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Bangshilal Bhora and anr. Vs. Rowtmal Patwari and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBangshilal Bhora and anr.
RespondentRowtmal Patwari and anr.
Excerpt:
- - , but manifestly the facts alleged in the complaint are capable of a two-fold interpretation, it may well be, having regard to the letters of accused 2 that all the accused were acting in concert in getting the oil to karimganj under false pretences, never intending to remit the sale-procceds to the complainant. clearly, it will be for the magistrate to decide what the nature of that collusion was. he was also informed by accused 1 & 2 that they had paid the money to accused 3. the complainant then wanted to know from the accused the rate at which the oil had been sold as well as the dates of the disposal of the consignment. but, as, according to the complaint, there was an agreement between the parties that accused 2 acting on behalf of acccused 1 was to render accounts at..... thadani, c.j. 1. this is an application under the provisions of section 439, cri. p.c. seeking to quash a complaint brought by one kowatmal patwari against three persona—bangshilal bhora, anandamal bhora & rambahadur tewari—in the court of the first class magistrate at dhubri.2. the complaint is in these terms:the complainant files the complaint on the following allegations:—it is submitted that i am the manager of fakiragram rice & oil mills. accused 1 is the proprietor of the firm styled as lalchand chaganmal gulcha at karimganj, & accused 2 is his employee. in the 1st part of november lust, when accused 2 came to our mill & gave a proposal to sell the mustard oil of our mill as our commission agent, it was settled by & between both the parties that accused 1 & 2, as.....
Judgment:

Thadani, C.J.

1. This is an application under the provisions of Section 439, Cri. P.C. seeking to quash a complaint brought by one Kowatmal Patwari against three persona—Bangshilal Bhora, Anandamal Bhora & Rambahadur Tewari—in the Court of the First Class Magistrate at Dhubri.

2. The complaint is in these terms:

The complainant files the complaint on the following allegations:—It is submitted that I am the Manager of Fakiragram Rice & Oil Mills. Accused 1 is the proprietor of the firm styled as Lalchand Chaganmal Gulcha at Karimganj, & accused 2 is his employee. In the 1st part of November lust, when accused 2 came to our Mill & gave a proposal to sell the mustard oil of our Mill as our Commission Agent, it was settled by & between both the parties that accused 1 & 2, as our Commission Agents, would sell our mustard oil at the Bazar rate according to our advice, & they would send the sale-proceeds by draft, hundi or postal insurance, & would tend the account of the sale proceeds of the oil at Fakiragram. After the aforesaid arrangement was made by the accused 2 on behalf of deft, 1, we sent 441 tins of mustard oil by Railway Receipt No. 462201 to Karimganj, at the request of accused 2, & accused 1 & 2, on behalf of the Firm of Lalchand Chaganmal Gulcha, took delivery of the said 441 tins of mustari oil & stored it in their godown. On enquiry being made by us as to the Bazar rate of the said mustard oil—deft. 2, onbehalf of the firm, informed us that oil was not being sold as there was so proper price, & as there was little demand; accused 2 wrote for the last time on 21 12-49. In the meantime, doused 3, as canvasser of our Mill, went to several places to secure order with printed terms. Accused 8 had no other authority except to secure orders & he had no authority to receive money on behalf of our Mill from any one. As no other letter was received from the accused 1 & 2 — witnesses 6 & 7 sent me (sic) to Karimganj on 13-1 50 to make enquiries about the oil sent at Karimganj, & to ascertain whether there was further demand, Accordingly when I enquired about the oil in the firm of accused 1 & 2, I was told that oil has been sold. I asked them to send the money at Fakiragram by draft, when the accused 1 & 2 gave out that they have paid the money to accused 3. I objected by saying—why money has been paid in spice of knowing that accused 3 had no authority to receive payment & I wanted to know at what rate & on which date it (oil) was sold, & when I wanted to see the accounts, they did not show it to me. Thereafter I came back to Fakiragram on 17-1-50, It is our belief that accused 1 & 2, in collision with accused 3 & with an evil motive & with a view to make us suffer loss, & in the absence of any instructions from us & contrary to the arrangement, & by committing breach of trust have sold the mustard oil elsewhere & misappropriated the entire sale-proceeds amounting to Rs. 21,000 by guess.

It is humbly prayed warrant may be issued against the accused & the account books of the accused be seized after searching the house of the accused it the accused be duly punished alter taking evidence.

3. This matter came up on 13-12.50 before the Division Bench consisting of Ram Labhaya J. & myself when this Court passed the following order:

Heard in part. The Magistrate concerned is directed to take evidence on the question of jurisdiction as stated in his order dated 15-7-50, & submit the evidence to this Court within one mouth of the receipt of this order & records.

The requisition has been complied with by the learned trying Magistrate.

