Skip to content


State of U.P. Vs. Santosh Kumar Capoor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ734
AppellantState of U.P.
RespondentSantosh Kumar Capoor
Excerpt:
.....heard learned counsel appearing for the state as well as the learned counsel appearing for the opposite party and, in my opinion, the contention of the state must prevail. 5. in this report, it was clearly alleged that according to the guarantee given by the firm, the latter was repeatedly requested to remove the defects but it was 'only as late as june 14, 1963' that he agreed for free repairs of the refrigerators and as such, the machines were sent to the firm in january 1964 through a messenger. ka-17. relevant part of which has been quoted above, the opposite party wrote to the principal undertaking to deliver the refrigerators at gyanpur by april 7 1965, according to the evidence led at the trial, the opposite party failed to discharge his trust in the manner undertaken by him...........referred to as the 'college') at police station gyanpur, a charge sheet was submitted against the opposite party santosh kumar capoor, in the court of the learned magistrate at gyanpur, for offences punishable under sections 420 and 406 of the indian penal code. the learned magistrate proceeded under chapter xviii of the code of criminal procedure (hereinafter referred to as the 'code') and committed the opposite party to the court of the learned sessions judge, varanasi at gyanpur, for trial for the offences under sections 406 and 420 of the indian penal code. the learned additional sessions judge framed charges against the opposite party and proceeded with the trial. after the greater part of the prosecution evidence had been recorded by the learned additional sessions judge, an.....
Judgment:
ORDER

Yashoda Nandan, J.

1. The relevant facts giving rise to this revision are that as a consequence of a First Information Report lodged by Sri K. N. Srivastava, Principal of the K. N. Government College. Gyanpur, district Varanasi (hereinafter referred to as the 'College') at Police Station Gyanpur, a charge sheet was submitted against the opposite party Santosh Kumar Capoor, in the Court of the learned Magistrate at Gyanpur, for offences punishable under Sections 420 and 406 of the Indian Penal Code. The learned Magistrate proceeded under Chapter XVIII of the Code of Criminal Procedure (hereinafter referred to as the 'Code') and committed the opposite party to the Court of the learned Sessions Judge, Varanasi at Gyanpur, for trial for the offences under Sections 406 and 420 of the Indian Penal Code. The learned Additional Sessions Judge framed charges against the opposite party and proceeded with the trial. After the greater part of the prosecution evidence had been recorded by the learned Additional Sessions Judge, an application was made on behalf of the opposite parjy for adjournment on the ground that he had approached the State. Government for withdrawal of the prosecution and orders were expected to be passed shortly in his favour. The trial Court allowed the application and adjourned the trial. Subsequently, the opposite party made an application before the learned Sessions Judge alleging that on the evidence produced by the prosecution, offences, if any, had been committed by him within the jurisdiction of the Courts at Lucknow end consequently, neither the learned Magistrate whp had conducted the committal proceedings nor the Sessions Court at Gyanpur where the trial was proceeding, had jurisdiction in respect of the case. A prayer was made that a recommendation be made to this Hon'ble Court for passing appropriate orders. The learned Sessions Judge held that no inducement had been made by the opposite party to the college authorities for parting with the goods, which were alleged to have formed subject-matter of the offence, at Gyanpur. He took the view that by means of a letter written at Lucknow, the applicant had induced the Principal of the College to send the two refrigerators to Lucknow for repairs and consequently it was clear that the inducement for entrusting the subject-matter of the alleged offences, had been made at Lucknow. In this view of the matter, the learned Additional Sessions Judge held that the proceedings for the offence punishable under Section 420 of the Indian Penal Code at the Courts at Gyan-pur, were without jurisdiction. He further held that since the property involved in the offence for which the opposite party had been charged, had been, according to the prosecution case, entrusted to him at Lucknow and had also been retained by him there; the offence under Section 406 of the Indian Penal Code had been committed at Lucknow, Relying upon Section 181(2) of the Code, the trial Judge held that the opposite party could not be either committed for trial or tried for the offence under Section 406 of the Indian Penal Code also in the Courts at Gyanpur. In the result, the learned Additional Sessions Judge did not make any recommendation to this Court for appropriate orders but merely directed that the application made by the accused opposite party, was 'decided accordingly'.

