocates Sri H.P. Singh and A.K. Srivastava of dated 6.3.2002 in which this complainant has mentioned that "I Birendra Singh certify that the above account of final settlement between me and Sri Suresh Kumar Tekriwal is prepared and finalized in my presence and I fully agree to the amount derived as amount of final settlement which I have received in full. I hereby declare that I shall make no claim against Sri Suresh Kumar Tekriwal or any of his firms in future." Further the learned Magistrate in paragraph 2 of page 7 of the impugned order wrote as follows :-- "Though the above paper dated 6.3.2002 has been filed on behalf of defence to show the settlement of all grievance, but it is clear that complainant is silent about this paper. It is also clear that the complainant has suppressed this paper with some ulterior motive because this paper shows about full payment and satisfaction about the complainant against accused No. 1 and his all firms." Relying on a decision reported in 2000 (2) PLJR 52 -54, the learned Magistrate dismissed the complainant case. 6. Learned counsel appearing for the revisionist argued that during inquiry, the accused has got no locus stand! and he has no right to participate in the proceedings albeit subject to his defence and in this context, he relied upon the decisions reported in BBJC 1999 413 Anil Kumar Sah and Ors. v. Nagendra Singh; 1976 (3) SCC 736 Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1963 SC 1430 Chandra Deo Singh v. Prakash Chandra Bose @ Chabi Bose; and AIR 1930 Madras 443 Nogi Reddy v. Emperior. On notice, the accused appeared and was represented by his advocate. During argument, the learned counsel appearing for opposite party No. 2, Mr. Jerath, contested the argument of the learned counsel appearing for the revisionist firstly arguing that an accused has a right to bring to the notice of the Court certain facts which belies the case of the complainant and he went on to argue that in the case of Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 , it has been settled that in cases of civil dispute, cognizance could not have been taken. 7. In Chandra Deo Singhs decision as referred to by the learned counsel for the revisionist, it has been settled that during inquiry, the presence of the accused is not barred, but what is barred is his participation. There is difference between watching and participation. Watching means to know what actually is being done and in that course, if the accused could point out the lack of jurisdiction of the Court to enquire into the offence or as has been in the case of Md. Shamim v. State of Bihar, reported in 2002 (4) PLJR 829 , that when police investigation is pending in some offence, the Magistrate has no jurisdiction to proceed with the complaint case and consequently complaint case has to be stayed under Section 210, Cr PC, but nevertheless the accused in the garb of this can set up his defence. Shamim v. State of Bihar, reported in 2002 (4) PLJR 829 , that when police investigation is pending in some offence, the Magistrate has no jurisdiction to proceed with the complaint case and consequently complaint case has to be stayed under Section 210, Cr PC, but nevertheless the accused in the garb of this can set up his defence. In 1976 (3) SCC 736 Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, the Apex Court, while decided the parameters and held that the Magistrate has to answer the question barely from the point of complaint, without act of adverting to any defence that the accused may have. In the case of AIR 1963 SC 1430 Chandra Deo Singh v. Prakash Chandra Bose @ Chabi Bose, the Apex Court had already said that "whether the complaint is frivolous or not at this stage necessarily is to be determined on the basis of complaint, whatever the defence the accused may have can only be enquired into at the trial", In the instant case, certain documents were produced by the accused, on consideration of which the learned Magistrate found that the complainant had suppressed this material document and thus, the case was false. It cannot be disputed that this document is a document of defence. If that document was filed and considered, then, in fact, the Magistrate had considered the defence. Moreover, it does not appear from the impugned order that whether the complainant was asked or given any chance to say his views about this document. Thus, acceptance of this document at this stage of inquiry means the acceptance of the defence set up by the accused, which could have been done by a trial Court and is completely beyond the purview of the inquiry Court. 8. Learned counsel for the opposite party No. 2, Mr. Jerath, further argued that even if it is presumed that this document was considered, then also if the complainant is examined on its merit, then also it does not make out a criminal case and on this score alone and in view of the ratio laid down in the case of Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors., reported in AIR 1988 SC 709 , cognizance could not have been taken and complaint should have been dismissed. v. Sambhajirao Chandrojirao Angre and Ors., reported in AIR 1988 SC 709 , cognizance could not have been taken and complaint should have been dismissed. I find that in the Madhavraos case (supra), it was not a subject whether during inquiry under Section 202, Cr PC, the defence, could be admitted by the inquiry Magistrate. It was a quashing petition and therefore, the ratio of this decision does not help the opposite party No. 2 and consequently, the argument raised by Mr. Jerath is rejected. 9. Mr. Jerath, learned counsel for the opposite party No. 2, again relied upon a decision rendered in the case of Nogi Reddy v. Emperior, reported in AIR 1930 Madras 443, and argued that it is not illegal on the part of the Magistrate to consider the evidence or the defence. In the aforesaid case, the Magistrate himself was not making an inquiry. He had given the inquiry to Tahasildar and the Tahasildar has refused to accept the evidence adduced on behalf of the defence. The inquiry and investigation are quite two different things. Section 2(g), Cr PC, defines inquiry as follows :-- "2(g) Inquiry means every inquiry, other than trial, conducted under this Code by a Magistrate or Court" Investigation is defined under Section 2(h), Cr PC, which is as follows :-- "2(h) Investigation includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf." Thus when a Magistrate is conducting an inquiry, it is an inquiry, otherwise, it becomes an investigation and in investigation, even the defence version of the accused has to be considered, but in inquiry, the Magistrate under Section 202, Cr PC is to consider only the case of the complainant and apply his independent judicial mind and also to remain cautious of the interest of the accused who is not participating at this stage and therefore, should ask questions from witnesses so as to know the truth of the allegation, but in this exercise of protecting the interest of the accused at this stage, he cannot directly, adhere to suggestions given by the accused or to consider his documents or witnesses because these are the work of a trial Court. So the inquiring Magistrate cannot assume the role of the trial Court. 10. So the inquiring Magistrate cannot assume the role of the trial Court. 10. The learned counsel for the opposite party No. 2, Mr. Jerath, finally argued that since the allegations disclose civil dispute and not a criminal one, the learned Magistrates finding is justified. It is not my consideration here as to whether the finding of the learned Magistrate is justified or not, the main crux is whether in face of consideration of document of the defence, the enquiry is vitiated. On perusal of the impugned order, some portion of which has been cited above, it appears that the defence document weighed heavily in the mind of the Inquiring Magistrate and consequently, the result arrived at by him is the result apparently of his persuasion by that document. Thus, the impugned decision even though it could be correct due to the failure of the complaint itself on its own intent but it has become impure or defective due to consideration of the defence document and is, thus, vitiated. 11. In the result, there is no difficulty in holding, that the learned Magistrate erred in law by examining the defence document and got persuaded by it. The question posed above is answered accordingly. The impugned order is set aside and the learned Magistrate is directed to pass an order afresh. No order for further inquiry is being passed in the peculiar facts and circumstances of the case. This revision is allowed.