4. It is the case of the complainant that accused 3 Anandamal Bhora visited the complainant who is the Manager of the Fakiragram Rice & Oil Mills at Fakiragram in the first week of November 1919 & informed the complainant that there was a great demand for mustard oil at Karimganj & that if he oared to sell the oil at Karimganj he would sell if for him as his agent. The complainant apparently agreed & it was arranged between the complainant & accused 2 Anandamal Bhora that the complainant would send the mustard oil to Messrs. Lalchand Saganmal Gulecha at Karimganj, for sale & that accused 2 would remit the sale proceeds by draft, hundi, or postal insurance & also send account of the sale proceeds to the Fakiragram Rice & Oil Mills at Fakiragram.

5. On 9-11-49, the complainant sent 441 tins of mustard oil to Karimganj & one Bojronglal personally went to Karimganj & took delivery of the tins & made over the consignment, to the firm of Lalchand Saganmal Qulecha at Karimganj. Shortly afterwards accused 2 Anandamal Bhora wrote letters to the complainant telling him that there was no demand for mustard oil at Karimganj & that the oil cannot be sold. The last letter received by the complainant in this connection from accused Anandamal was dated 21-12-49. As nothing further was heard of the consignment, the complainant himself proceeded to Karimganj to make enquiries. He left Fakiragram on 13 1.50 & reached Karimganj on 14-1-50, & met the accused Anandamal & Banshilal. To the complainant's surprise, they informed him that the mustard oil had been sold, on 7-1-50. The complainant asked them why the sale proceeds had not been sent as arrranged, to which they replied that the sale proceeds had been paid to accused, Rambahadur Tewari. The complainant made every effort to contact Rambahadur Tewari, but in vain. Disappointed, the complainant returned to Fakiragram on 17-1-50 & in duo course filed the present complaint. The value of the mustard oil sent to the accused was Rs. 21,000.

6. It is plain from a bare perusal of the complaint that it discloses an offence. This Court has laid down more than once that it will not interfere in the exercise of its re visional jurisdiction & quash a complaint when on the face of it, an offence is disclosed.

7. Mr. Ghose for the applicants has contended that assuming that the complaint discloses an offence, it disclosed an offence Under Section 406, I.P.C. wholly committed at Karimganj, an offence in respect of which the Magistrate at Dhubri who entertained the complaint has no territorial jurisdiction, & that the Court which had territorial jurisdiction was a Court at Karimganj, having regard to the provisions of Section 181, Cr. P. C

8. Upon Mr. Ghose's contention, two points arise for our consideration : (1) Would we be justified in quashing a complaint, which, on the face of it discloses an offence, on the sole ground that the Magistrate at Dhubri had no territorial jurisdiction to try the offence, (2) is this a case in which we should case to the prayer of the applicants to transfer the ease to Karimganj to be tried by a Magistrate having jurisdiction, in the exercise of our power under Clause (1) of Section 526, Cr. P.C.

9. The first point is included by the view of this Court repeatedly expressed, namely, that it will refuse to quash a complaint which on the face of it, discloses an offence. On the 2nd point, we have come to the conclusion that it is not a case in which Clause (1) of Section 52G, Cri. P.C., is necessarily attracted. We will presently consider the oases on which Mr. Ghose has relied in support of his contention that the complaint ought to be transferred to a Court at Karimganj. We are unable to agree that the complaint discloses an offence only Under Section 406, I. P.C. & under no other section of the Indian Penal Code. The allegation in the complaint is that accused 2 Anandamal Bhora went to the complainant at Fakiragram, a place within the jurisdiction of the Dhubri Court, & persuaded the complainant to despatch mustard oil to Karimganj, suggesting that he was likely to sell the oil there more profitably. The complainant, in order to safeguard his interest, agreed to send the oil for sale at Karimganj on condition that accused a Anandamal remitted the sale-proceeds by draft, or hundi or postal insurance. It is an admitted position in this case that accused Anandamal Bhora did not remit the sale proceeds to the complainant at Fakiragram, It is significant that the learned advocate appearing for accused 3 stated before us that the sale-proceeds were not paid to accused 3 by any of the other accused 1 & 2 & that he opposed the transfer of the case to Karimganj.

10. It is true that the complaint has been treated by the Dhubri Magistrate as one Under Section 406, I, P.C. having regard to the fact that he has issued process against all the three accused Under Section 406, I. P.C., but manifestly the facts alleged in the complaint are capable of a two-fold interpretation, It may well be, having regard to the letters of accused 2 that all the accused were acting in concert in getting the oil to Karimganj under false pretences, never intending to remit the sale-procceds to the complainant. If, in pursuance of such conspiracy, accused 2 made certain promises at Fakiragram which he had no intention of keeping, the possibility of the accused having committed an offence of cheating cannot be ruled out, & it is not disputed that, if the facts at the trial disclose an offence of cheating, the Dhubri Magistrate would have jurisdiction to try the offence.

