Patna High Court
Kameshwar Prasad Singh vs Nalanda Sales Corporation on 26 June, 1975
Equivalent citations: 1976CRILJ815
ORDER D.P. Sinha, J.
1. This is an application for quashing a proceeding against the petitioner pending before a Magistrate at Patna in respect of offences under Sections 408, 467, 468, 477A and 420 of the Indian Fenal Code instituted on a complaint filed by the opposite party, namely, M/s. Nalanda Sales Corporation Patna through its Divisional Manager. The proceeding is sought to be quashed on the ground that the Patna Court has no jurisdiction to try the case as none of the offences had been committed within the jurisdiction of that Court. On the other hand, learned Counsel for the opposite party contended that the Patna Court is competent to try the case as the consequence of the acts of the petitioner took place at Patna.
2. In order to appreciate the contention of the learned Counsel, it is necessary to state briefly the allegations made in the petition of complaint. There is a big firm, namely, Usha Sales Private Ltd-, New Delhi, which deals In Usha Fans, sewing machines etc. with its head office at New Delhi and Divisional offices and selling centres at various places in India. One of the Divisional offices is at Patna and it carries its business in the name and style of Nalanda Sales Corporation, managed by Bhupendra Nath, Divisional Manager who is the complainant. This Company has a retail shop at Hindustan Building, Bistupur Town, Jamshedpur, which supplies Usha Fans and Sewing machines to customers. The Divisional Office supplies stocks of these articles to the said shops for sales to customers. The petitioner who is an employee of the said Company had been incharge of the stock since 1968. His duty was to keep account of the Fans and Sewing machines supplied to him by the Divisional office at Patna and in respect of all the Sales effected by him, he had to remit the sale-proceeds to the Patna office either immediately or on 10th, 20th and on the last day of the month 'with the term ending sales accounts' report'. He had the responsibility also to maintain proper books of account such as cash books, sales books, stock ledger etc. The account reports on term ending was to give details of transactions done by the shop relating to cash, credit sales, credit realisation, realisation from the parties on behalf of the Divisional Office and other miscellaneous cash proceeds and the expenses incurred and the remittance, made to the Divisional Office together with the details of stock in hand. The Divisional Office at Patna used to send bills in duplicate in respect of sales, one copy of which was to be made by the petitioner to the customer and he was to realise the amounts mentioned in such bills. Sales tax was not to be charged by him because the prices mentioned in the bills were inclusive of Bihar Sales-tax case.
3. On suspicion having been aroused that the petitioner was committing criminal breach of trust by cheating his Divisional Office, the Divisional Office was put to inquiry which revealed that even with a firm like Telco (M/s. Tata Engineering and Locomotive Company), Jamshedpur, the petitioner was not dealing fairly. They got the matter inquired into further and found that a purchase order dated 15-1-73 had been issued by the purchase officer of Telco in favour of the Divisional Office for supply of 125 Prima Ceiling fans and against that order the Divisional Office had despatched 125 such fans to the accused at Jamshedpur, vide its bill No. 2221 dated 25-1-73 for Rs. 34,335.35 for delivery to the customer. The consignment had be<2n sent on 'freight to pay' basis and the freight amount of Rs. 393 40 had been deducted in the bill itself. The original bill together with two copies thereof raised on Telco was also sent to the petitioner for submission to Telco. It was alleged that instead of delivering 125 fans to Telco, the petitioner delivered only 123 fans and did not account for and misappropriated the balance of the two fans and converted the same to his own use. It was further alleged that the petitioner raised a forged bill wherein he enhanced the amount of the original bill (Rs. 34,335.35) to Rupees 36,535.65. It was said that thereby he committed the offence of forgery, cheating, criminal breach of trust etc. It was further alleged that the said amount in the original bill had been increased by charging Bihar Sales-tax from the Telco, although this amount was not realisable as the price mentioned in the original bill was inclusive of the sale-tax. It was alleged that Telco paid the entire amount of Rs. 36,535-65 by a cheque to the petitioner. The petitioner, however, falsely reported in the term ending report dated 31-3-1973 to the Patna Office that he had collected only Rs. 34,335.35 against bill No. 2221 dated 25-1-1973 and he had thereby misappropriated the balance of the amount. It was further alleged that he also made deductions as expenses on account of the freight of Rs. 393.40 paise against M. T. R. No. 37977 dated 25-1-1973 vide his voucher No. 216 dated 10-4-1973, in spite of the fact that the amount of freight had already been allowed in the original bill for Rs. 34,335.35 and thus he had misappropriated the said amount of freight also by falsifying the accounts and by forging the bills and had thereby defrauded the Company.
4. From the above statement of facts contained in the complaint it would appear that all the acts committed by the petitioner which were said to constitute the offences of criminal breach of trust, misappropriation, falsification of accounts etc. had been committed by him at Jamshedpur and as such it was the court at Jamshedpur which was the proper court before which a complaint should have been filed.
5. learned Counsel for the opposite party contended that since according to the terms of his appointment the petitioner was to render the accounts to the Divisional Office at Patna, it should be held that the criminal breach of trust and criminal misappropriation took place at Patna when he submitted the false account to the Patna office. I do not think there is any substance in this contention. The provisions relating to the territorial jurisdiction of the criminal Courts in respect of inquiry and trial are contained in Chap. XV of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code) which applies to the proceedings in question. Section 167 of the Code provides that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed. In this case the offences alleged to have been committed by the petitioner appear to have been committed at Jamshedpur, therefore, it was that court which had power to enquire into and try the offence. Apart from the general provision of Section 167 of the Code, so far as the offences of criminal misappropriation and criminal breach of trust are concerned a special provision has been made in Sub-section (2) of Section 181 of the Code. That Section is in the following terms:
(2) Criminal misappropriation and criminal breach of trust.
