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Ramesh Chand Verma Vs. Bhagat Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1973CriLJ1033
AppellantRamesh Chand Verma
RespondentBhagat Ram
Cases ReferredState of Madhya Pradesh v. K. P. Ghiara
Excerpt:
- .....plea of the petitioner is that, according to the allegations given in the complaint the alleged offence of criminal breach of trust will be deemed to be committed at faridabad, the courts at jammu have no jurisdiction to try the complaint. secondly it is contended that on a bare reading of the complaint it shows that no offence under section 420, r. p. c. is made out.4. mr. kotwal, appearing for the petitioner, read before me the complaint and the statement of the witnesses and argued that none of the ingredients of section 420, r. p. c. are made out. according to him, it is essential to make out an offence under section 420, r. p. c. that the complainant is made to deliver any property to the ac- cused on the latter's representation. la the present case, there was neither such.....
Judgment:
ORDER

Bakshi Ishwar Singh, J.

1. This is an application under Section 561-A, Criminal Procedure Code for quashing the proceedings under Sections 420/ 406, R. P. C. pending before the Sub-Judge, Judicial Magistrate, Jammu, being taken in the complaint filed by Bhagat Ram, respondent, against the petitioner.

2. The facts which have given rise to this petition are that the respondent filed a complaint under. Sections 420/406, R. P. C. against the petitioner with the allegations that the petitioner was working as an Accountant of K. C. Cinema at Faridabad and he was entrusted with the duty of receiving money on behalf of K. C. Cinema on trust and to dispose of the same in accordance with the instructions of the management of K. C. Cinema. As instructed by them, be had to maintain the accounts and deposit the money received, in the Bank of Baroda Faridabad into the account maintained by the partners of the said Cinema. ' The account had to be rendered at Jammu, the Head-office of the complainant. It was further contended that the accused with mala fide intention did not complete the ledger and from May 1970 to 7th April, 1971, received monies on trust for the Cinema and did not deposit into the Bank as directed. On preparation of the account the complainant came to know that an amount of Rs. 16104.84 has been misappropriated by the accused. After the recording of the statements of the complainant and one of his witnesses, the trial Magistrate issued process against the petitioner under Section 420/ 406, R. P. C. It is at this stage that the petitioner has filed the present petition aggrieved of the order summoning the accused-petitioner.

3. The main plea of the petitioner is that, according to the allegations given in the complaint the alleged offence of criminal breach of trust will be deemed to be committed at Faridabad, the courts at Jammu have no jurisdiction to try the complaint. Secondly it is contended that on a bare reading of the complaint it shows that no offence under Section 420, R. P. C. is made out.

4. Mr. Kotwal, appearing for the petitioner, read before me the complaint and the statement of the witnesses and argued that none of the ingredients of Section 420, R. P. C. are made out. According to him, it is essential to make out an offence under Section 420, R. P. C. that the complainant is made to deliver any property to the ac- cused on the latter's representation. la the present case, there was neither such representation nor the money was delivered ui consequence of the same. So the trial Magistrate had no jurisdiction to issue police under the abovesaid section.

5. As regards the offence under Section 406, R. P. C. was concerned, he argued that the entrustment took place at Faridabad. The direction to deposit the money in the Bank of Baroda, Faridabad was violated there. The offence, if any, became complete at Faridabad. The Courts, at a place where the accounts are to be rendered, have nm jurisdiction to try the complaint, as the rendering of account forms no part of the offence of criminal breach of trust. As the trial Magistrate had inherent lack of jurisdiction so the order issuing the process and the whole proceedings should be quashed by using the inherent power of the Court. Regarding the above-said proposition that iem-dering of accounts at a place does not give jurisdiction to try a complaint under Station 406, R. P. C. Mr. Kotwal relied on the following decisions:

1. 1970 Unreported Judgments (SC) 412.

2. AIR 1957 SC 196 : 1957 Cri LJ 322.

3. : AIR1956All610 .

4. AIR 1948 Nag 80 : 49 Cri LJ 121.

6. Mr. Sehgal, appearing for tht respondent, raised twofold contentions. Firstly he argued that the petitioner should have moved the trial Magistrate and should have asked him to decide the issue whether it has jurisdiction to try this case. The petitioner cannot come direct to this Court under Section 561-A, Criminal Procedure Code. Secondly, he argued that the accounts wcm to be rendered or compiled here, it could not be found as to whether the petitioner has committed the offence of criminal breach of trust. In fact, as alleged in the complaint, it was found after reconciliation of the accounts at Jammu that the petitioner has um-bezzled an amount of Rs. 16104.84. He admitted that the entrustment took placa at Faridabad and the embezzlement also was committed there as the money was not da-posited in the Bank of Baroda as directed, but it was argued by him that the courts at Jammu had jurisdiction due to the fact that the accounts had to be rendered hew.

7. Mr. Sehgal did not reply the argument of Mr. Kotwal regarding Section 420, R. P. C. and I think that he could not. A bare reading of the complaint would show that the complaint does not allege any fact which makes out a case under that section. The allegations, as given in the complaint, simply allege an offence of criminal breack of trust having been committed by the petitioner. So the trial Magistrate had no jurisdiction to issue process under Section 420, R. P. C.

