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Where there is only a liability to account at a certain place and no duty to deliver any property at that place, the criminal court at the place where the accounting is to be done has no jurisdiction to try an offence under Section 409, I, P.C. The mere liability to account is not sufficient to confer jurisdiction upon the place where the accounting is to be done.

On the question whether non-accounting is embezzlement or not, the observations of Baren Alderson in 'R. V. Davison & Gordon v. Davidson Gordon' 1855 7 Cox's Cr. C. 188 (Z 8), are of great help. Baron Alderson observed:

If the non-accounting in this instance was the offence, no doubt, the offence took place in England but the question is, whether the non-accounting is embezzlement.

And further Baron Alderson said:

Where there is no evidence of fraudulent embezzlement, except the non-accounting, the venue may be laid in the place where the non-accounting occurred, because the jury may presume that there the fraudulent misappropriation was made, but this 'cannot apply' where there is 'distinct' evidence of misappropriation elsewhere.

Thus Baron Alderson was of opinion that if place of embezzlement is known, mere non-accounting does not amount to an offence of embezzlement. The proposition of law enunciated above is the same, which this Court has taken and is in conformity with the opinion of other Courts.

36. The Full Bench case of '1930 Bom 490 AIR V 17 (T), already referred to by me was a case where the complainant entered into partnership with the accused and the accused was sent to Rangoon to manage and conduct business at Rangoon and 'inter alia', he was to send weekly statements on account of partnership to the head office in Bombay and the accounts of the partnership were to be made once a year.

Later Calcutta view is also the same. The case reported in '1925 Cal 613 AIR V 12 (Z 9), referred to above, was not approved in subsequent decision in '1931 Cal 528 (AIR V 18) (X)', as it was based on an entirely wrong reading of the observations of Baron Alderson.

37. '1931 Cal 528 AIR V 18 (X)', is a case which, while disapproving '1925 Cal 613 AIR V 12 (Z 9)', held that:

If there is evidence apart from the fact of non-accounting to show where the misappropriation was committed, the venue must be laid either in that place or in the place where the property was received or retained. If there is no evidence to show where the misappropriation was committed other than the fact of non-accounting then the venue may be laid in the place where the accused failed to account, because that is where the offence was committed within the meaning of Section 181(2).