11. Mr. Sen for the complainant has drawn our attention to the allegation of the complainant in the complaint petition namely that accused 1, 2 & 3 were acting in collusion. Clearly, it will be for the Magistrate to decide what the nature of that collusion was. The collusion might be in respect of obtaining delivery of the mustard oil on the false pretence of selling it at Karimganj, the accused never intending to remit the sale-proceeds to the complainant, or the collusion might consist in unlawful sharing of the sale-proceeds of the mustard oil, in which case it might be an offence Under Section 406 I. P.C. When we say this, we do not wish to indicate to the Magistrate what view of the facts he should take; we merely wish, to point out the undesirability of expressing at this stage a definite opinion, namely, that the complaint did not disclose an offence of cheating. We have also in view the provisions of Sections 236 & 237, Cri. P.C. If the facts proved at the trial make it difficult for the Magistrate to say what offence or offences the facts proved constitute, he might have resort to the provisions of these two sections for resolving the difficulty. We think the facts stated in the complaint make it very undesirable for us at this stage to say that the complaint discloses an offence under Section 406 I. P.C. only & under no other section.

11a. We will now proceed to consider the cases on which Mr. Ghose for the applicants has relied. The Bombay case reported in In re,'Jivan Das 85 Bom. 59 has no application to the facts before us. The complaint in that case was entirely one Under Sections 405 & 477A, I.P.C. The dual aspect of the case which is alleged to be present in the case before us was not present in the Bombay case. For the same reason, the cases reported in Vasanji Khemjee v. Kanji Tokersey A.I.R. (25) 1938 Rang. 94, S. Huda v. Alt Hussain M. Iqbal A.I.R. (27) 1940 Cal. 367, Daityart Tripatty v. Chandra, Subodh 46 C. W. N. 352, Laxman Shri Krishna v.'Dayabhai Ramchandra A.I.R. (35) 1948 Nag. 80, Krishnamachari v. Shaw Wallace & Co , 39 Mad. 576 & Sultanchand v Yogindra Nath A.I.R. (31) 1944 Pesh. as, have no application to the facts before us. In this view, it is unnecessary to refer to the Calcutta case reported in Paul De Flondor v. Emperor A.I.R. (18) 1931 Cal. 528 upon which Mr. Sen for O. P. No. 2 has relied.

12. The result is that the application is dismissed. We decline to interfere at this stage.

Deka, J

13. I agree.

Ram Labhaya, J.

14. The facts leading to this petition of revision are as follows:

15. On 18 1-1950 Rewtmal Patwari, complainant-opposite Party No. l, claiming to be the manager of the Fakiragram Rice & Oil Mills, instituted a complaint in the Court of Mr. M. N. Barua, Extra Assistant Commissioner & Magistrate of the 1st Class, Dhubri, against the two petitioners & one Rambahadar Tewari who is opposite-party no 2 in this petition. On this complaints, warrants were issued against all the three accused under Section 106, Penal Code. In the complaint it was alleged that Bangshilal Bhora accused l (petitioner l) was the proprietor of the Firm known as Lalchand Chaganmal doing business at Karimganj & accused 2 Anandamal Bhora. (Petitioner 2) was his employee, In November 1949, Anandamal accused, came to the complainant's Mill & offered that his Firm would sell complainant's oil as Commission Agents. The offer was accepted & the parties agreed that accused 1 & 2 would act as Commission Agents & sell the mustard oil at bazar rate according to the instructions of the complainant's Firm. It was also agreed that they would send the sale proceeds by draft, hundi or postal insurance & would send the account of the sale proceeds of the oil to Fakiragram. In pursuance of the arrangement 441 tins of mustard oil were sent to Karimganj by rail at the request of accused 2, The oil was booked to self on 9-11-1949 & was taken delivery of, by a representative of the complainant's Firm. He, it is alleged, gave delivery to the Firm of the accused at Karimganj, According to Maidam Das, a proprietor of the complainant's Firm, delivery was taken by Anandamal on behalf of the Firm. On inquiry by the complainant's Firm about the bazar rate of the mustard oil, accused 2 informed them that the oil was not fetching proper price as there was not much demand. The last letter that was received from accused 2 was on 31-12-1949.

16. Accused 3, alleged to be the canvasser of the mill, went to several places to secure orders for oil. According to the complaint, he had no authority to receive money on behalf of the mill. 17. As the complainant's Firm did not receive any information from Karimganj for some time the complainant was sent to find out what had happened to the oil. His inquiries revealed that the oil had been sold. He was also informed by accused 1 & 2 that they had paid the money to accused 3. The complainant then wanted to know from the accused the rate at which the oil had been sold as well as the dates of the disposal of the consignment. He did not get the information. He also wanted to see the accounts but he was not permitted to see them. He came back to Fakiragram & instituted this complaint on 19-1-1950. In the last para of the complaint, it is stated as follows:

It is our belief that accused 1 & 2 in collusion with accused 3 & with an evil motive & with a view to make us suffer loss, & in the absence of any instructions from us & contrary to the arrangement, & by committing breach of trust have sold the mustard oil elsewhere & misappropriated the entire sale proceeds amounting to Rs. 21,000 by guess.