8. In order to appreciate the respective contentions of the learned Counsel regarding the jurisdiction of the trial Magistrate to try the case under Section 406, R. P. C, it is necessary to quote Section 405, R. P. C. which defines the offence and runs thus:

405. 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 be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust.

The necessary ingredients of this section are the entrustment of the property and dishonest misappropriation or conversion to his own use of that property by a person to whom it was entrusted or dishonest use or disposal of the said property in violation of any direction of any legal contract express or implied which has been made touching the discharge of such trust. According to the above ingredients, the offence is complete when the misappropriation or conversion to the use of the accused of the property entrusted, takes place. Rendering of the accounts is not a necessary ingredient of the offence.

9. In order to decide as to the place of the filing of the complaint, Sections 179 and 18 Cr.PC are relevant. Section 179 Cr.PC makes an exception to the general rule that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed as laid down by Section 177 Cr.PC According to this section, the accused can be proceeded against at a place where any consequence had ensued from the commission of an offence. The nature of the consequence contemplated by this section is, which is an ingredient or part of the offence charged. In the instant case, it will have to be seen whether non-rendering of the accounts at Jammu amounts to a consequence ensuing from the commission of offence. As indicated earlier, rendering of accounts is no ingredient of criminal breach of trust. So Section 179.. Criminal Procedure Code will not be applicable and the courts at Jammu where the accounts had to be rendered have no jurisdiction.

10. Section 179, Criminal Procedure Code deals generally with all offences. But the particular section which deals with criminal misappropriation and criminal breach of trust is Section 181 (2), Criminal Procedure Code which for facility of consideration is quoted as below:

181 (2) The offence of criminal misap propriation 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.

This section gives power to inquire or try the cases for the abovesaid offences at places where the property was received or retained. This also does not give jurisdiction to a Court where the accounts were to be rendered.

11. This matter has been considered by different High Courts in various cases. I will discuss a few of them now.

The first case I would like to refer is Gowakaran Lai v. Sarjoo Saw AIR 1921 Pat 85 : 21 Cri LJ 519. In this case accused was complainant's agent and his duty was to carry money and accounts from certain firms to the complainant's firm. He received money from one firm to be handed over to the complainant's firm but failed te do so. It was held that under Section 403, R. P. C. the offence is complete the moment the accused receives or retains the money with a dishonest motive of appropriating it or converting it into his own use. As the accused received money in respect of which the offence is committed at one place to be handed over at another the offence was committed at the former place. The failure to hand over the money is not a necessary ingredient to constitute an offence or criminal misappropriation and is, therefore, not a consequence which has ensued by reason of anything done by the accused. It was further held that the words 'consequence whick has ensued' occurring in Section 179, Criminal Procedure Code, do not apply to tha criminal misappropriation or criminal branch of trust.

12. In Jivan Das Sabchand In re AIR 1930 Bom 490 (FB), it was held that the courts, at a place where the account had to be rendered, have no jurisdiction to try a complaint for criminal breach of trust.

To the same effect are the followimg cases: Fateh Singh v. Emperor AIR 194 All 92 : 41 Cri LJ 325; Debendra Natk Sen v. Rajendra Roy : AIR1955Cal498 ; Hiralal Chowdhry v. State : AIR1956All619 . The last cited case deals with the point very exhaustively and also the previous authorities are reviewed. It was held that Section 181 (2) Criminal Procedure Code when it gives right of trial to a court where the property is received or retained clearly contemplates suck reception or retention by virtue of which the ofl'ence of criminal breach of trust should possibly be perpetrated. It was also held that the non-accounting is no part of criminal breach of trust. It is really the result or consequence resulting from criminal misappropriation. It is a fact which might either be lost or may result in non-accounting but that would not make it an ingredient of offence itself. On the above grounds it was held that the courts where the accounts had to be rendered had no jurisdiction to try the case.

13. There are two Supreme Court authorities which though do not deal with the above proposition directly but can be taken to deal indirectly. It was held that when the place of commission of offence is known and there is no uncertainty about it the offence can be tried according to Section 181 (2), Criminal Procedure Code at a place where the property was received or retained. These two decisions are State of Madhya Pradesh v. K. P. Ghiara AIR 1957 SC 196 : 1957 Cri LJ 322, 1970 UJ (SC) 412.

From the discussion of the above authorities it is clear that according to Section 181 (2), Criminal Procedure Code the offence having been committed at Faridabad in the instant case the Courts at Jammu had no jurisdiction to try the complaint.

14. The argument of Mr. Sehgal that this Court should not interfere at this stage and the objection should be raised before the trial Magistrate first and it should decide, is also not well-founded. There could have been a necessity for the trial Magistrate to decide if there had been some uncertainty about the place where the offence was committed or the same had to be decided after recording the evidence. As indicated earlier a bare reading of the complaint shows that the compainant has alleged in unambiguous terms that the entrustment, the violation of the directions, to deposit the money in the Bank of Baroda and the retention of the money received, had taken place at Faridabad. When from the complaint itself it was clear that the trial Magistrate had no territorial jurisdiction to hear the complaint it would certainly amount to an abuse of the process of the court if these proceedings are allowed to continue. The similar argument was raised and repelled in Hira Lai Chow-dhry's case : AIR1956All619 and the proceedings were quashed.

15. For the foregoing reasons I quash the proceedings before the trial Magistrate.


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