V. B. POONACHA v. STATE OF MYSORE — 1971 DIGILAW 289 (KAR)

( 1 ) THE petitioner, who is ah accused in CC. No. 331 of 1970 on the file of the Judicial Magistrate, First Class (I Court) Bangalore, contended, even before the trial commenced, that the said Court had no jurisdiction to try the case. The lower Court rejected that contention reserving liberty in favour of the petitioner to agitate the question of territorial jurisdiction after the evidence came to be recordded in the case and in case such agitation of the question was justifiable. This petition is directed against this order. The facts necessary may be briefly narrated as follows: the petitioner was a sales assistant in an electric shop syled as "prakash Electricals" run by K. C. Uppal, CW. 1. CW. 1 had deputed the petitioner to Kanpur and Ludiyana, amongst other places, on the business of the firm, CW2. Anandakumar at Kanpur had to pay certain sum to the firm. He paid an amount of Rs. 100 to the petitioner at Kanpur on 9-5-1963. A receipt was issued by the petitioner. CW. 3 Shivakumar uppal at Ludiyana had to pay certain amount to the firm and he paid rs. 360 on 18-4-1968 to the petitioner at Ludiyana. The petitioner issued a receipt for that amount also. As the said amounts were not accounted for by the petitioner to the firm of CW. 1 at Bangalore, CW. 1 complained and a charge sheet alleging an offence under S. 408 of the IPC. was filed against the petitioner in the said Court. On receiving the copies of the documents furnished to the petitioner under S. 173 (4) Crlpc. and when the trial was about to be commenced, the petitioner raised objection on the point of jurisdiction of the Court. ( 2 ) IT is contended on behalf of the petitioner that the material put forward by the prosecution shows that entrustment of the amounts belonging to the firm of CW. and when the trial was about to be commenced, the petitioner raised objection on the point of jurisdiction of the Court. ( 2 ) IT is contended on behalf of the petitioner that the material put forward by the prosecution shows that entrustment of the amounts belonging to the firm of CW. 1 at Bangalore, was made to the petitioner at two places which are Kanpur and Ludiyana, that no material has been produced to indicate as to where, according to the prosecution, the petitinner committed the offence of criminal breach of trust; that the prosecution has not alleged that this offence was committed by the petitioner within the territorial jurisdiction of the Court of the Judicial Magistrate, First Class (I Court) at Bangalore; and that therefore, the jurisdiction to try the case would vest in a Court either at Kanpur or at Ludiyana in regard to the said two amounts because it was at those places that the petitioner had been entrusted with the said funds. Under S. 181 (2) Crlpc. , which deals directly with jurisdiction of Courts in dealing with offences of criminal misappropriation and criminal breach of trust, it is laid down that the jurisdiction is with the Court within the jurisdiction of which entrustent of the funds is alleged to have taken place or with the Court within the jurisdiction of which the said two offences are alleged to have been committed. ( 3 ) THE argument on behalf of the State is that the petitioner was, according to the prosecution, entrusted with these sums belonging to the firm of CW. 1 in his capacity as a sales assistant and he was required to account for these sums to the office of the firm at Bangalore, but he has failed to so account and as such non-accounting is the consequence of the act committed by the petitioner and therefore, the said Court in Bangalore has jurisdiction. Reliance was sought to be placed on the provisions found in s. 179 Criminal Procedure Code. Reliance was sought to be placed on the provisions found in s. 179 Criminal Procedure Code. ( 4 ) SECTION 179 of the Criminal Procedure Code reads as follows:"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. " ( 5 ) WHAT is clear on a plain reading of this provision is that the Court having jurisdiction over the area in which a person is accused of the commission of any offence, for having done certain acts by reason of which such an offence has been committed and the Court having: jurisdiction over any area in which the consequences of such an act have ensued, have both jurisdiction to try the said offence. The illustrations to S. 179 Crlpc. make it abundantly clear that the consequence contemplated under S, 179, crlpc. should be a direct consequence of the act committed by the accused concerned and which constitutes an offence. If a person is wounded at a place 'a' by the accused and that person travels to a place 'b' and dies there, then the Court either at 'a' or at 'b' will have the jurisdiction to try the accused for an offence punishable under S. 302 IPC. ( 6 ) THE offence of criminal breach of trust as defined in S. 405 IPC. consists of entrustment of property or dominion over property and dishonest misappropriation or conversion to one's own use or user or disposal of such property in violation of any direction of law prescribing the mode in which the trust is to be discharged or in violation of any legal contract, express or implied, touching the discharge of such trust, etc. It is, therefore, clear that the ingredients necessary to complete an offence of criminal breach of trust are: entrustment of property or dominion over property in a particular person and such person dishonestly dealing with the property resulting in the effects narrated in S. 405 IPC. Unless both the ingredients are complied with, no offence of criminal breach of trust can be said to have been committed. Unless both the ingredients are complied