1. Section 177, Criminal Procedure Code lays down the general law as to the venue of an enquiry or trial: it says that every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Section 179, Criminal Procedure Code lays down 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 enquired 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, Sub-section (2) says that the offence of criminal misappropriation or of criminal breach of trust may be enquired 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.
2. In the case of Simhachalam v. Emperor (1916) 44 Cal 912 it was held by this Court, on a careful review of the decisions of the different High Courts in this country, that the jurisdiction of a Court to try an offence of criminal misappropriation or breach of trust is governed by Section 181, Sub-section (2) and not Section 179 of the Criminal Procedure Code; and that loss, though a normal result, is not an ingredient of the offence of criminal misappropriation or breach of trust and not therefore a consequence within the meaning of Section 179. In a later case, namely that of Abdul Latijff Yusuff v. Abu Mahamad Kassim A.I.R. 1922 Cal. 46, in which a firm carrying on business in Calcutta employed the accused as agent at Singapore and prosecuted him in Calcutta for criminal breach of truss in respect of monies received at Singapore for which he was to render accounts in Calcutta, it was held by this Court that the Court in Calcutta had jurisdiction to deal with the offence. To this later decision one of the Judges in the earlier case referred to above was also a party. This later decision professed to distinguish the case of Simhachalam v. Emperor (1916) 44 Cal 912 in these words: 'But here the further case of the prosecution was that for all monies received the accused was to account at Calcutta. Thus the decision directly in point is that in Colville v. Kristo Kishore (1899) 26 Cal. 746. Following that decision we must hold that on the allegations made the Courts in Calcutta have jurisdiction.'
3. In the present case the trial Court was of opinion that it had no jurisdiction in view of the decision in the case of Simhachalam v. Emperor (1916) 44 Cal 912, and in that view it discharged the accused on the ground that the offence was triable in Calcutta and not at Burdwan; while the learned Sessions Judge on an application made to him against the said order of discharge held that the Court at Burdwan had jurisdiction as well in view of the decision in the case of Abdul Latiff Yusuff v. Abu Muhamad Kassim A.I.R. 1922 Cal. 46.
4. Before proceeding to examine the facts of the present case it is perhaps desirable to discuss the effect of the said two decisions and to find out the principles on which to proceed in order to ascertain what; is the true rule applicable to a case of criminal breach of trust which the offence charged in the present case amounts to.
5. Criminal breach of trust is not an offence which counts as one of its factors, the loss that is the consequence of the act. It is the act itself, which, in law, amounts to the offence. 1 am therefore in entire accord with the decision in the case of Simhachalum v. Emperor (1916) 44 Cal 912 and am clearly of opinion that Section 179, Criminal Procedure Code has no application to a case of criminal breach of trust. The rule is to be found in Section 177, Criminal Procedure Code which lays down the general law and which again has been repeated in and made a part of the special provisions contained in Section 181, Sub-section (2), Criminal Procedure Code.
6. According to the last mentioned provision of the law, an offence of criminal breach of trust may be enquired into or tried in a Court within the local limits of whose jurisdiction, (a) any part of the property which forms the subject of the offence was received or (b) retained by the accused person or (c) the offence was committed. It will be seen that the last part of the sub-section only repeats Section 177 which is the general law and in view of the provisions contained in Section 177 the last part of Section 181, Sub-section (2) seems to be superfluous. The above three considerations therefore in my opinion determine the forum in respect of an offence of criminal breach of trust; and they in my opinion are the only matters to be considered in this connection.
7. It is clear therefore that if the property which forms the subject-matter of the offence or any part of it was received by the accused at a particular place the Court having local jurisdiction over the place, will have jurisdiction to deal with the offence; so also as to the place where the property or any part of it was retained by the accused. The Court within the local limits of whose jurisdiction the offence was committed will also have jurisdiction.
