V.S. DAVE, J. - - (1.) THIS petition has been preferred under S. 482 Cr.P.C. for quashing the order, dated 8.3.89 of the learned Judicial Magistrate, Ramganjmandi whereby he rejected the application filed by accused-petitioner under Ss. 177 and 181(4) Cr.P.C. The petitioner has also made a prayer for quashing the order, dated 22.12.88 wherein the learned Judicial Magistrate has taken cognizance for offence under S. 499 IPC and summoned the accused-petitioner through bailable warrant in the amount of Rs. 2000/-.
(2.) BRIEFLY stating the facts of the case are that non-petitioner No. 2 Mangalam Cement Limited, Modak District Kota which has its registered office in Kota, filed a complaint in the court of Judicial Magistrate, Ramganjmandi District Kota wherein it was alleged that the complainant is producing the cement and is selling the same through various outlets and one of its dump is in Ghaziabad. They appointed the accused-petitioner Neeraj Raj Garg on .1.5.1987 as their handling agent and an agreement was signed in respect of the same. One of the conditions of appointment of the accused-petitioner was that he will receive the amount of sale of cement from various stockists through bank drafts or cheques and after calculating the same he will remit the amount to the complainant. A specific-instruction was alleged to have been given to the accused-petitioner that he will not receive the money in cash from any of the party. According to the complainant in their accounts Rs. 5,12,426/- were outstanding against M/s Shiva Cement Corporation. The complainant asked the accused for recovery of this amount from M/s Shiva Cement Corporation on which the accused-petitioner on 15.10.87 told the complainant that he has not received any payment from the party so far. Therefore, the complainant sent its representative to the party, i.e. M/s Shiva Cement Corporation who informed the representative of the complainant that the amount has been paid to their handling agent Neeraj Raj Garg in cash who has passed over the receipts also to them. M/s Shiva Cement also informed the complainant that the accused gave them to understand that company has directed to recover the money in cash and therefore, on his saying so the money was paid to him. M/s Shiva Cement Corporation showed the account and stated that they have paid Rs. 3,75,000/- in cash to the accused-petitioner regarding which he also produced the receipts, numbers of which have been given in para 6 of the complaint. This amount was paid to the handling agent, the accused-petitioner, for being remitted to Modak. The accused was summoned at Delhi office of the company on 27.10.87 and was asked about his receiving the money in cash. He initially refused having received any amount but later on when was confronted with the representative of Shiv Cement Corporation admitted the receipt of money and stated that the money has been spent for his personal business and he has no money. On the aforesaid allegations that the accused having received Rs. 3,75;000/- on behalf of the company failed to remit the amount and converted the same to his use, a complaint for offences under Ss. 408 and 420 IPC was instituted. This complaint was forwarded by the learned Magistrate to the police under Ss. 156(3) Cr.P.C. for investigation on 16.11.87 and the S.H.O. police station, Modak registered a case for offence under Ss. 408 and 420 I.P.C. on 22.11.87. When the police registered the FIR No. 89/87 as mentioned above, the accused petitioner filed a D.B. Civil Writ Petition No. 3190/87 before this court wherein it was prayed that the the FIR No. 89/87 may be quashed and set aside and the SHO/IO police station, Modak be directed not to further investigate the case and not to take any further action. Notice of the Writ Petition was issued on 4.12.87 and parties were heard. However, the Division Bench of this court vide order, dated 28.7.88 dismissed the Writ Petition. The accused-petitioner however was granted anticipatory bail in a separate application under S. 438 Cr.P.C. It is pertinent to mention here that several grounds were raised in the Writ Petition including that the case is of the civil nature and that the police station, Modak has no territorial jurisdiction and so also the Judicial Magistrate, Ramganjmandi. The learned Judges of the Division Bench had repelled all the arguments advanced on behalf of the accused-petitioner. However, regarding the question of territorial jurisdiction they observed as under : - "The question as to whether the Judicial Magistrate, Ramganjmandi had the jurisdiction to pass an order in this matter involves an inquiry into question of fact with regard to the place where the alleged misappropriation