with, no offence of criminal breach of trust can be said to have been committed. It is, therefore, in my opinion evident that non-accounting of the funds entrusted to a person cannot be said to be a consequence falling within the meaning of S. 179. Crlpc. At the most it is a consequence of the commission of the offence of criminal breach of trust by the person concerned. Non-accounting of the funds entrusted to a person, no doubt, provides convincing evidence to prove that such person has, in fact, dishonestly converted the entrusted funds to his own use so as to bring him within the ambit of S. 405 IPC. Therefore, it is to be held that the contention put forward by the State is not sustainable in law. This view finds support from the decisions of the High Courts of bombay, Calcutta and Allahabad. In re. Jivandas Savchand, AIR. 1930 Bom. 490. it is held that although loss to the principal or employer may be the usual and the normal result of criminal breach of trust, it is neither the necessary ingredient nor even the necessary consequence of the offence of criminal breach of trust, because it is the act itself which in law amounts to the offence apart from any such consequence and, therefore, the jurisdiction to try an offence of criminal misappropriation or criminal breach of trust is governed by S. 181 (2) and not by S. 179 Crpc. In debendra Nath Sen v. Rajendra Chandra Roy, AIR. 1955 Cal. 498. it is held that in a case of criminal breach of trust, failure to account is often convincing evidence of the act of misappropriation but not an incident of the said act, and non-submission of an account being not an integral part of an act of misappropriation it cannot be said that the offence took place not only at the place where the misappropriation took place, but also at the place where the accounts were not rendered. The same view is expressed in hiralal v. State, AIR 1956 All. 619 . The recent decision on this point is the one in b. Patnaik v. A. A. Brinnand, AIR 1970 Cal. 110 . The decision in Jivandas's case (l), has been referred to, with approval, in the other decision cited above. The same view is expressed in hiralal v. State, AIR 1956 All. 619 . The recent decision on this point is the one in b. Patnaik v. A. A. Brinnand, AIR 1970 Cal. 110 . The decision in Jivandas's case (l), has been referred to, with approval, in the other decision cited above. ( 7 ) MOREOVER, it is abundantly clear that the Criminal Procedure Code itself has taken the offences of criminal misappropriation and criminal breach of trust out of the ambit of S. 179 and placed them in S. 181. It is another reason why it cannot be contended that such a case is governed by the provisions of S. 179 Crlpc. Section 181 (2) Criminal Procedure Code reads as follows:"the offence of criminal misappropriation 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. " ( 8 ) A reading of this provision shows that the Court, within the local limits of whose jurisdiction entrustment of the property in question has taken place or the offence of criminal misappropriation or criminal breach of trust has been committed, has jurisdiction to try the offences. It is, certain, and same is the view expressed by the various High Courts in the decisions already narrated in the preceding paragraphs, that non-rendering of the accounts by a person, accused of an offence of criminal breach of trust, is not the same thing as committing the offence of criminal breach of trust. Therefore, it cannot be contended by the State that it is by virtue of this provision that the Court at Bangalore has jurisdiction to try the case. ( 9 ) THE learned Government Pleader lastly placed reliance on the provision found in S. 182 of Crlpc. The said provision reads as follows:"when it is uncertain in which of several local areas an offence was committed. . . . . . . . it may be inquired into or tried by a Court having jurisdiction over any of such local areas. The said provision reads as follows:"when it is uncertain in which of several local areas an offence was committed. . . . . . . . it may be inquired into or tried by a Court having jurisdiction over any of such local areas. " ( 10 ) HE urged that the charge sheet in this case did not allege that the offence of criminal breach of trust had been committed by the petitioner either at Kanpur or at Ludiyana. He pointed out that it was not the specific case of the prosecution that the petitioner had committed the offence in question in any particular place, and as far as the prosecution is concerned, the place in which the offence of criminal breach cf trust is alleged to have been committed by the petitioner is uncertain, and might be at bangalore also. He contended that this case is governed by the above provision in S. 182 Crlpc. He placed reliance on the decision in state of Madhya Pradesh v. K. P. Ghiara, AIR 1957 SC. 196 . In my opinion, this contention is sound. ( 11 ) IT is held by the Supreme Court that the provision found in S. 182 Crlpc. is a specific provision and not a general principle of law and it is supplemental to the third clause of S. 181 (2) of Crlpc. It is also held therein that in view of the facts found in that case, it was apparent that the prosecution had not alleged that the embezzlement had taken place in Bombay itself; that the place of embezzlement was uncertain; and that, therefore, the Court at nagpur had the jurisdiction to try the case. The same reasoning applies, on all fours, to the facts and the circumstances available in this case. In view of the foregoing reasons, it is held that the Judicial Magistrate, First Class, i Court, Bangalore, has jurisdiction to try this case. This revision petition is dismissed. --- *** --- .