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Bimal Chandra Banerjee Vs. Tez Chandra Banerjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.92
AppellantBimal Chandra Banerjee
RespondentTez Chandra Banerjee
Excerpt:
criminal procedure code (act v of 1898), section 181(2) - penal code (act xlv of 1860), section 408--criminal breach of trust by servant--jurisdiction of trying magistrate--revision--interference by high court. - .....the employment of mr. b. chakerbertty, in such capacity being entrusted with such and such a sum committed criminal breach of trust with respect to the said amount by criminally misappropriating the same and thereby committed an offence punishable under section 408, indian penal code, within may cognizance'. the case was being tried by an honorary magistrate with first class powers at alipore. proceedings had been commenced against the petitioner before in the alipore court on the same charge and he was discharged under section 203 on the ground that that court bad no jurisdiction. the district magistrate, however, on application by the complainant was of a different opinion and directed the present trial. the charges may be objected to on the ground that they are not clear and.....
Judgment:

1. In this case a Rule was issued at the instance of the petitioner, Bimal Chandra Banerjee, sailing on the District Magistrate to show cause why the conviction and sentence upon him (the petitioner) should not be set aside on the ground that the Alipore Court had no jurisdiction to try the case. The petitioner was a Tahsildar in the employment of Mr. Beyomkesh Chakerbertty with reference to Mr. Chakerbertty's Jessore estates. The complaint against him was that he had misappropriated a sum of Rs. 800 which he had received by way of selami from tenants on three dates between January and March 1917. The charges, which are in identical terms, mutatis mutandis were that the petitioner at 'Gangralia Cutchery, Police Station Magnra, District Jessore, being a servant in the employment of Mr. B. Chakerbertty, in such capacity being entrusted with such and such a sum committed criminal breach of trust with respect to the said amount by criminally misappropriating the same and thereby committed an offence punishable under Section 408, Indian Penal Code, within may cognizance'. The case was being tried by an Honorary Magistrate with first class powers at Alipore. Proceedings had been commenced against the petitioner before in the Alipore Court on the same charge and he was discharged under Section 203 on the ground that that Court bad no jurisdiction. The District Magistrate, however, on application by the complainant was of a different opinion and directed the present trial. The charges may be objected to on the ground that they are not clear and precise; for instance, if the entrustment and criminal misappropriation took place at Gangralia as alleged in the charge, it is difficult to see how they could fall within the cognizance of the Magistrate at Alipore unless some other words were added as to the place of misappropriation. Section 181(2), Criminal Procedure Code, provides: '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 pro-party which is the subject of the offence was received or retained by the accused person or the offence was committed.' It has been argued here for the Crown that although the moneys were undoubtedly received at Magura, still the accused was bound to account to the complainant at the Sudder Cutchery at Bhawanipore and that he was actually so called upon to account in the month of May 1917. In presenting bis account at that time he is said to have made certain entries in the rokar, and to have urged on the strength of those entries that only a small sum of 4 annas 2 pies was due by him to the complainant. It may be doubtful whether this would bring the case within the jurisdiction of the Alipore Court--whether it could be said that the offence was committed within the limits of that Court's jurisdicdiction. It is not, however, in our opinion, necessary to discuss that point, because it appears that the case may be decided on the provisions of Section 531, Criminal Procedure Code. That section provides: 'No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the Course of which it was arrived at or passed, took place in a wrong Sessions division, distriot, sub-division or other looal area, unless it appears that such error has in fact occasioned a failure of justice.'' That section is imperative and the Court is required to see in every such case whether there has in fact, been a failure of justice. Now in this case the accused undoubtedly demurred at the first opportunity to the jurisdiction of the Alipore Court. He again presented a petition just before the trial before the (sic) Magistrate commenced, in which he stated that he would be seriously prejudiced in his defense if the trial went on at Alipore instead of at Magura and that it would be almost impossible for him to produce all the necessary papers and witnesses from Magura. That was his apprehension when the oase was about to commence But we do not find in his petition here a single statement to show that those apprehensions have been realized in any way whatever. So far as can be seen from the order-sheet, Tie made no request to the trying Magistrate to summon, any witnesses on his behalf from Magura or elsewhere, or to give him facilities for producing papers or documents. He d6es not appear to have intimated that he wished to call evidence in his defence. In his petition before this Court he does not allege that he did anything of the kind, or that it was refused or that' he was in any way prejudiced by the trial having taken place at Alipore. He merely stated that he desired relief from this Court on the ground that the Magistrate of Alipore had no jurisdiction to take cognizance of the complaint. In those circumstances, we do not think that we should interfere. If does not appear that the petitioner has been prejudicted in the slightest degree. The Rule is accordingly discharged. The petitioner must surrender to his bail and serve out the remainder of his sentence.


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