@JUDGMENTTAG-ORDER
1. This is an application for quashing the prosecution of the petitioner for offences under Sections 406/409, Indian Penal Code, pending before a Munsif-Magistrate at Dhanbad.
2. On the 1st of March, 1968. the opposite party filed a complaint before the Sub-divisional Magistrate, Dhanbad, to the effect that he carried on coal business under the name and style Messrs Narang Brothers, having its branch office at Agra, and the petitioner was his manager and in charge of his coal depot at Firozabad. According to the arrangement, the opposite party was to despatch coal/coke from Dhanbad to be taken delivery of by the petitioner at Firozabad and after the goods had been sold, the petitioner was to send the sale proceeds to him at Dhanbad along with the statement of accounts. That eight wagons of coal/coke were despatched by the opposite party from Dhanbad to Firozabad of which delivery was taken by the petitioner who sold almost the entire coal/coke received by him for a huge sum of money, but paid only a portion of the money out of the sale proceeds to the opposite party. It was stated by the opposite party that in spite of repeated demands by him, the petitioner has failed to make up the deficit amount due to him. The opposite party sent his representative to the place of the petitioner at Firozabad but the latter refused to make payment of the balance of the price of the coal/coke already sold by him and also refused to hand over the remaining stock and did not submit the accounts. The Subdivisional Magistrate, Dhanbad, took cognizance of the complaint under the aforesaid sections of the Indian Penal Code and transferred the case to the file of a Munsif-Magistrate for disposal.
3. The only point for determination is whether the criminal courts at Dhanbad have jurisdiction to try the case.
The relevant provision of law which applies to the facts of the present case is Sub-section (2) of Section 181, Code of Criminal Procedure, which runs as follows:
(2) 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." According to this sub-section the offence of criminal misappropriation can be tried only by a court within whose local limits 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. The petition of complaint in the present case makes it clear that the wagons of coal/coke were taken delivery of by the petitioner at Firozabad and goods were stocked there (vide paragraph three). It is also clear that the goods were sold and the price was received by the petitioner at Firozabad. Thus, the petitioner committed the offence. if any, at Firozabad.
The contention of learned Counsel for the opposite party that the failure to deliver the entire sale proceeds or render accounts at Dhanbad will confer the Dhanbad courts jurisdiction to try the offence is not acceptable as it is by now settled that the offence of criminal misappropriation or breach of trust consists in an act and not in an omission. On the case of the opposite party, the failure of the petitioner to render accounts or to pay the balance of the money at Dhanbad will not confer jurisdiction to courts at Dhanbad to try the offence. It was held in
Under Section 403. Indian Penal Code, 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. The offence was therefore complete at Barisal where he received the money and has not since then accounted for it. It is true that the money was to be made over to the petitioner''s master Mahabir Lal at Mansurganj. Patna city within the jurisdiction of the Patna City Magistrate, but the failure to hand over the money in respect of which the offence of misappropriation was already committed is not a necessary ingredient to constitute an offence of criminal misappropriation and is therefore not a consequence which has ensued by reason of anything done by the accused.
This case is on all fours with the facts of the present case and we respectfully agree with the proposition of law laid down there.
4. Learned Counsel for the opposite party, relying upon State of Madhya Pradesh v. K.P. Ghiara AIR 1957 SC 196 contended that the courts at Dhanbad had also jurisdiction to try the offence. But there is no force in his submission inasmuch as in the above case AIR 1957 SC 196 it was not known where the offence of embezzlement was committed at Bombay or Nagpur Section 182, Code of Criminal Procedure, was applied and the courts at Nagpur were held to have jurisdiction to enquire into the offence whereas in the present case, on the petition of complaint itself the goods were received and sold by the petitioner at Firozabad and as such, on the case of the opposite party, the embezzlement of the amount must have also taken place there. It is not stated in the petition of complaint that the petitioner ever came to Dhanbad after he had received and sold the goods and spent some amount there. It seems to us that the offence can only be tried by a court which has territorial jurisdiction over Firozabad.
5. In the result, the application is allowed and the prosecution of the petitioner pending before the Munsif-Magistrate at Dhanbad is quashed.