2. Aggrieved by the order passed by the trial Court, the State of Uttar Pradesh has invoked the jurisdiction of this Court under Section 439 of the Code. It has been contended on behalf of the State that on the material on record, the commitment of the applicant to the Court of Session by a learned Magistrate of Gyanpur, was legally competent and further that the trial of the opposite party in the Court of the learned Additional Sessions Judge, was legal and in order. It was urged that the view taken by the learned Additional Sessions Judge was legally unsustainable and unjustified.

3. I have heard learned counsel appearing for the State as well as the learned counsel appearing for the opposite party and, in my opinion, the contention of the State must prevail.

4. The prosecution case, as it emerges from the material on record, is that the opposite party is the proprietor of a firm which used to be known as 'Industry and Finance' carrying on business in refrigerators at Lucknow. Sometime in March 1960, the K. N. Government College, Gyanpur, district Varanasf, purchased from this firm two refrigerators to be used for its Science Department. Shortly after their receipt the refrigerators were found to be defective. In accordance with the guarantee given by the firm at the time it had supplied the refrigerators, the college authorities wrote to the opposite party to get the refrigerators repaired and to put them in proper order. Assurances were held out by opposite party that he would send mechanics to Gyanpur from Loucknow to repair the refrigerators. No steps were, however, taken by the opposite party to carry out these assurances and, ultimately, one Dr. Onkaranatha, one of the Professors of the College, was sent by the Principal to contact the opposite party at Lucknow to find out as to whether he intended to act in accordance with the guarantee given or not. Ultimately, the opposite party wrote a letter dated June 14, 1963, the material part of which isj as follows:

However, the machines will be put right as desired by you. But the refrigerators will have to be sent to our workshop at Lucknow for repairs and we shall bear half the cost for cartage to and fro. Furthermore, the machines will be repaired free of cost.' This letter is Ext. K-5 on record and was proved by Dr. Onkaranatha who was examined as one of the witnesses. In consequence of the assurance held out by this letter, the Principal of the College despatched the two refrigerators from Gyanpur to the opposite party at Lucknow through G. B. Uprety who was, at the relevant time, a Research Scholar of the College. He has appeared as a witness and has proved that he delivered the two refrigerators of the College at Lucknow, having carried them with him under the instructions of the Principal from Gyanpur. In spite of repeated reminders, the opposite party did not send b- k the two refrigeartors after repairs or deliver them to any agent of the College. The Principal of the College was ultimately compelled to write a letter to the Superintendent of Police, Lucknow, on September 10, 1965 with a request to make necessary enquiries from opposite party as to whether he intended to return the refrigerators to the College or r..-> The Superintendent of Police was approached to do so because the goods in-; volved were government property. Ultimately perhaps on being approached by the police authorities of Lucknow on March 23, 1965, the opposite parly wrote a letter to the Principal of the College, relevant part of which is as follows:With regard to the two refrigerators given to us foj repairs are lying in our show room, and due to certain difficulties with us. the same could not be repaired. But we promise that we shall honour our commitment of repairing the same without any further cost. We also undertake to send the machines free of cost, F. O. R. destination, positively by 7th of April, 1965....

The letter which is signed by the opposite Party and is addressed to the Principal of the College, hos been proved by Dr. Onkaranatha who appeared as a witness at the trial. It was exhibited as Ext. K-17 at the trial. It appears from the evidence led at the trial that ultimately on October 29, 1965 tile two refrigerators were delivered by the opposite party through a forwarding agency of Lucknow to the college authorities at Gyanpur. On being examined, it was found that all the vital parts of the refrigerators had been removed including Its electric motor, compressor, thermostat, etc. On the same date, the Principal of the College filed a written First Information Report at Police Station Gyanpur, Varanasi.

