D. SURYA RAO Vs. LIAQUAT ALI KHAN
HIGH COURT OF ORISSA
D. Surya Rao
Liaquat Ali Khan
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R.N. Misra, J. -
(1.) THIS is an application under Sections 439 and 561 -A, Code of Criminal Procedure to quash Complaint Case No. 63 of 1973 which is pending trial in the Court of the S.D.M. at Nowrangpur.
(2.) THE opposite party is a resident of Nowrangpur in the district of Koraput. For the purchase of a T.M.B. chassis he approached the Andhra General Finance Corporation (Sri Ram Das Motor Transport Private Limited) of Kakinada and entered into a hire purchase agreement. It was stipulated that the amount of Rs. 68, 000/ - and odd would be paid in equal monthly installments of Rs. 2730/ - to the financier until the total liability was liquidated. The arrangement was that the instalments would be paid by bank draft. The first four instalments were paid in time; but there was default in the matter of payment of the 5th and the 6th instalments. On 4 -6 -1972, the Petitioner who is the accused before the learned Magistrate came to Nowrangpur and represented to the hire -purchaser (complainant) that if he would pay the 5th and the 6th instalments in cash to him he would obtain a clearance certificate in condonation of the default and regularise the matter. As the complainant was not immediately in a position to pay the amount he wanted a day 's time, but the accused said that he had to proceed to Chitrakonda on work and required the complainant to come with the money to Kakinada so that the work would be done in the manner indicated by him. On 6 -6 -1972, the complainant along with some of his relations proceeded to Kakinada and paid the money to the accused who happens to be the managing partner of the firm. The money was received and the accused represented to the complainant that a regular receipt would be sent later. The complainant and his relations returned, but when no acknowledgment came the complainant 's father sent a telegram for the formal receipt. On 4 -7 -1972, the complainant was informed by the accused that he had not received the payment of Rs. 5460/ -. It was followed by a letter where there was denial of receipt of the amount and seizure of the vehicle and forfeiture of the previous instalments paid was threatened. On 9 -8 -1972, the complainant with a relation proceeded to Kakinada and contacted the accused. He was adamant and indifferent and stated that he had not received the 5th and the 6th instalments, and, therefore, cancelled the agreement and forfeited the amount already paid towards loss and damages. Thereupon on 11 -10 -1972 the opposite party lodged a complaint -before the S.D.M. Nowrangpur alleging commission of an offence of cheating punishable under Section 420, Indian Penal Code by the Petitioner.
The learned Magistrate directed an enquiry under Section 202, Code of Criminal Procedure before issuing process and after such enquiry was made on 30 -10 -1972, on being satisfied that a prima facie case against the Petitioner under Section 420, Indian Penal Code had been made out took cognizance of the said offence and directed process to issue. The accused entered appearance before the learned Magistrate and challenged the maintainability of the case on account of want of territorial jurisdiction of the learned Magistrate and also on the ground that the ingredients of the offence of cheating were not made out and, therefore, taking of cognizance was to be rescinded. The learned Magistrate heard the parties and by his order dated 7 -4 -1973 overruled the stand of the accused and directed that the accused be tried. The aforesaid order of the learned Magistrate is impugned in this Court and in this application the accused seeks to have the criminal case against him quashed in exercise of inherent powers of this Court.
On the arguments advanced before me by the learned Counsel for the parties three questions arise for determination:
(1) Has the S.D.M. Nowrangpur territorial jurisdiction to try the offence?
(2) On the allegations, is the offence of cheating madeout?
(3) Is it proper for this Court to quash the proceeding at this stage?
(3.) POINT No. - (1) -Mr. Mohanty for the Petitioner has contended that on the allegations made out in the petition of complaint the offence, if any, must be found to have taken place at Kakinada beyond the territorial jurisdiction of the learned Magistrate. Therefore, the S.D.M. of Nowrangpur could not have taken cognizance of the case and is incompetent to try the offence. Mr. Mohapatra for the complainant on the other hand has contended that as the petition of complaint shows a part of the cause of action certainly arose within the jurisdiction of the Court at Nowrangpur and, therefore, cognizance has been properly taken.
Chapter XV of Part VI of the Code of Criminal Procedure deals with jurisdiction of criminal Courts in inquiries and trials. Section 177, Code of Criminal Procedure provides:
Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
Some of the subsequent sections provide exceptions to this general rule. Section 179, Code of Criminal Procedure provides,
Where 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 Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
According to the complainant it is on the representation at Nowrangpur that if the money was paid even at Kakinada the default would be condoned and release of the vehicle would be obtained the money was parted with at Kakinada. A series of facts have constituted the offence according to the complainant. It started with the representation at Nowrangpur and ultimately culminated with the payment at Kakinada subsequently followed by denial of receipt. Both the parties rely upon a common decision of the Supreme Court in support of their respective stands in this regard Satwant Singh v. State of Punjab : A.I.R. 1960 S.C. 266. Facts of that case are the following : After evacuation of Burma during the second world war its Government was located at Simla. In August 1942 the Government of Burma advertised inviting claims from contractors who had executed works or had supplied materials in. Burma and had not yet been paid. The accused had worked as a contractor in Burma and submitted his claims. These claims were sent by Government of Burma to one Major Henderson at Jhansi in March and May, 1943 for verification as he was the officer who had knowledge of these matters. This officer certified many of these claims to be correct and sent the papers back to Simla. On the certification of the claims by Major Henderson, the Finance Department of Burma Government sanctioned the sum and the Controller of the Military Claims at Kolhapur was directed to pay the amounts sanctioned. On the request of the accused cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and these cheques were encashed at Lahore. The charge framed against the accused stated that he had committed the offence of cheating at Simla and Kolhapur. Kolhapur then was a place outside British India. The question for consideration was as to where did the offence of cheating take place. It was held that the posting of the cheques at Kolhapur could not be regarded as delivery of the cheques to the accused at Kolhapur because the post office at that place could not be treated, in the circumstances of the case, as the agent of the accused to whom the delivery of the cheques had been made.
In fact the cheques were not delivered to the accused at Kolhapur but were delivered to him at Lahore. The misrepresentation by the accused was at Simla and the false certification of the claims as true by Henderson was at Jhansi. Simla and Jhansi were places in British India. As the result of the misrepresentation by the accused and the false certification by Henderson the Government of Burma was induced to make the payment of a large sum of money to the accused at Lahore. The reading of the judgment clearly gives an impression that according to the learned Judges the offence of creating took place in part at Simla, Jhansi and Lahore. In fact, in paragraph 18 of the judgment it has been said:
The offence of cheating by the Appellant could have been tried either at Lahore or at Simla.
It is difficult at this stage to come to a definite conclusion that the trial Court has no jurisdiction. On the allegations in the petition of complaint the stand of the Petitioner that no part of the offence took place at Nowrangpur cannot be held to have been made out. The first point must, therefore, fail.;
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