18. After the examination of the complainant, the accused were summoned. Maidan Das, one of the proprietors of the firm, was examined on 8-6 1950 & Hirendranath Samaddar & Ramprotab Agarwalla were examined on 9.(3-1950. On 6-7-1950, accused 1 & 9 objected to the jurisdiction of the Court by a petition. After hearing the counsel for the parties, the learned Magistrate decided on 15-7 1950 that 4tl tins of oil were received by accused l & 2 at Karimganj. But, as, according to the complaint, there was an agreement between the parties that accused 2 acting on behalf of acccused 1 was to render accounts at Fakiragram & to send the money there, the failure of the accused to render accounts at Fakiragram would be a consequence that would ensue there. On this basis he held that he had jurisdiction prima facie to inquire into & try the case He remarked further that after hearing the evidence of the prosecution witnesses if ho found that the complainant had failed to prove the alleged stipulation prima facie, he shall direct the complainant to seek relief in a Karimganj Court It is against this order that this petition of revision is directed. It was claimed in the petition that the complaint does not disclose any offence against the petitioners & on the admitted facts of the case the Court at Dhubri had no jurisdiction to hear it. A Rule was issued &, the opposite parties were required to show cause why the proceedings against the petitioners pending in the Court of the Magistrate, 1st Class, Dhubri, be not quashed as prayed for, The case came up for hearing on 13K-12-1950. The Magistrate concerned was directed to take further evidence on the question of jurisdiction which he thought he should have, before disposing of the question of jurisdiction finally. The complainant alone appeared to give evidence on this question.

19. The contention that the a complaint does not disclose any offence against accused 1 & 2 cannot prevail. I do not think that there is any justification for the complaint or the proceedings thereon being quashed. The learned Counsel for the accused has not seriously pressed for this relief. No case at all has been made out for quashing the proceedings & I can discover no valid basis for the contention that the complaint does not disclose an offence. An inquiry into the facts alleged in the complaint thu8 is unavoidable.

20. The only important question in the case is as to whether the Court at Dhubri has jurisdiction to inquire into the complaint. Mr. Ghose points out that the two proprietors of the Firm admitted when making their depositions that the consignment was booked to self & was taken delivery of by Bajrangmal on their behalf & was then delivered to the Firm of the accused through Anandamal at Karimganj, This fact has not been disputed even before us Mr. Ghose bases his entire argument on this admitted fact. He argues that according to the complaint, the oil was entrusted to the accused at Karimganj. The sale proceeds were also misappropriated there. If the allegations made in the complaint are true, the offence of the criminal breach of trust was committed at Karimganj notwithstanding the fact that complainant's Firm may be said to have suffered loss at Fakiragram. He also urges that the existence of an agreement to pay & to render accounts at Fakiragram would not make any difference as the loss to the complainant & the failure to pay & to render accounts there are no ingredients of the offence. According to him, the case is covered by Section 181, Clause (a), Cri. P.C. which provides that:

The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused or the offence was committed.

21. He points out that the property was received at Karimganj & the offence was also committed there. Section 179, he argues has no application to cases of criminal broach of trust.

22. Mr Sen has supported the order of the trial Magistrate on the ground that the case is covered by Section 179, which permits the trial of an offence by a Court within the local limits of whose jurisdiction any consequence of the offence has ensued. He points out that accused l had agreed to remit the money to Fakiragram & also to render accounts there & urges further that the loss to the complainant occurred there. These facts, he urges, would bring the case within the jurisdiction of the Court at Dhubri. In the alternative, he has argued that accused 1 hud represented to the complainant at Fakiragram that there was considerable demand for mustard oil at Karimganj, He seemed to suggest that Che statement gave an indication that there was an element of cheating in the case. He points out that further evidence may necessitate a charge of cheating at least in the alternative & that therefore it would be appropriate if the case is allowed to be tried by the Court at Dhubri. Mr. Gupta for opposite Party No. 2 supports him.

23. From the argument addressed to us, the first question that arises for consideration is whether Section 179 can apply to the facts of this case. Chap XV, in which this section occurs, relates to the jurisdiction of the criminal Courts in inquiries & trials. Section 177 lays down that:

Every offence shall ordinarily be inquired into tried by a Court within the local limits of whose jurisdiction it was committed.