5. In this report, it was clearly alleged that according to the guarantee given by the firm, the latter was repeatedly requested to remove the defects but it was 'only as late as June 14, 1963' that he agreed for free repairs of the refrigerators and as such, the machines were sent to the firm in January 1964 through a messenger. The date June 14, 11963 evidently has reference to Ext. K-5. the relevant part of which has been extracted above. The evidence on record shows that all letters received from the opposite party dealing with the matter, were placed before the Principal of the College. There is no evidence on record to show that the Principal of the College ever left Gyanpur and at any stage met the opposite party at Lucknow. Apparently, it is Ext. K-5 which persuaded the Principal to despatch the two refrigerators from Gyanpur to Lucknow through Sri G. B. Uprety who has been examined as a witness. The letter (Ext. K-5), though it was addressed to Dr. Onkara-natha, evidently was brought to the notice of the Principal at Gvanpur. It was the assurance held out in this letter that persuaded the Principal to despatch the two refrigerators from Gyanpur for delivery to the opposite party at Lucknow. It is the assurance held out in Ext. K-5 that induced the Principal of the College to part possession with the refrigerators and to entrust them to the opposite party. The learned Additional Sessions Judge was consequently wrong in holding that the inducement for parting with the properties which formed subject-matter of the alleged offence, was offered at Lucknow. It has to be borne in mind that it was the Principal who had dominion over and was incharge of the properties of the College. Any representation made to Dr. Onkaranatha or any other employee of the College, was immaterial till it was communicated to the Principal of the College at Gyanpur. Since the inducement to part with the two refrigerators which were the property of the College, was, in mv opinion, offered at Gvanpur, an essential ingredient of the offence under Section 420 of the Indian Penal Code took place at Gyanpur. The representation alleged to be dishonest and false having been, according to the material on record, made at Gyanpur, in my judgment, the offence under Section of the Indian Penal Code was cognizable by the Courts at Gyanpur.

6. The only question surviving for consideration is as to whether the Courts at Gyanpur could take cognizance of the offence under Section 406 of the Indian Penal Code alleged to have been committed by the opposite party. Seer tion 181 (2) of the Code runs as under:

(2) 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 person or the offence was committed.' Under this provision of the Code, since according to the prosecution case, the subject of the alleged offence was received by the opposite party at Lucknow, there can be little doubt that the Courts at Lucknow had jurisdiction to inquire into or try the opposite party for the offence under Section 406 of the Indian Penal Code. This, however, does not imply that the Courts at Gyanpur had no power to do so. Sub-section (2) of Section 181 of the Code which has been extracted above, itself provides for an alternative and lays down that an offence under Section 406 of the Indian Penal Code also be inquired into or tried by the Courts within whose territorial jurisdiction the alleged offence was committed. In fact, the later part of subsection (2) of Section 181 is redundant because Section 177 of the Code itself provides that every offence shall ordinarily be inquired into and tried by the Court within the local limits of whose jurisdiction it was committed. If it is possible to find out as to where the offence under Section 406 of the Indian Penal Code was committed by the opposite party, if at all. under Section 177 itself, the Court within whose territorial jurisdiction it was committed, would ba competent to inquire into or try the opposite party for the offence. In my opinion, neither Section 177 nor Section 181(2) of the Code, provides any guidance for finding out as to where the opposite party can be said to have committed the offence under Section 406 of the Indian Penal Code. In order to find out an answer to that question, we have to examine Section 405 of the Indian Penal Code. Section 405 defines 'criminal breach of trust' as follows: .Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to ba discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust or wilfullv suffers any other person so to do, commits 'criminal breach of trust'.

In order to establish an offence under Section 406 of the Indian Penal Code which provides for punishment for criminal breach of trust, the following ingredients must be established-

(1) entrusting any person with property or with dominion over prooertv*

(2) the Person entrusted

(a) dishonestly misappropriating or converting to his own use that DroDertv., -or.

(b) dishonestly using or disposing of that property or wilfully suffering any other person so to do, in violation

(i) of any direction of law urescrib-ing the mode in which such trust is to ba -discharged; or

(ii) of any legal contract, express or imDlied, touchine the discharge of such trust.

