N.C. Talukdar, J.
1. This Rule is at the instance of the two accused-petitioners, Brahmanand Goyal and Anandpal Goyal, directed against an order dated the 19th January, 1971, passed by Shri H. P. Kar, Additional Chief Presidency Magistrate, Calcutta issuing process against seven accused-persons including the two accused-petitioners, under Section 120-B read with Section 407 of the Indian Penal Code and for quashing the proceedings pending before him, being case No. C/39 of 1971.
2. The facts leading on to the Rule can be put in a short compass. A complaint was filed before the learned Additional Chief Presidency Magistrate, Calcutta, on the 19th January, 1971, by the complainant opposite party No. 1, Shri N. C. Chakravorty of Messrs. National Tobacco Co. of India Ltd. against the seven accused persons, including the two accused petitioners. The learned Additional Chief Presidency Magistrate, Calcutta examined the complainant and issued process against all the accused persons under Section 120-B read with Section 407 of the Indian Penal Code on the same date along with a search-warrant for the seizure of books of account, stock register and other relevant papers. The accused petitioners thereafter appeared in court and were released on bail. The order issuing process and the resultant proceedings have been impugned, as not maintainable in law, and the present Rule was issued.
3. Mr. S.D. Banerjee, Senior Advocate (with Messrs. Pritish Chandra Roy and Sakti Pada Chatterjee, Advocates) appearing in support of the Rule raised four contentions viz., that the trial is vitiated by the absence of jurisdiction; that there has been a non-conformance to the mandatory provisions of Section 200, Criminal Procedure Code; that there has been a suppression of material facts in obtaining the process; and that the dispute is essentially of the civil nature because of the part realisation of value and the receipt of on-demand pronote from the stockists. Mr. Prasun Chandra Ghose, Advocate (with Mr. Sumit Kumar Moitra, Advocate) appearing on behalf of the complainant opposite party No. 1 joined issue. He contended inter alia that there is no absence of jurisdiction as alleged or at all inasmuch as the cognisance taken in this case is of an offence of conspiracy to commit breach of trust that there has been no non-conformance to Section 200, Criminal Procedure Code inasmuch as the duty to examine the other prosecution witnesses only arises when they are present on the date when cognisance is taken; and that the other two grounds urged relate to merits and at this stage, when no evidence has yet been recorded it is premature to quash the proceedings on those grounds.
4. We will take up for consideration the ground of jurisdiction in the first instance inasmuch as it goes to the very root of the case. The general rule of Lex Fori constitutes the very corner stone of the case upon which can only be built the super-structure of the proceedings. The test laid down for such consideration at this stage, when no evidence has been recorded, is to refer to the averments made in the petition of complaint and the evidence, if any. A reference in this context may be made to the decision of the Supreme Court in the case of State of Madhya Pradesh v. K. P. Ghiara reported in AIR 1957 SC 196 : 1957 Cri LJ 322 wherein Mr. Justice Govinda Menon, delivering the judgment of the Court, observed that 'the venue of enquiry of 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 Procedure Code'. We respectfully agree and we find that the averments made in the petition of complaint do not specially establish the venue of the trial to be within the jurisdiction of the Presidency Magistrate's Court. It is also relevant to consider in this connection that the Court takes cognizance under Section 190(1), Criminal Procedure Code of any offence upon receiving complaint of facts which constitute such offence. It is necessary therefore to turn to the averments made in the petition of complaint and the evidence, if any, to find out whether the facts constituting such offence make out the jurisdiction to be in Calcutta. The position in law again with regard to the question of jurisdiction for the offence of criminal appropriation or of breach of trust is now quite clear. Section 181(2), Criminal Procedure Code as also the relevant decision on the point make that clear. Without multiplying the number, a reference may be made to the well -Known case of Daityari Tripathi v. Subodh Chandra Chowdhary reported in AIR 1942 Cal 575 : 44 Cri LJ 132. Mr. Justice Blagden delivering the judgment of the Court considered different decisions of the various High Courts and observed at p. 577 that 'neither failure to account for breach of contract, however, dishonest is actually and in itself the offence which Section 405, Penal Code defines, but merely evidence of that offence'. Therefore an offence of criminal breach of trust is not triable at a place where neither the factum of entrustment nor the positive act of conversion had taken place, because an offence of criminal breach of trust always consists in an act and not in an omission. Mr. Banerjee appearing on behalf of the two accused petitioners submitted that the petition of complaint clearly does not lay the foundation of the offence of conspiracy and far less establish the factum of entrustment in Calcutta, in either of which case the jurisdiction should have been in Calcutta. In support of his submission he referred to paragraph 4 wherein just a vague reference to an 'entrustraent without at all alleging as to whether it took place in Calcutta or in Gauhati is given. Mr. Banerjee argued that the relevant consignment notes disclose that the dispatch was from Gauhati to Dibrugarh, conferring thereupon the jurisdiction in Assam. He further contended that as to the purported conspiracy, the allegations were again very indefinite and in the relevant paragraph viz., paragraph 7 there is no averment as to where and how and when the alleged conspiracy took place. In short, according to Mr. Banerjee, the foundations of a criminal conspiracy were not laid. Mr. Prasun Chandra Ghosh submitted that these contentions are not tenable and the address of the complainant having been shown to be in Calcutta the entrustment must be deemed to have been here. The complainant's company has also a depot or agency in Gauhati also and apart from that the consignment notes rule out that such entrustment was made in Calcutta. It has now to be considered whether the charge of conspiracy referred to in the petition of complaint would confer jurisdiction. It is undoubtedly true that the foundations of a conspiracy have not been laid out and there are no averments in the petition of complaint as to when and where and how the conspiracy had taken place. The petition of complaint unfortunately is delightfully vague. Neither in paragraph 6 where merely a conspiracy is referred to nor in paragraph 7 where the same has been reiterated there is mention as to how and where and when such conspiracy had taken place. The examination of the complainant on oath as recorded by the learned Presidency Magistrate does not also throw any light either way. In the light of the position in law as referred to above and in view of the facts and circumstances of the case as made out up-till now, we have to hold that the offence alleged has not been specifically stated to have taken place within the jurisdiction of the Presidency Magistrate's Court and as such the objection taken at the instance of the accused petitioners, relating to the absence of jurisdiction, stands.