8. Now, where is an offence of criminal breach of trust committed? To determine this we have to examine the provisions of Section 405 of the Indian Penal Code which defines the offence. The offence is complete when there is dishonest misappropriation or conversion to one's own use or when there is dishonest use or disposal in violation of any direction of law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which the accused has made touching the discharge of the trust, or when the accused wilfully suffers any other person to do so. The place where the offence is committed is where there has been misappropriation or conversion or user or disposal of the property or where the accused wilfully suffers any other person to use or dispose of the property. In some cases, no doubt that, the place where these acts are committed can easily be ascertained; while in by far a large majority of cases the dishonest intention of the accused is only patent on his failure to discharge the trust in accordance with the directions of law or some legal contract, express or implied. It is true that it may sometimes happen that long before the time fixed for the accounting or payment the actual misappropriation has taken place, and the offence was complete at that point of time, but the prosecutor remains ignorant of it until such time as he find that the accused fails to pay or to account. Indeed this must be so in many cases for the offence necessarily involves secrecy and the exact manner, point of time or place, where the misappropriation, conversion, use, disposal of sufferance takes place remains more often than not, a matter within the special knowledge of the accused himself. In this class of cases, the overt act of the accused showing his dishonesty is essentially necessary to be proved to establish the offence, and till the time arrives when that act is done it cannot be said with certainty that the offence was committed. A very common case of this kind is where the accused received the money for the prosecutor and fails to account for it. Mere retention of the money would not necessarily raise a presumption of dishonest intention, but it is only a step in that direction. If there is by law or contract a special place assigned for the keeping of the money, the fact that it was not kept there may be some evidence of its dishonest use. But where no time is fixed for the payment of the money or where no place is assigned for the keeping thereof, the accused cannot be said to have committed the offence of criminal breach of trust for merely mixing the trust money with his own and using the funds promiscuously, for he is not necessarily bound to ear-mark the identical coins or notes. In the case of Louis Edouard Lanier v. The King  L.R.A.C. 221 the Judicial Committee of the Privy Council very clearly pointed out the distinction in these words: ' The mixture of the funds of another with one's own funds may be in many cases natural and proper in other cases convenient but irregular, and in the third both irregular and criminal. The distinctions between these cases require to be treated with the greatest judicial care, so as, while preserving the amplest Civil responsibility, to prevent the third or criminal category from being extended to mistaken though convenient acts.' Overt acts that are necessary to be proved in such cases may be of various kinds: e.g. retention for such a length of time as would justify the inference that the accused did not intend to pay at all, failure to credit the receipts in the books, rendering a false account, failure to account, failure to pay in the money in accordance with the terms of the contract, and so on. Mr. Chatterjee has contended that these overt acts are but evidence of the fact that the offence of criminal breach of trust has already been committed by the accused, and from these acts his dishonesty may very well be inferred, but that these ants are not essential ingredients of the offence itself which must have been complete before the acts are done. There is, in my opinion, considerable force in this contention; but at the same time, looking to the words of Section 405, Indian Penal Code, I am disposed to take the view that if there is a contract that the accused is to render accounts at a particular place and 'fails to do so as a result of his criminal act in respect of the money, he can, without unduly straining the language of the section, be said to dishonestly use the money, at that place as well, in violation of the express contract which he has made touching the discharge of the trust by which he came by the money, and so commits the offence of criminal breach of trust at that place also. Mr. Chaudhuri has drawn our attention to the English law on the subject and has also relied upon the decision in the case of Abdul Latiff Yusuff v. Abu Mahammad Kassim A.I.R. 1922 Cal. 46 referred to above. The common law rule is that the proper venue for the trial of a crime is the area of jurisdiction in which the place where a crime was committed. If the crime is an act of omission the place is where the crime is committed is the place where the act which is omitted ought to have been done: R. v. Milner  2 Car. and Kir. 310. So in the case of an act of commission, such an embezzlement when there is no evidence of embezzlement except non-accounting, the venue may be laid in the place where the non-accounting occurred; but this does not apply where there is distinct evidence of misappropriation elsewhere, for then the offence is triable in either place and R. v. Davidson Gordon  7 Cox. C.C. 158 per Alderson B. at page 162. It is interesting to note that the conclusion derived from a consideration of the Indian statutes as discussed above, goes the same way. As for the decision in the case of Abdul Latijf Yusuff v. Abu Mohamad Kassim A.I.R. 1922 Cal. 46, it would be apparent from what has been stated above that I agree in the principle which that decision purports to lay down. I desire, however, to say with all deference to the learned Judges who decided that case that I am unable to agree in the reasons they have given for their decision, The decision purports to follow the case of Colville v. Kristo Kishore (1899) 26 Cal. 746 which, so specifically pointed out in the case of Simhachalam v. Emperor (1916) 44 Cal 912, has no application to a case of criminal breach of trust, as the case related to one of cheating. Mr. Chaudhuri had referred to a passage at page 747 of the report as laying down certain general principles. 1 am unable to read that passage as applying to any but an offence of cheating and to read into it a meaning that would apply to an offence of criminal breach of trust.
9. My conclusion therefore is that where the accused is under a liability to render accounts at a particular place and fails to do so by reason of having committed an offence of criminal breach of trust which is alleged against him, the Court within the local limits of whose jurisdiction that place is situate, may enquire into and try the offence under the provisions of Section 181 Sub-section (2), Criminal Procedure Code.
10. In the present case, leaving out of account the variations which appear in the petition of complaint, the examination of the complaint on oath and the evidence adduced in the case, which may, if at all, affect the merits of the case and not the question of jurisdiction, the prosecution story seems to be that the complainant entrusted the articles to the accused in Calcutta, giving him instructions to sell them if he obtained fair price for them and to remit the amount to Madhupur where the complainant had gone, and also to adjust the account at Burdwan on complainant's return to that place, that the accused sold the articles in Calcutta, remitted a part of the sale proceeds to Madhupur, and when the time came for adjusting the accounts submitted a false account instead of paying in the balance of the sale proceeds. The charge against the accused is that he committed criminal breach of trust in respect of the balance of the sale proceeds.
11. Applying the principles laid down above to the facts of the present case, I am of opinion that the learned Magistrate was wrong in holding that he had no jurisdiction and in discharging the accused on that ground, and that the order of the learned Sessions Judge setting aside the said order of discharge and directing a further enquiry into the matter is a proper one.
12. The Rule is accordingly discharged.
13. I agree.