Section 178 authorises the Provincial Govt., subject to certain limitations, to direct that any cases or class of cases committed 'or trial in any distrust may be tried in any sessions division & thus enacts an exception to the general rule. Section 179 enacts a second exception by providing that:

When a person is accused of the commission of any offence by reason of anything which has been done & of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of which jurisdiction any such thing baa been done, or any such consequence has ensued.' It would be seen that the requirement of this section is that the offence with which a person stands charged must be an offence by reason of anything that has been done & of any consequence which has ensued The language employed requires that the offence should consist of something that has been done & the consequence that has ensued. Both the act & its consequence should be parts of the offence, or, in other words, its ingredients If the consequence of the act is not an ingredient of the offence, then the section should not apply because the person then would not be accused of the commission of the offence by reason of anything that baa been done & of the consequence which has ensued. If the charge is for an offence by reason of commission of an act & the consequences of the act form no part of the offence, this section cannot apply. The word 'and' is significant. Its requirement is that both the act done & the consequence should form part of the offence if the case is to be brought under S 179. Once the act & the consequence both form part of the offence, then both the Court within the local limits of whose jurisdiction the act is done & the Court within the local limits of whose jurisdiction the consequence has ensued can inquire into it. The four illustrations to the section fully support this view. The first illustration is of a person wounded within the local limits of the jurisdiction of a Court. He dies within the local limits of the jurisdiction of another Court. The offence is of culpable homicide consisting of the act & the consequence. It may therefore be inquired into or tried by either Court. The other three illustrations also lead to the same conclusion. The acts & the consequences are parts of the offences with which the illustrations deal, The illustrations are not exhaustive; they would not control the interpretation of the provision of law expressed in such plain language if they had been inconsistent with it. But there cannot be any doubt; that they give an indication to the intention of the Legislature. Reading the language of the section with the illustrations, it appears to me that it is clear that the section can apply only when the act & the consequence both are ingredients of he offence, which may be the subject-matter of inquiry or trial.

24. The view that I take of the matter finds support from Mahomed Abdul Latif v. Ahmed Abdul Halim A.I.R. (25) 1938 All. 632; Kashiram v. Emperor AIR. (21) 1934 ALL. 499 : A.I. R. (17) 1930 Bom. 490 ; A.I.R. (29) 19 2 Cal. 575; Mahtab Din v. Emperor, A.I R. (11) 1924 Lah, 663; Dina Nath v.Tulsiram A.I.R. (12) 1925 Lah, 171 : A.I.R. (3) 1916 Mad. 438; Gowkaran Lal v. Sarju Saw, A.I R. (8) 1921 Pat. 85; AH Mahomed Kassim v. Emperor, A I. R. (18) 19:11 Rang. 164; Mukhi Tirathdas v. Jethanand A.I.R. (24) 1937 Sind 68 and A.I.R. (311 1941 Pesh. 25.

25. It will appear from these cases that this view is shared by the High Courts at Allahabad, Bombay, Calcutta, Lahore, Madras, Putna, Rangoon & the Judicial Commissioner's Courts of Bind & Peshawar. The same view was taken in Dewan Sitngh v. Emperor, A I. R. (23) 1936 Nag. 55 and A.I.R. (35) 1948 Nag. 80. The two cases Madho Surendra Sahai v. Gobardhan Lal A.I.R (20) 1933 Oudh 216 & Trikamji Parmanandji v. Emperor A.I.R. (20) 1933 Nag. 33 in which the contrary view was expressed have not even been relied on by the learned Counsel for the opposite parties. It may thus be taken as settled law that Section 179 can apply only where the act itself & its consequence combined together constitute an offence which is the subject matter of inquiry or trial.

26. This, however, dots not decide the question. If the section applies to cases of criminal breach of trust, it will have to bo soon whether the act complained of & its consequences taken together constitute the offence. But before going into this question, it is necessary to determine whether Section 179 can at all be applied to cases of criminal breach of trust.

27. After considering the cases to which we have referred, my conclusion is that Section 179 has no application to cases of criminal breach of trust. They are provided for by Section 181, col. (2). According to this clause, the offence of criminal misappropriation may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property, which is the subject-matter of the offence, was received or retained by the accused person, or the offence was committed. This section deals with certain other offences also. There being a specific provision for the offence of criminal breach of trust, the general provision contained in Section 179 should not apply.

28-29. The special provision should exclude the general in its application to cases of criminal misappropriation & criminal breach of trust according to the ordinary rule of construction. This conclusion is unavoidable on a strict; construction of Section 181, Clause (2). If the intention of the Legislature had been to apply 3. 179 to cases of criminal breach of trust notwithstanding & comprerhensive specific provision, this would have been expressly stated. There is nothing in the language of the Statute to indicate that such was the intention. Section 181, Clause (2) contains intrinsic evidence of its exclusive character. In regard to the offences of criminal breach of trust & criminal misappropriation, to avoid difficulties in cases where an act which forma part of the offence is committed at one place & another which completes it at another place, the Court within whose jurisdiction the property is received or retained is given jurisdiction along with the Court in whose jurisdiction the offence takes place which consists of the dishonest misappropriation, use or disposal, etc., of the property innocently received or retained. This scheme is very appropriate for the oases dealt with by this clause, for if Section 179 can apply only where the consequence is an ingredient of the offence itself, as held above, it would not cover oases of criminal breach of trust or of criminal misappropriation. In such cases the property is received or retained & then is dishonestly misappropriated. The offences are completed as soon as dishonest misappropriation, disposal or use, etc. take place.