7. An analysis of Section 405 of the Indian Penal Code shows that one of the cases in which criminal breach of trust is committed is the dishonest use or disposal of property in violation of any legal contract which the accused made regarding the discharge of the trust. In the present case, according to the evidence produced as disclosed by Ext. Ka-17. relevant part of which has been quoted above, the opposite party wrote to the Principal undertaking to deliver the refrigerators at Gyanpur by April 7 1965, According to the evidence led at the trial, the opposite party failed to discharge his trust in the manner undertaken by him. He delivered the refrigerators at Gyanpur not repaired for which purpose the refrigerators had been entrusted to him, but only the skeleton of the refrigerators after having removed therefrom the electric motor and other material parts. The cause of action for the prosecution of the opposite party as disclosed by the prosecution, was his illegal omission to deliver the properties entrusted to him in proper order. The criminal breach of trust, consequently, if the prosecution evidence is believed, was committed at Gyanpur. Consequently both under Section 177 of the Code as well as under the later part of Section 181(2) of the Code, the Courts at Gyanpur were competent to inquire into the offence under Section 406 of the Indian Penal Code alleged to have been committed by the opposite party as well as to try him for that offence.

8. I find considerable support for the view taken by me by the decision of the then Oudh Chief Court in Brij Kishore v. Chandrika Prasad. ILR 12 Luck 77 : (37 Cri LJ 322 = AIR 1936 Oudh 329). The facts giving rise to the decision before the Chief Court were that a complaint was filed in the Court of a learned Magistrate at Lucknow, disclosing the commission of an offence under Section 408 of the Indian Penal Code by Chandrika Prasad on the allegation that he was the Ziledar of one Babu Murlidhar deceased and used to make collections of rent in the villages owned by Babu Murlidhar in the districts of Pratapgarh and Allahabad, that he had committed criminal breach of trust as such Ziledar and had failed to account to the zamindar for the moneys realized by him in spite of repeated demands. The learned Magistrate took the view that the alleged criminal breach of trust had taken place in the district of Pratapgarh and that, therefore, he had no iurisdiction to try the case. He consequently discharged the accused. Revision filed by the comrjlain-ant was dismissed by the learned Sessions Judge, Lucknow. The complainant filed a revision before the Chief Court at Lucknow, contending that the order of the learned Magistrate holding that he had no jurisdiction to try the case, was incorrect. Ziaul Hasan, J. held that since the accused was liable to deposit the money realized by him and render accounts thereof at the kothi of Zamindar at Lucknow, the offence for which he had been charged, had been committed at Lucknow and consequently the learned Magistrate of Lucknow before whom the complaint had been filed, was competent under Section 181(2) of the Code to try him. It was held that the accused having failed to deliver all the moneys realised by him in spite of repeated demands, it could be held that he had used the property entrusted to him in violation of the legal contract which he had made with his master.

9. There is an observation in Sheo Shankar v. Mohan Sarup AIR 1921 All 12 : (22 Cri LJ 308)(FB) which also lends support to the view taken by me. The facts giving rise to the revision before the Full Bench of this Court were that a complaint was filed against Sheo Shanker, the revisionist, alleging that he was a servant of a cloth shop situate in Mirzapur, and. as such servant it was his duty to realize the price of cloth from traders according to the directions given by his master and to deposit the money thus realized in the shop at Mirzapur. The complaint went on to allege that on December 27, 1919, Sheo Shanker was sent, in the course of his duties, to two villages to collect money and that he did collect a sum of Rs. 1,500/- from the two villages in Allahabad but instead of depositing them at the shop in Mirzapur, he embezzled the amounts collected and filed a false report at Police Station Manda in the district of Allahabad alleging that he had been robbed of the amounts collected by him. The complaint was filed in the Court of the learned Magistrate, Mirzapur. Sheo Shanker filed a revision in this Court challenging the power of the Magistrate at Mirzapur to take cognizance of the offence alleged to have been, committed by him. Mears, Section 4, delivering the judgment of the Court, held that according to the prosecution case, the plan to embezzle the amount collected in villages of district Allahabad, had been formed at Mirzapur Itself and consequently the learned Magistrate at Mirzapur had jurisdiction to try the applicant. It appears to have been held in the alternative that since the accused was liable- to deliver the amount collected by him at the shop in Mirzapur, the Courts at Mirzapur had iurisdiction to try him. This conclusion appears to be justified from the following observation of the Bench:

Accused No. 1 was the servant of the complainant and had a duty to account to his master at the shop in Mirzapur.