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.
It would appear that this case is squarely covered by the said provision of Sub-section (2) ot Section 181 of the Code or Criminal Procedure. There is no allegation anywhere in the petition of complaint that the subject of offence was received or retained by the petitioner within the local limits of the jurisdiction of the court at Patna and it has already been observed that the offences alleged had all, according to the complainant, been committed within the local limits of the jurisdiction oil the court at Jamshedpur.
6. learned Counsel for the opposite party placed reliance on the provisions of Section 179 of the Code of Criminal Procedure which provides 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. In this case no consequence appears to have ensued at Patna by reason of whatever had been done by the petitioner at Jamshedpur. Merely sending of the report relating to the acts done by the petitioner at Jamshedpur was not a consequence which had arisen out of the commission of the acts of the petitioner in this behalf. The act of sending of the report was not an ingredient or integral part of the offence of criminal breach of trust or criminal misappropriation. As it was no part of I he said offence committed at Jamshedpur, it cannot give jurisdiction to the Patna Court under the provision of Section 179 of the Code of Criminal Procedure. In this connection reference was made to the case of Jiwandas Savchand AIR 1930 Bom 490 (FB) which supports the above view. It was clearly held that Section 179 of the Code of Criminal Procedure had no application to cases of criminal breach of trust to which Sub-section (2) of Section 18] applied. A similar view had been taken by Jwala Prasad, J. in Gaukaran Lai v. Saryu Sah AIR 1921 Pat 85 : 21 Cri LJ 519. Under similar circumstance it was observed in this case that under Section 403 of the Indian Penal Code the offence became complete the moment the accused received or retained the money with dishonest motive of misappropriating it by converting it to his own use. It was further observed that it was clear from the express provision made under Section 181(2) of ^he Code of Criminal Procedure that the legislature never intended that the words "consequence which has ensued" occurring in Section 179 should apply to criminal misappropriation or criminal breach of trust. It was further observed that if that was so, there was no necessity of an express provision in Sub-section (2) of Section 181 in respect of the offence of criminal breach of trust or criminal misappropriation. Gaukaran Lai's case was referred to with approval in the case of Shnnti Saroop Gupta v. Chandra Kant Bole by a Division Bench of the Patna High Court 1971 PLJR 650 : 1972 Cri LJ 794. It may be mentioned that the facts of that case were on all fours with the facts of this case. A complaint was filed before the Subdivisional Magistrate at Dhanbad that the complainant carried on coal business under the name and style of M/s. Narang Brothers having its Branch Office at Agra with the accused who was petitioner in that case as the manager incharge of the Coal Depot at Firozabad. According to the arrangement the complainant was to despatch coal/coke from Dhanbad to the petitioner at Firozabad and after the goods were sold, the petitioner was to send the sale-proceeds to the complainant at Dhanbad along with the statement of accounts. Accordingly, eight wagons of coal were despatched by the complainant from Dhanbad to Firozabad of which delivery was taken by the petitioner. The petitioner sold almost the entire stock received by him but he paid only a portion of the sale proceeds to the complainant and in spite of repeated demands he refused to pay the balance of the sale proceeds and part with the remaining stock and did not submit any account. On the basis of that complaint the Subdivisional Magistrate of Dhanbad took cognizance of the offences under Sections 406 and 409 of the Indian Penal Code and transferred the case to the file of a Munsif Magistrate for disposal. The only point which arose for determination was whether the criminal court at Dhanbad had jurisdiction to file the case. Relying on the provision of Sub-section (2) of Section 181 of the Criminal Procedure Code it was held after consideration of a number of authorities including the Gaukaran Lai's case AIR 1921 Pat 85 :21 Cri LJ 519 that the goods were received and sold by the petitioner at Firozabad and the embezzlement of the amount must have taken place there and, therefore, the offence could only be tried by a court which had territorial jurisdiction over Firozabad. In the result the application was allowed and the prosecution of the petitioner pending before the learned Munsif Magistrate at Dhanbad was quashed. It would thus appear that the facts and circumstances of the Shanti Saroop Gupta's case are on all fours with the facts of the present case. It must therefore be held that the Court at Jamshed-pur has territorial jurisdiction to try the alleged offences and the court at Patna has no such jurisdiction.
7. learned Counsel for the opposite party cited the decision in the case of Sheo Shankar v. Mohan Sarup decided by a Full Bench of Allahabad High Court AIR 1921 All 12 :22 Cri LJ 308 (FB) and also the case of Abdul Latiff Yusuff v. Abu Mahamed Kassim AIR 1922 Cal 46 decided by Calcutta High Court. It was found in Sheo Shanker's case from the allegation made in the complaint' that the embezzlement had taken place in Mirjapur and therefore, it was held that the court at Mirzapur had jurisdiction to try the offence of criminal breach of trust. It would thus appear that the said decision, instead of supporting the opposite party, lends support to the view expressed above. The decision in Abdul Latif Yusuf's case does prima facie support the contention of the learned Counsel, but since it runs counter to the view of this Court in the case of Gaukaran Lai AIR 1921 Pat 85 :21 Cri LJ 519 and Shanti Saroop's case 1971 PLJR 650 :1972 Cri LJ 794), I respectfully decline to accept the view expressed in that case.
8. In the result, the proceeding in question which is now said to be pending before a Magistrate at Patna, is hereby quashed. The application is allowed accordingly.