30. The subsequent misappropriation cannot be described as the consequence of the preceding innocent act. If therefore, the offences dealt with by Section 181 (2) were to be split up for conferring jurisdiction on different Courts the best method was that employed by the Legislature in Section 181 (2). The general phraseology of Section 179 could not be utilised so far as these offences are concerned. Section 181 (a) thus serves the same purpose as Section 179 in regard to the offences dealt with by it. The result is that offences mentioned in Section 181 (2) are taken out of the general category covered by Section 179. In this view only those Courts will have jurisdiction to try the offence of criminal breach of trust on whom it is expressly conferred by Section 181 (2).

31. On the facts as stated by the complainant, the Dhubri Court has got no jurisdiction to inquire into the complaint. The case put forward by the complainant is that in pursuance of an agreement of Agency entered into between the complainant's Firm &Anandamal;, accused, acting on behalf of his Firm, 441 tins of oil were entrusted to Anandamal as a representative of his Firm at Karimganj. It is alleged chat the oil was disposed of but its sale proceeds have been misappropriated by the three accused acting in collusion with each other. It is obvious that the property was received or retained at Karimganj & not within the jurisdiction of the Court at Dhubri. The alleged misappropriation also occurred within the jurisdiction of the Karimganj Court At any rate, it is certainly was not within the jurisdiction of the Court at Dhubri. The Court at Dhubri therefore has not jurisdiction to inquire into the offence of criminal breach of trust. The Court at Karimganj, on the other hand, is certainly competent to inquire into the offence as at least the property was received or retained there.

32. The learned Magistrate noticed that the complainant had alleged that according bo the agreement of Agency, the sale proceeds of the oil had to be remitted to the Firm at Fakiragram by draft, hundi or postal insurance. The accounts too had to be rendered at Fakiragram, If these allegations could be substantiated, the failure on the part of the aroused to pay the amount due to the complainant & to render accounts would, in his view, confer jurisdiction on the Court at Dhubri. This view of the law is not correct. These omissions are no ingredients of the offence. The offence was complete immediately the sale proceeds were used or utilised dishonestly in violation of the terms of the alleged contract. It is the misappropriation, dishonest use or disposal that completes the offence. The failure to render accounts as also the failure to pay the sale proceeds both constitute evidence of the offence. They are not its ingredients. If there had been no misappropriation or dishonest use or disposal of the property entrusted to the accused, the accused would have rendered accounts & made the payment. The misappropriation or wrongful use or disposal led to this omission But the offence was complete before the alleged omissions were made. The Court within whose jurisdiction the offence is committed has jurisdiction. The violation of the terms of the alleged agreement of Agency to render accounts & to remit money would thus be mere circumstantial evidence of the commission of the offence.

33. Again, it cannot be said that the omission to render accounts or make the payment came to be made at Dhubri, The sale proceeds could have been remitted from Karimganj & also the accounts. The disposal of the, amount in disregard of the terms of the contract & the failure to render accounts also occurred at Karimganj. Even in legal contemplation they could not be said to have occurred at Fakiragram for a person cannot be said to be guilty of an omission at a particular place where he is at the time. The failure to render accounts & to remit the money to Fakiragram could occur only after the sale of the oil. There is no allegation that after the sale, any of the accused visited Fakiragram. A man cannot be said to do an act or be guilty of an offence at a particular place where he is not at the time of the offence as held by Mackney J. in Vasanji Khimjee V. Kanji Tokersey A.I.R. (25) 1988 Rang. 94.

34. It has also been suggested that the loss to the complainant's Firm occurred at Fakiragram. This loss is a consequence of the act complained of & therefore the Court at Dhubri has jurisdiction to inquire into the complaint. I have already come to the conclusion that Section 179 has got no application to cases of criminal breach of trust. This argument therefore, cannot prevail. Besides, it cannot be said that the loss occurred at Fakiragram. The property belonging to the complainant's Firm was at Karimganj. It could be the subject-matter of theft. It could be misappropriated & criminal breach of trust too could have been committed with respect to it. If the property belonging to the complainant's Firm is stolen at a place, Karimganj for instance, & not where they reside, the loss is occasioned at the place where the property was. The complainant's Firm may feel the sensation of loss where they may be at the time. If the news of the loss is received by them not at the place of their permanent residence but somewhere else, that sensation would be felt there The loss occurs at the place where the property, which is the subject of the loss, is lost. In this view of the matter, even the loss of the property would be deemed to have occurred at Karimganj If the loss is taken in the sense of a general diminution of the assets available to the complainant, then such a loss not being an ingredient of the offence, would not be a factor which can affect the decision on the question of the jurisdiction of the Court. It is the place where the offence is committed that gives jurisdiction. The consequence, as stated above, is not a material circumstance to be considered.