10. In Emperor v. Mohrulal : AIR1936All193 a Bench consisting of Sir Shah Muhammad Sulaiman, Section 4 and Benhet, J. took a view similar to the one expressed in ILR 12 Luck 77 : 37 Cri LJ 322 : AIR 1936 Oudh 329. The facts of the case before the Court were that a complaint was filed against Mohrulal in the Court of a learned Magistrate at Kanpur, alleging that he had been engaged at Kanpur as an agent of the firm 'Matadin Bhagwan Dass, Sugar Merchants, Kanpur1 and that he had been sent to Bengal with instructions to effect deliveries of sugar bags and to realize the price of goods from customers and either personally bring the proceeds to Kanpur or to remit the money to Kanpur, that in the beginning he had made remittances of money collected by him on behalf of the firm at Kanpur to Kanpur but that he 'subsequently withheld the moneys collected by him and embezzled'. On the basis of the complaint, the learned Magistrate at Kanpur framed charges against Mohrulal for offences under Sections 408/409 of the Indian Penal Code. The accused moved the Sessions Judge in revision who, being of the view, that the Magistrate of Kanpur had no iurisdiction to try the case, made a reference to this 'Court recommending that the proceedings pending in the Kanpur Court, be quashed. The learned Judses constituting the Bench, held that 'what we have to see in reeard to this offence of criminal breach of trust is where the offence was committed. Section 177 of the Code lays down a rather obvious proposition that the Court where, the offence is committed, has jurisdiction to try that offence, but that section and the subsequent sections da not indicate which is the Court where the offence is committed. That point has to be determined from the definition of the offences in. the Indian-Penal Code.'

11. The Bench after quoting Section 465 of the Indian Penal Code. went, on to observe as under:

This section falls into two parts. The first part is a positive part and deals, with dishonest misappropriation or conversion of property. To charge a person under this part of the section there should be an allegation that at a particular time and place that person has dishonestly misappropriated or converted to his own use property which was entrusted to him. Now the second part of the section may be a negative part. It consists of dishonestly using or disposing of property in violation of (a) any direction, of law, or (b) any legal contract touching the discharge of the trust. Where there-is a violation of a direction of law or a. legal contract, the proof of that violation may be by negative evidence that the direction of law or the contract has not been fulfilled. We are of opinion that. where the direction of law or the contract reauires that the accused should dispose of the property at a particular place, then the Court having jurisdiction at that place will have jurisdiction to try the offence of the second part of Section 405 of the Indian Penal Code where there is a charge that the accused has-failed to coniDlv with the direction of law or the leeal contract and has failed to carry out his duty at that place. The first part of Section 405 will hdpIv where it is known, that the accused has dishonestly misappropriated or converted to-his own use certain property at a particular place, and the iurisdiction to try the accused will be at the place where that dishonest misappropriation or conversion has taken place. But where it is alleged that the accused has failed to account for the property, then the second part of Section 405 will apply and jurisdiction exists at the place where the Dro-perty should have been delivered bv the accused.

In view of the fact that according to the prosecution case and the evidence led, the accused was under an obligation to deliver the moneys collected by him in Bengal at the firm's office at Kanpur, it. was held that in violation of the contract the accused had failed to discharge his trust at Kanpur and consequently Kanpur Court had jurisdiction to try him.

12. In the case before me, as already stated, there is no allegation that. the property entrusted to the accused had been misappropriated by him at Lucknow, The complaint against the opposite party is founded on his having failed in violation of his express undertaking to deliver the refrigerators with their machines, etc. in tact at Gyanpur.

13. For the reasons given by me above, this revision is allowed. The order of the learned Additional Sessions Judge, Gyanpur, is set aside and he is directed to decide the case in accordance with law. It is made clear that it will be for the learned Additional Sessions Judge as a trial Court to decide as to whether any Of the documents referred to in this judgment have been duly proved by reliable evidence or not, and as to how far the evidence led, establishes the offence of which the opposite party has been charged. The record of the case will be sent down to the learned Sessions Judge at an early date for a speedy decision of the case. The interim order passed by this Court is hereby vacated.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //