S.R. Das Gupta, J.
1. This is a petition for quashing the proceedings pending against the petitioners in the court of Sri S.B. Sarkar, Magistrate First Class, Alipore, 24-Parganas.
2. The case made in the petition of complaint upon which the said proceedings have been started is as follows : The petitioner is a Kabiraj and was in charge of Asansol Branch of the opposite party, Dacca Ayurvedic Pharmacy Limited. It was the duty of the petitioner to enter the medicines received by him in the cash book and the stock book and he was to remit the sale proceeds and render weekly, monthly and periodical accounts, to the Head Office. From the cash book it has been found that the accused misappropriated Rs. 527-7-6 in the first week of January 1954 and has also misappropriated over Rs. 1742/- by introducing spurious medicines namely 'Makaradhwaj and Swarnasindur' and 'Rasasindur' in the stock of the company.
Upon those allegations the present proceedings have been started against the petitioner.
3. The ground, on which the said proceedings are sought to be quashed is that the criminal court at Alipore had no jurisdiction to try the alleged offence of the petitioner. The case against the petitioner was under Section 408, Penal Code, that is to say, criminal breach of trust by a clerk or a servant. The petitioner contends before us that in a case of criminal breach of trust or misappropriation the court competent to try the same would be the court situated at a place where the entrustment or the positive act of conversion took place.
But in this case, it was alleged, the petition of complaint shows that the conversion and or the entrustment took place at Asansol and, therefore, the court at Asansol is the court competent to try this offence.
4. In out opinion this contention of the petitioner is sound and should prevail. In determining the question as to whether or not the court at Alipore has jurisdiction to try this case, it would be necessary to consider certain provisions of the Code of Criminal Procedure. The material provisions to be considered are sections 177, 179 and 181(2) of the Code of Criminal Procedure. Section 177 of the Code lays down that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed.
Then comes Section 179 which says that when a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued, such offence may be inquired into or tried by a court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued. Section 181(2) provides as follows :
'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.'
I have already stated that the case against the petitioner is under Section 408, Penal Code, i.e., criminal breach of trust by a clerk or a servant. On consideration of the said provisions of the criminal procedure it appears to us that the offence of criminal misappropriation or criminal breach of trust can be inquied into or tried by a court within the local limits of whose jurisdiction any part of the property was received or retained or the offence was committed.
This is clear from the plain language of Section 181(2) of the Cr. P. Code. In this case the petitionof complaint clearly shows that the petitioner wasin charge of the Asansol Branch of the companyand while in the said charge he had received andmisappropriated the sums mentioned in the saidpetition. It seems to be clear that in the petitionof complaint the case made is that the entrustmentand misappropriation or breach of trust look placeat Asansol. So, on the averments made in the petition orcomplaint and on the plain reading of Sub-section(2) of Section 181 of the Code of Criminal Procedureit is clear that the court which is competent to trythis case would be the court at Asansol wherethe entrustment and the misappropriation or thecriminal breach of trust had taken place. Someconfusion had been sought to be created by reference to the provisions of Section 179 of the Code andit has been contended that the Alipore Court isalso competent to try this case because of the provisions of the said section.
I have referred to the provisions of Section 179 of the Code. The effect of me said section in our opinion is that if a person is said to have committed an offence by reason of anything done and of any consequence which has ensued, such offence may be enquired into or tried by the court within the local limits of whose jurisdiction such thing has been done or such consequence has ensued. In other words, if the ingredients of an offence are (a) an act done and (b) a consequence which follows then the court where the act was done or where the consequence has ensued would be competent to try the said case.
This was also the view taken by Beaumont, C. J. in the case of -- 'In re Jivandas Savchand', AIR 1930 Bom 490 (FB) (A). Beaumont C. J. in considering the effect of Section 179 of the Code in that case observed as follows :
'Now I must confess that but for the fact that many eminent Judges have taken a different view, I should have thought that the language of that section was perfectly plain. What it provides is, that when a person is accused of the commission of any offence by reason of two things, by reason first of anything which has been done, and, secondly, of any consequence which has ensued, then jurisdiction is conferred on the court where the act has been done or the consequence has ensued. But the offence must be charged by reason of those two things, the act done and the consequence which ensued.
If that is so, the consequence is necessarily part of the offence.'
In that case also, the question arose whether or not a person can be tried for criminal breach of trust in a place where he was required to render accounts. The complainant in that case had entered into a partnership at Bombay in a business to be carried on in Rangoon. The accused was to manage and conduct the business in Rangoon and he was to send to the Head Office at Bombay statements of the business transacted by him on behalf of the partnership. The accused used to send such statements and accounts and on examination of the accounts sent, the complainant discovered that the accused had dishonestly misappropriated large sums of money belonging to the firm.
A complaint was thereupon filed in Bombay charging the accused under Section 405 and under Section 477A, Penal Code. It was held that the offence of criminal breach of trust having been committed in Rangoon, under Section 181(2) of the Code of Criminal Procedure, the Bombay Court had no jurisdiction to try the offence, Beaumont C. I. in making the observations to which I have referred repelled the contention that in a case of criminal breach of trust the offence can be said to have been committed not only at the place where the actual misappropriation took place but also at the place where the accused was liable to render accounts.
We very respectfully agree with the view-taken by Beaumont C. J. in the said case. In our opinion also the plain language of Section 179, Criminal P. C., makes that position clear. The same view seems also to have been taken by this Court in the case of -- 'Daityari Tripatty v. Subodh Chandra Chowdhury : AIR1942Cal575 . In that case also, the complaint was under Section 408, Penal Code, and the question arose as to which was the court which should try the said case. Blagden J. in delivering the judgment made it quite clear that under the Code ot Criminal Procedure an offence of criminal breach of trust was not triable at a place where neither the entrustment nor any positive act of conversion took place.
His Lordship further held that it was also not triable at such place either under Section 179 or under, Section 181(2) of the Code of Criminal Procedure on the footing that failure to render accounts took place there. Blagden J. in the course of his judgment stated that the actual crime created by Section 405 of the Indian Penal Code consists of any one of four acts 'misappropriation', 'conversion', 'user' or 'disposal' of property, and it seemed on principle that a man can personally do an act at that place, only where at the material time he physically is.
With regard to the application of Section 179 ofthe Code of Criminal Procedure Blagden J. held --and' we agree with the said view -- that failureto account is often convincing evidence of the actof misappropriation and not an incident of the saidact. We respectfully agree with the view takenby the learned Judges in the said case of : AIR1942Cal575 , and of Beaumont C. J.,namely that non-submission of an account is notan integral part of an act of misappropriation and,therefore, it cannot be said that the offence tookplace not only at the place where the misappropriation took place but also at the place where theaccounts were not rendered. IThe learned Advocate for the opposite partyrelied on the case of Prokash Chandra v. Mohim Chand : AIR1934Cal392 , and on the judgment delivered by Mukherji J. in that case, whereHis Lordship held as follows :
'Where there is no definite allegation of misappropriation having been committed in any particular place in respect of a sum which forms the subject matter of a case, but the allegation is merely of non-accounting in respect of the sum, failure to account may itself be taken as evidence of intention to misappropriate and the offence of misappropriation is deemed to have been committed at the place at which the accused ought to have rendered the accounts.'
A decision of an eminent Judge like Mukherji J. is certainly entitled to very great respect and we would be reluctant to differ from the view taken by his Lordship unless it was on a very substantial ground. But it appears to us that the case which was before Mukerji J., is distinguishable from the case which is now before us. We do not know what the contents of the petition of complaint in that case were as they do not appear from the said report but from the observations of Mukherji J. to which I have referred, it seems to us that in the petition of complaint in that case there was no definite allegation of misappropriation having been committed in any particular place in respect of the sum which formed the subject matter of that case, but the allegation was merely for non-accounting in respect of the same.
In fact, it appears from the said observations that the whole case of misappropriation in that case was founded upon the allegation that there was no accounting in respect of the money. Thus as I said before although the contents of the petition of complaint in that case are not known to us but from those observations it appears that the case of misappropriation was founded only upon the fact of non-accounting. But the petition of complaint in this case is different and is more specific. In the petition in the present case it has been stated that the petitioner was in charge of the Asansol Branch of the company and while in the said charge he committed misappropriation of the sums mentioned therein; in other words, it is clear from the averments made in that petition that the entrustment and the acts of misappropriation had both been committed at Asansol.
That being the position, the Alipore Court in our opinion is not competent to proceed with this case. Before concluding this judgment, I may also add that in the said case of : AIR1934Cal392 , Mukerji J. did not consider the effect of Section 179, Criminal P. C., vis-a-vis Section 408, Penal Code; in other words, Mukerji J. did not consider the matter from the point of view from which Blagden J. and Beaumont C.J., considered it in their judgments.
5. In the result, therefore, we hold that the present case cannot be proceeded with in the court of Alipore and the proceedings pending against the petitioner in the said court should be quashed and we make an order accordingly.
6. The Rule is, therefore, made absolute.
7. I agree.