35. In 55 Bom. 59, it was held that Section 179, has no application to oases of criminal breach of trust. It was also held that loss to the principal or anybody else is not a necessary ingredient in the offence of criminal breach of trust as defined in Section 405, I. P.C. and the fact that the accused had to render accounts & did in fact deliver accounts alleged to be false in Bombay, did not amount to a dishonest use of the money in Bombay & therefore the Bombay Court had no jurisdiction to try the offence. In this case the existing case law on the points that arise in the present case was examined & the views stated above prevailed with learned Judges constituting the Full Bench of the Bombay High Court.

36. In A.I.R. (3) 1916 Mad. 438, it was held that where the accused was appointed agent for the sale of the complainant's oil at Nandyal & used to send periodical reports to his principal at Madras & left the place of business having made away with the money, the loss primarily ensued to the complainant as a consequence of the accused's conduct at Nandyal where the misappropriation of the money received had taken place and therefore the Court at Madras had no jurisdiction to try the case.

37. In a Full Bench case reported in A.I.R. (24) 1937 Sind 68 money was agreed to be sent to Sukkur. It was dishonestly misappropriated at Lucknow. It was held that dishonest misappropriation or conversion could not be said to have taken place at Sukkur, It was also held that the loss to the complainant was not a necessary ingredient of the offence & that Section 179 did not apply to oases of criminal breach of trust.

38. Other authorities that support this view are Ayaram v. Gobindlal A. I. R (20) 1938 Lah. 559 : A.I.R. (35) 1948 Nag. 80 : A.I.R. (31) 1944 Pesh 25.

39. In A.I.R. (27) 1940 Cal. 367, a Bank at Barisal which had instructions to remit money to complainant's Firm at Calcutta dishonestly retained the money in contravention of the directions. It was held that both the entrustment & the breach took place at Barisal & the offence was complete there & therefore the Magistrate in Calcutta had no jurisdiction to try the case.

40. The learned Counsel for the opposite parties have relied on two eases. These are Mohrulal v. Emperor A.I.R. (as) 1936 ll. 193 & A.I.R.(18) 1931 Cal. 528 : A, I. R (23) 1936 ALL. 193, has been considered in the three important oases considered above, namely 55 Bom, 59 : A.I.R. (24) 1937 Sind 68 : A.I.R. (25) 1938 Rang. 94. The learned Judges in this A.I.R. (23) 1936 ALL 193, treated the evidence of the offence as one of its ingredients. With all respect to the learned Judges who decided this case, I have not found it possible to follow this view.

41. In A.I.R. (18) 1931 Cal 528, it was held that failure to account at a particular place may give jurisdiction to the Court if there is no evidence to show where the misappropriation was committed. This view is also open to criticism. Even in this case the non-accounting has been treated as an ingredient of the offence under certain circumstances. This view is thus opposed to the decision on which I have placed reliance. My conclusion is that the complaint against the accused is that they have jointly committed criminal breach of trust. The property was received & retained at Karimganj. The alleged breach of trust also has taken place there & in any case not within the limits of the jurisdiction of the Court at Dhubri. The entrustment of the property & the commission of the offence of criminal breach of trust both took place outside the jurisdiction of the Dhubri Court, It has, therefore, got no jurisdiction to inquire into the matter.

