- (1.) THIS Rule is at the instance of the two accused-petitioners, Brahmanand Goyal and anandpal Goyal, directed against an order dated the 19th January, 1971 massed by shri H. P. Kar, Additional Chief Presidency Magistrate, Calcutta Issuing process against seven accused-persons including the two accused-petitioners, under section 120b read with section 407 of the Indian Penal Code and for quashing the proceedings pending before him, being case No. C/39 of 1971,
(2.) THE facts leading on to the Rule can be put in a short compass. A complaint was filed before the learned additional Chief Presidency Magistrate, Calcutta on the 19th January, 1971 by the complainant, opposite party No. 1, Shri N. C. Chakravorty of Messers. National Tobacco Co. of India Ltd. , against the seven accused persons, including the two accused petitioners. The learned Additional Chief Presidency Magistrate, Calcutta examined the complainant and issued process against all the accused-persons under section 120b read with section 407 of the Indian Penal Code on the same date along with a search-warrant for the seizure of books of account, stock register and other relevant papers. The accused petitioners thereafter appeared in court and were released on bail. The order using process and the resultant proceedings have been impugned, as not maintainable in law, and the present Rule was issued. Mr. S. D. Banerjee, Senior Advocate (with Messers Pritish Chandra Roy and Sakti Pada Chatterjee, Advocates)appearing in support of the Rule raised four contentions viz. that the trial is vitiated by the absence of jurisdiction; that there has been a non-conformance to the mandatory provisions of section 200 Criminal Procedure Code; that there has been a suppression of material facts in obtaining the process; and that the dispute is essentially of the civil nature because of the part realisation of value and the receipt of on demand pronote from the stockists. Mr. Prasun Chandra Ghosh, Advocate (with mr. Sumit Kumar Moitra, Advocate)appearing on behalf of the complainant opposite party No. 1 joined issue. He contended inter alia that there is no absence of jurisdiction as alleged or at all inasmuch as the cognisance taken in this case is of an offence of conspiracy to commit breach of trust; that there has been no non-conformance to section 200 Criminal Procedure Code inasmuch as the duty to examine the other prosecution witnesses only arises when they are present on the date when cognizance is taken; and that the other two grounds urged relate to merits and at this stage, when no evidence has yet been recorded it is premature to quash the proceedings on those grounds.
(3.) WE will take up for consideration the ground of jurisdiction in the first instance inasmuch as it goes to the very root of the case. The general rule of Lex Fori constitutes the very corner stone of the case upon which can only be built the super-structure of the proceedings. The test laid down for such consideration at this stage, when no evidence has been recorded, is to refer to the averments made in the petition of complaint and the evidence if any. A reference in this context may be made to the decision of the Supreme court in the case of State of Madhya pradesh v. K. P. Ghiara, reported in a. I. R. 1957 Supreme Court pp. 196, wherein Mr. Justice Govinda Menon, delivering the judgment of the Court, observed that : "the venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under section. 202, Criminal Procedure Code". We respectfully agree and we find that the averments made in the petition of complaint do not specifically establish the venue of the trial to be within the jurisdiction of the Presidency Magistrate's Court. It is also relevant to consider in this connection that the Court takes cognizance under section 100 (1) Criminal Procedure code of any offence upon receiving complainant of facts which constitutes such offence. It is necessary therefore to turn to the averments made in the petition of complaint and the evidence, if any, to find out whether the facts constituting such offence make out the jurisdiction to be in Calcutta. The position in law again with regard to the question of jurisdiction for the offence of criminal appropriation or of breach of trust is now quite clear. Section 181 (2) Criminal Procedure Code as also the relevant decision on the point make that clear. Without multiplying the number, a reference may be made to the well-known case (1) of Daityari tripathi v. Subodh Chandra Chowdhury reported in A. I. R. 1942 Cal. pp. 575. Mr. Justice Blagden delivering the judgment of the Court considered different decisions of the various high Courts and observed at pp. 577 that "neither failure to account for breach of contract, however, dishonest, is actually and in itself the offence which S. 405, Penal Code defines but merely evidence of that offence. " therefore an offence of criminal breach of trust is not triable at a place where neither the factum of entrustment nor the positive act of conversion had taken place, because an offence of criminal breach of trust always consists in an act and not in an omission. Mr. Banerjee appearing on behalf of the two accused petitioners submitted that the petition of complaint clearly does not lay the foundation of the offence of conspiracy and far less establish the factum of entrustment in calcutta, in either of which case the jurisdiction should have been in Calcutta. In support of his submission he referred to paragraph 4 where in just a vague reference to an entrustment without at all alleging as to whether it took place in Calcutta or in Gauhati is given. Mr. Banerjee argued that the relevant consignment notes disclose that the despatch was from Gauhati to dibrugarh, conferring thereupon the jurisdiction in Assam. He further contended that as to the purported conspiracy, the allegations were again very indefinite and in the relevant paragraph viz. paragraph 7 there is no averment as to where and how and when the alleged conspiracy took place. In short, according to Mr. Banerjee, the foundations of a criminal conspiracy were not laid. Mr. Prasun Chandra ghosh submitted that these contentions are not tenable and the address of the complainant having been shown to be in Calcutta the entrustment must be deemed to have been here. The complainant company has a depot or agency in Gauhati also and apart from that the consignment notes rule out that such entrustment was made in calcutta. It has now to be considered. Whether the charge of conspiracy referred to in the petition of complaint would confer jurisdiction. It is undoubtedly true that the foundations of a conspiracy have not been laid out and there are no avernments in the petition of complaint as to when and where and how the conspiracy had taken place. The petition of complaint unfortunately is delightfully vague. Neither in paragraph 5 where merely a conspiracy is referred to nor in paragraph 7 where the same has been reiterated, there is mention as to how and where and when such conspiracy had taken place. The examination of the complainant on oath as recorded by the learned Presidency Magistrate does not also throw any light either way. In the light of the position in law as referred to above and in view of the facts and circumstances of the case as made out until now, we have to hold that the offence alleged has not been specifically stated to have taken place within the jurisdiction of the Presidency Magistrate's Court and as such the objection taken at the instance of the accused petitioners, relating to the absence of jurisdiction, stands.;