Madhava Reddy, J.
1. This is a reference made under Section 488, Criminal P. C. by the Additional Sessions Judge, West Godavari, Division, Eluru, to set aside the order of the 1st Addl. Judicial First Class Magistrate, Eluru returning the complaint under Section 201(1), Criminal P. C. for presentation to the proper Court.
2. The complaint with the following material allegations was filed before the Magistrate.
3. The complainant is a resident of Eluru and Proprietor of a cloth shop carrying on business of cloth while the accused is a clerk employed by him and entrusted with the care of various articles in the shop like sarees, shirting and other cloth. He is also entrusted with the duties of maintaining the accounts and conducting sales in the shop. The accused, on the pretext of seeing some of his relatives at Vijayawada, who were bereaved, left the shop of the complainant He went to Vijayawada, purchased cloth worth Rs. 1,542-53 Ps. on 12-7-1966 from certain merchants at Vijayawada on behalf of the complainant. He took delivery of part of the said stock and the remaining, he caused to be sent to Eluru along with 5 bills. The said stock was however, returned to the complainant to the various owners from whom the accused had purchased. Out of the 5 bills made out in the name of the complainant, it was stated in the complaint that the stock pertaining to Bill No. 5328 from Potti Tandava Sreekriahnarao & M. Narayana Kao and Bill No. 7984 from Sri Krishna & Co., which were separately packed and entrusted to this accused, were taken in person by the accused to be delivered to the complainant...The accused has not given delivery of the stocks to the complainant.
As a result of this Act of the accused, the complainant had incurred a loss of Rs. 388-74 Ps. which was dishonestly and wrongfully caused by the accused. The accused admitted that he has brought the above two bundles with him and promised to return them to the complainant or to make good the value thereof to the complainant, but has been adopting various dilatory tactics and till now ha has not returned any of them...The. accused requested the complainant personally not to take any drastic action for the misappropriation of this stock he brought from Vijayawada and promised to make good the value of the two parcels brought from Potti Tandava Sree. Krishna Rao & M. Narayana Rao and Sri Krishna & Co., Vijayawada.'
4. The learned Magistrate framed a charge for an offence under Section 420, I. P. C., to which the accused pleaded not guilty. After recording the entire evidence, he came to the conclusion that the offence under Section 420, I. P. C., was not made out against the accused but instead an offence under Section 406, I. P. C. was proved beyond doubt. He held that though a specific charge under Section 406, I. P. C. was not framed, the accused could be convicted for the said charge. But he was of the Opinion that, as there was no specific evidence with regard to the accused bringing the stock to Eluru and converting the same to his own use within the jurisdiction of that Court, the Court at Eluru had no jurisdiction to entertain the case and accordingly directed the return of the complaint under Section 201(1), Criminal P.C. for presentation to the proper Court.
5. The learned Sessions Judge, West Godavari being of the opinion that this order is bad in law, has made this reference.
6. Prom the material averments which have been extracted above, it is clear that the accused after having been entrusted with the stock of cloth at Vijayawada is not alleged to have converted the said stock to his own use at Vijayawada. In fact it is not specifically mentioned as to where exactly the stock of cloth was converted by him to his use. On the contrary, it is stated in the complaint that the accused admitted his having brought the two bundles of cloth with him and promised to return the same to the complainant or make good its value. This evidently means that the accused brought the cloth from Vijayawada to Eluru. In para. 14 of the complaint it is also stated that the accused requested the complainant personally, ''not to take any drastic action for the misappropriation of the stock he brought from Vijayawada.' This also indicates that he brought the stock from Vijayawada and if at all, the conversion has taken place at Eluru.
In any event, the least that could be said is that it is not clear as to where exactly the cloth was converted to his own use by the accused after he was entrusted with the said stock at Vijayawada. For trying an offence of criminal misappropriation or criminal breach of trust, the place where the property which is the subject of the offence was received or retained by. the accused person or the offence was committed, determines the jurisdiction of the Court as laid down in Section 182, Criminal P. C. Section 182 reads as follows:
When it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a con tinning one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such Iqbal areas.
In view of the above the Vijayawada Court' would undoubtedly have jurisdiction. But at the same time, if the stock was retained by the accused at Eluru or the stock was converted by committing criminal breach of trust or misappropriation within the jurisdiction of Eluru Court, that Court would have jurisdiction. In fact the offence alleged against the accused is one of criminal breach of trust resulting from not accounting for the stock of cloth entrusted to him and not converting the same for his own use. The place of the business of the complainant where the accused was to deliver the stock or to render account is Eluru, the Court below in which the complaint was filed. That Court will, therefore, have jurisdiction to entertain the complaint.
A somewhat similar question came up for consideration in Arunachala v. Akhileshwara : AIR1952Mad158 wherein Ramaswami J., held, 'where the charge is of non-accounting and there is no specific allegation of misappropriation in any particular place the venue of the trial will be the place where the accounting has got to be done and has not been done.' In Anlhony D'Mello v. J.M. Pereira AIR 1987 Bom 871, where the accused who was a travelling agent of the complainant was entrusted with some ornaments for sale while he was on tour, sold the articles at Karachi and returned to Bombay, the place of business of his master and failed to produce the money for the goods sold by him; it was held that when it is not clear whether the money received for the goods sold was actually mis. appropriated in Bombay or at any place outside Bombay, the Bombay Court could not discharge the accused simply on the ground of want of jurisdiction, unless it was established that the actual misappropriation took place elsewhere. The Supreme Court in Madhya Pradesh State v. K.P. Ghiara AIR 1957 SC 196 had to consider the question of the venue of trial in a case of embezzlement. Govinda Menon, J. speaking for the Bench laid down the principle in the following words ;
The venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge sheet and unless the facts there are positively disproved, ordinarily the Court where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202, Criminal P. C.
7. In view, of the averments of the complaint in this case, while the stock of cloth was entrusted to the accused in Vijayawada,, the same was brought by the accused from that place and while the accused was liable to account for the said stock or deliver the same to the complainant at Eluru, he failed to do so. Where exactly it was converted to his use is not clear. The place of business of the complainant being Eluru the accused was liable to render account to the complainant at Eluru and having failed to do so, he would be deemed to have committed criminal breach of trust at Elurui In view of the facts and circumstances of this case, this determines the jurisdiction of the Court.
In any event, in view of the above averments in the charge-sheet at the worst it would be a case wherein it is doubtful where exactly the conversion took place. In either view of the matter the Court at Eluru would have jurisdiction to entertain the complaint to proceed with the enquiry and convict the accused. The reference is accordingly accepted and the revision is allowed and the order directing the return of the complaint set aside. The accused is not present although notice is affixed to the last residence of the accused. Reference accepted.