42. Mr. Sen for the complainant has suggested that an element of fraud may be discovered in the case & the Court may find after all the evidence has been given that the facts disclose a ease of cheating & of criminal breach of trust or it may feel inclined to frame a charge in the alternative. On this possibility he argues that the ease should be allowed to be inquired into by the Magistrate at Dhubri at least for the present. This contention has got no merit & must be repelled. The case as disclosed in the complaint was that accused 2, Anandamal, came to Fakiragram & offered on behalf of his Firm to sell oil for the complainant's Firm as their Commission Agents. Oil was sent in pursuance of the oral arrangement, according to which the sale proceeds were to be sent to Fakiragram by hundis, drafts etc., & accounts were also to be rendered there. There is no suggestion in the complaint that the arrangement itself was induced by any false representation or that Anandamal had any dishonest intention to start with. It is not even remotely suggested that delivery of oil to the accused was made under the influence of or was induced by any fraudulent representation made by Anandamal at Fakiragram. The case put in the complaint was adhered to by the complainant in the statement that he made on 9-1-1950. Maidan Das & Hirendranath, who were also examined, also did not suggest that the agreement of agency was induced by any representation which suppressed the truth or suggested what was false. All they said was that Anandamal proposed that the oil may be sent to his Firm & they would act as Commission Agents. Rampertab also made a statement to that effect. They were all agreed that the offence committed was one of criminal breach of trust; that oil was entrusted to accused l who received it on behalf of his Firm. It was sold & accused 1 & 2 in collusion with accused 3 misappropriated the sale proceeds. They emphasised that in doing so, accused 1 & 2 violated the directions for the disposal of the sale proceeds of the. property entrusted. It will thus appear that the complainant did not at all suggest that there was any element of cheating in the case. The learned Magistrate when considering the question of jurisdiction did not refer to any possibility of his framing an alternative charge, He could not discover any suppressed hint of there being any cheating in the ease. He he'd that oil was received & sold at Karimganj. But as the complainant had alleged that accused 1 was to render accounts at Fakiragram & to send the money there, he thought that the failure of accused 1 & 2 render accounts at Fakiragram was a consequence that ensued at Fakiragram. On this point, he was not prepared to pronounce finally at that stage. He, therefore, made it clear that if the complainant after producing all his evidence failed to make out a prima facie case about the stipulation as to the rendition of accounts at Fakiragram, he would direct the complainant to seek relief at Karimganj. It did not occur to him nor was it suggested to him from the side of the complainant that the question of jurisdiction may be decided by reference to any possibilities of a charge of cheating becoming necessary at a latter stage. When the case came up to this Court, it was Rent back for further evidence bearing on the question of jurisdiction. A further opportunity was thus offered to the complainant to show by evidence at his disposal that the Court at Dhubri had jurisdiction. The complainant alone appeared after the case was sent back. The only improvement made in the prosecution case is that the complainant this time attributed to Anandamal the statement that there was a great demand for oil at Karimganj. This statement was attributed to: him for the time after the case had been sent back from this Court. How far such a abatement can command credence is a matter which must be left for determination by the Gourd which will finally pronounce on the merits of the controversy. I shall at this stage assume that this statement is correct. But I can discover no suggestion in it even that the representation said to have been made was false or fraudulent or was calculated to deceive. The oil was sent—a representative of the complainant's Firm went to Karimganj & there delivered the oil to the accused. He would have known whether there was demand for it or not. It is also admitted by the complainant that after taking delivery of the oil, Anandmal explained the delay in its disposal by stating that the oil was not fetching proper price & that there was no pressing demand for it. It was also after this that a representative of the complainant's Firm again went to Karimganj & discovered that the oil had been sold & the sale proceeds misappropriated. The complaint was filed after this on 19-1-1950. If there was any misrepresentation by which complainant's Firm was induced to deliver oil, it would surely have been brought out conspicuously in the complaint itself. One year after on 23-1-1951, when the question of jurisdiction had been discussed at two stages, the complainant attributed to the accused Anandamal the statement that there was a demand for oil at Karimganj but avoided saying that the statement was false or untrue or that it was by reason of this false representation that oil was delivered to Anandamal or his Firm. It is clear that the complainant has not taken any responsibility for the statement that the complainant's Firm was deceived or that Anandmal had any dishonest intention at the time he entered into an agreement on behalf of his Firm to sell oil belonging to the complainant's Firm on commission basis. There is reference in the complaint to collusion between the three accused. This is in the last para of the complaint. On a reasonable construction of the complaint & the statements that followed, this alleged collusion became possible only by the visit of the accused 3 to Karimganj which was admittedly after the entrustment of the oil to the one or the other of the accused. Even in this para of the complaint there is no indication that the complainant had any reason to believe that the accused were co-conspirators from the very start or that all were or may possibly be guilty of the offence of cheating. The somewhat emphatic statement in the last para of the complaint is that accused l & 2 in collusion with accused 8 committed breach of trust by selling the oil & misappropriating the proceeds. My interpretation of the complaint is different from that of my Lord the Chief Justice & my learned brother Deka J. I have given the matter my anxious consideration. I regret very much that I have not been able to persuade myself to adopt the view that has prevailed with them.

43. The case for the complainant has now been fully stated. He may now prove it but he cannot improve on it by attributing to any of the accused what has not so far been attributed to any one of them. The question of jurisdiction has to be determined on the assumption that what has been stated on the side of the complainant so far is correct. Having produced all evidence on the question of jurisdiction, complainant may not now be permitted to urge that decision on this question be deferred any further. As observed in A.I.R. (21) 1934 ALL. 499 (at pp. 501 & 502), the appropriate course is to decide the question of jurisdiction when it is raised. If the accused have raised the question, they should be prepared for a decision on facts stated by or on behalf of the complainant. Those facts will be assumed to be correct for purposes of the decision on the question of jurisdiction. The complainant cannot justifiably ask for postponement in order to improve on what he has stated in the complaint


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