5. The second branch of submissions regarding a non-conformance to the provisions of Section 200, Criminal Procedure Code is based on the non-examination of any other prosecution witnesses besides the complainant at the time of taking cognizance on the 19th January, 1971, although several such witnesses have specifically been mentioned in the list of witnesses annexed to the petition of complaint. The position in law is quite clear and after amendment, Section 200, Criminal Procedure Code lays down that the Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath etc. Mr. Ghosh submitted that the provision is mandatory only when witnesses for the prosecution are present at the time of taking cognizance but not so otherwise. The imprimatur of judicial decisions however does not lend assurance to Mr. Ghosh's submission as an absolute proposition of law. The principle laid down is if no such witnesses on behalf of the prosecution be present at the time of taking cognizance the learned Magistrate cannot take down their evidence but will have to record in the order sheet that no such prosecution witnesses were present on the occasion. Otherwise, the cognizance would be bad and improper vitiating the entire proceedings. A reference may be made to the case of Nirmal-jit Singh Hoon v. The State of West Bengal reported in : 2SCR66 . Mr. Justice Shelat delivering the judgment on behalf of himself, Mr. Justice Dua and Mr. Justice Khanna observed at p. 2646 that 'the object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harrass such a person'. Supreme Court therefore pin-points the necessity of such examination and that intention of the legislature in amending the provision is also the same. In the case of P.S. Ramaswami Nadar v. R. Viswanathan reported in 1957 Cri LJ 673 (Mad). Mr, Jutice Somasundaram observed that 'The Section is mandatory, and it is therefore obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who are present in Court. The Magistrate in future will do well in asking the complainant as soon as he is examined on oath whether any witnesses are present in Court, and if witnesses were present, it is his duty to examine them on oath, but if no witnesses are present, he will do well to mention in the order itself that no witnesses were present according to the statement of complainant or the advocate who appeared in Court.' In the present case there is no such finding in the order impugned. It is pertinent in this context to refer to a recent decision of this Court in the case of Mac Culloch v. State reported in 78 Cal WN 307 : reported in 1974 Cri LJ 182. It has been observed therein at p. 312 that in such case 'the non-conformance alleged is a non-conformance to the mandatory provisions of the statute resulting in a non-conformance to the procedure established by law. Defects in procedure brought to the notice of the Court should be set right at the early stage as otherwise there ultimately will be prejudice caused to all concerned'. In the case under consideration ultimately the impugned order was set aside. We agree with principles laid down in the aforesaid cases and we hold that there has been a non-conformance to Section 200, Criminal Procedure Code inasmuch as there is no explanation recorded by the learned Additional Chief Presidency Magistrate, Calcutta as to why such witnesses were not examined. The second branch of submission raised by Mr. Sankar-das Banerjee also succeeds.
6. As to the other two dimensions of Mr. Banerjee's submissions relating to merits, we must hold that it is not possible for us to uphold the same at this stage. A proper consideration thereof must be based on an appraisal of facts but in the present proceedings up-till now no evidence has been recorded. Quashing of proceedings at an interlocutory stage is not usually done unless and until there is an abuse of the process of the Court. Mr. Ghosh has rightly contended that it is premature at this stage to give effect to Mr. Banerjee's submission. We agree. It is difficult to hold either way in the facts and circumstances of the case and the stage reached. The materials referred to by Mr. Banerjee in support of his contentions may be brought on the record at the proper stage for a consideration as to whether on the b;. -is thereof it could be established that there has been a suppression of material facts or the dispute made out is at best of a civil nature. We make it quite clear that in view of the ultimate order we are going to pass we make no observations as to the merits and the respective parties shall be at liberty to agitate the various points raised by them at the proper stage and in the proper forum. The third and fourth dimensions of Mr. Banerjee's arguments accordingly fail.
7. In the result, we set aside the order dated, the 19th January, 1971, passed by Shri H. P. Kar, Additional Chief Presidency Magistrate, Calcutta and quash the proceedings under Section 120-B/407, Indian Penal Code, being case No. C/39 of 1971, pending before the learned Magistrate on the ground of jurisdiction and non-conformance to Section 200, Criminal Procedure Code. This Rule is disposed of accordingly.
8. The record shall go down as early as possible.
A.N. Banerjee, J.
9. I agree.