S R SHARMA Vs. STATE OF WEST BENGAL
HIGH COURT OF CALCUTTA
STATE OF WEST BENGAL
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(1.)This is an application under S. 482, Cr. P.C. for quashing the proceeding pending in the Court of Sub-Divisional Judicial Magistrate at Alipore in connection with the Ekbalpur police station Case No. 180 dated 28-6-90 under S. 408, IPC. The petitioner, Shri S. R. Sharma was appointed as Works Manager of Singh Hindustan Marine Pvt. Ltd. at its Bombay office in 1977. The said company has its registered office which is its head office at Calcutta within the territorial jurisdiction of the Ekbalpur Police Station. The said company also has different branch offices at Bombay and Madras. The petitioner is a Marine Engineer. In January 1988 he was promoted and appointed as Managing Director of the said company and in August 1989 he was appointed as Director-cum-Chief Executive of the said company. It may be mentioned here that in April, 1989 he was transferred from the Bombay office to the Calcutta office of the company and later he submitted resignation in September, 1989 and the resignation was accepted and he was relieved from the service with effect from 15/09/1989. On 16/06/1990 the opposite party No. 2 herein Shri T. K. Bhattacharyya who is the Manager of Singh Hindustan Marine Pvt. Ltd. filed a petition of complaint before the learned Sub-Divisional Judicial Magistrate, Alipore against the petitioner herein praying for a direction upon the Officer-in-Charge, Ekbalpur Police Station to take up investigation in the matter under S. 156(3), Cr. P.C. treating the said petition as FIR. The learned Sub-Divisional Judicial Magistrate accordingly directed police investigation in the matter under S. 156(3), Cr. P.C. It is inter alia alleged in the petition of complaint that the petitioner's company raised bills on their clients M/s. SNP Ship Management and Consultation Bureau (Colaba, Bombay-5) for repairs and supplies done by the company on the ships managed by the said M/s. SNP Ship Management and Consultation Bureau totalling Rs. 35,554.50 p. The said amount was covered by three bills, two of which were issued in January, 1987 and the third one in June, 1987. It is the further allegation that as the said bills were outstanding for a considerable period, the said Ship Management and Consultation Bureau was requested to arrange for payment of the outstanding bills but it was subsequently ascertained in 1990 that the accused S. R. Sharma had realised the said amount in two instalments in the break-up of Rs. 14,784.50 p. on 6-4-87 and Rs. 20,770 on 28-9-87 in settlement of the said bills and took the amounts in cash and granted receipts under his hand but without affixing any revenue stamp thereon. It is also the allegation that the accused misappropriated the said amount and never deposited the same with the petitioner's company and the matter was kept in complete darkness till it was ascertained when Advocate's notice was served on the said Ship Management and Consultation Bureau demanding payment of all dues. It is charged in the petition of complaint that the accused committed offence punishable under S. 408, IPC. In para 2 of the petition of complaint it is stated that the petitioner's company has different branch offices at Bombay and Madras but all the accounts are required to be accounted for at the Calcutta office at 12/5, Momimpur Road, P. S. Ekbalpur. The police in due course after completion of investigation submitted challan against the accused under S. 408, IPC and the learned Magistrate took cognizance on the said challan on 23-10-90.
(2.)The proceeding started in the Court of the learned Sub-Divisional Judicial Magistrate, Alipore on the basis of the challan has been challenged before this Court by this revisional application mainly on the ground that the Sub-Divisional Judicial Magistrate at Alipore has no territorial jurisdiction to try the case. The contention of the accused who is the petitioner herein is that the amount of Rs. 35,554.50 p. which was collected by the petitioner in cash from the said SNP Ship Management and Consultation Bureau was handed-over by the Petitioner in October, 1987 at Bombay to Shri C. J. Singh who was the Managing Director of the company in presence of one Smt. Girija Nair, an employee of the company. It is of course an admitted fact that the petitioner realised the amount stated to have been misappropriated, but there is a factual controversy as to whether the said amount was paid in cash by him in October, 1987 to the Managing Director, Shri C. J. Singh at Bombay or (not ?) at all. There is also a controversy as to whether the said Smt. Girija Nair was present at the time of the alleged payment. It is needless to mention that there is no scope for entering into the merit of the factual controversy between the parties in this revisional application. The question whether the amount has been misappropriated by the petitioner or has been paid by him to the then Managing Director are all questions of facts which will have to be decided at the time of trial on the basis of evidence.
(3.)The question which however has to be decided by this Court now is whether the Sub-Divisional Judicial Magistrate, Alipore has jurisdiction to try the case. As regards the territorial jurisdiction it has been submitted on behalf of the opposite party that in para 2 of the petition of complaint it has been specifically stated that the company has different branch offices at Bombay and Madras but all the accounts are required to be accounted for at the head office of the company at Calcutta. In the affidavit-in-opposition also it has been stated in para 10 that at all material times accounts of the company including its branches at Bombay and Madras used to be, and are, audited in Calcutta by Mr. M. R. Biswanathan and Co., Chartered Accountant of Calcutta and that employees/officers/directors of the said branch offices were-obliged to and have been regularly dispatching the accounts papers to the registered office of the company at its Calcutta address for the purpose of audit and every person at Bombay and Madras branch offices was and is accountable only to the registered office of the company at Calcutta. In para 11 of the affidavit-in-opposition it is stated that in view of what has been stated in the preceding paragraphs money received in Bombay on behalf of the company and misappropriated can be tried also by the Court of the Sub-Divisional Judicial Magistrate at Alipore. Therefore even according to the complainant/opposite party the money was received and misappropriated at Bombay. It is therefore evident that the alleged offence of the criminal breach of trust was committed at Bombay. S. 177, Cr. P.C. provides that every offence shall ordinary be inquired into and tried by a Court within whose local jurisdiction it was committed Evidently, therefore, the Bombay Court has jurisdiction to try the present case. The contention of the complainant opposite party however is that in view of S. 181(4) Cr. P.C. the case is triable by Calcutta Court inasmuch as the money received by the accused and misappropriated by him at Bombay was required to be accounted for by him at the head office of the company at Calcutta within the jurisdiction of the Calcutta Court and as such the Calcutta Court has jurisdiction to try the offence although the offence was committed at Bombay. S. 181(4), Cr. P.C. runs thus :
"181(4). Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person".
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