was done. The provisions, of S. 181 Cr.P.C. on which reliance has been placed by Shri Agrawal, relate to the place of trial in cases of offences mentioned in the said section. The question as to whether the Judicial Magistrate Ramganjmandi has jurisdiction over the matter can be raised by the petitioner before the Judicial Magistrate when the police submits the report after investigation". The police completed the investigation and submitted a charge-sheet in the court of Judicial Magistrate, Ramganjmandi on 22.12.88 under S. 409 IPC. On the same day the learned Magistrate took cognizance and ordered issuance of bailable warrant. The accused-petitioner on 28.2.89 moved an application before the learned Magistrate whereby he challenged the jurisdiction of the Judicial Magistrate, Ramganjmandi and in proceeding with the case due to lack of territorial jurisdiction. This application was heard and dismissed vide order, dated 8.3.89, hence this petition has been preferred under S. 482 Cr.P.C. praying for quashing both the orders, i.e., the order taking cognizance as well as the order refusing to accept the application under Ss. 171 and 181(4) Cr.P.C. It is contended by the learned counsel for the accused-petitioner that there is total non-application of mind by the learned Magistrate while dealing with the question of territorial jurisdiction. It is submitted that specific points have been raised in details in paragraphs 11 to 13 of the application but the same have not been considered. It is submitted that the total amount of Rs. 3,75,000/- which had been received by the accused-petitioner or Shiv Cement Corporation, Modak were to be accounted for at Ghaziabad and further that as per clause VII of the agreement and as per the statutory declaration made by the Company in the Sales-tax Department the principal place of business of the Company was at 19-A Bagh Bhatiyari, Ghaziabad. It is contended that even if we go by the Head Office of the Company that too is not at Modak, hence from a perusal of the entire record which includes the stock register, bill-book and challan-book were to be maintained and kept at the place of business of the handling agent, i.e., at Ghaziabad and this court at Ramganjmandi was riot at all competent to take cognizance. The submission of the learned counsel is that the order, dated 8.3.89 rejecting the application under Ss. 171 and 181(4) Cr.P.C. is absolutely arbitrary and illegal as findings are perverse and based on non-application of mind. It is submitted that the learned Magistrate has erroneously placed reliance on sub-clause IV of the agreement, dated 1.5.87 and a letter purported to have been addressed by Shiva Cement Corporation direct to the accused-petitioner. It is submitted that there is nothing in sub-clause IV of the agreement to infer that document was executed at Modak, on the contrary it shows that the accused was to deposit the money received either at Ghaziabad or at Delhi and so far as the letter is concerned there are manipulation in the same. It is submitted that a criminal case is already pending in respect of forgery having made in the documents for which Addl. Munsiff Magistrate No. 4, Ghaziabad has already taken cognizance of the offence. It is submitted that the statements of the Managing Director of M/s Mangalam Cement Corporation and Senior Accountant Rakesh Moondada and that of V.K. Gupta have been read in one lines. From none of these statements it can be inferred that any transaction took place at Modak. It is further submitted that the entire case was of civil nature and the accused-petitioner has already filed a civil suit in the court of Civil Judge, Ghaziabad for settlement of account which is subjudice. The learned counsel for the accused-petitioner submits that the accused had never disputed the acceptance of Rs. 3,75,000/- on the contrary he has admitted the receipt of as much as Rs. 9,00,000/- on behalf of M/s Manglam Cement Corporation, but he has been assigning a valid reason for with-holding the amount. Since his commission charges are over-due. His submission is that his conduct is protected under the provisions of the Contract Act and there is total absence of mens rea on his part. It is therefore, submitted that proceedings deserve to be quashed at this stage only so that there is no undue harassment to the accused petitioner. Learned counsel for the accused petitioner has relied on several decisions on the point of lack of territorial jurisdiction as well as that court should interfere with the case when the case is of civil nature. He placed reliance on a case reported in K.A.A. Brinanand vs. Shri. Vijoyanand (1) wherein their Lordships of the Supreme Court held that "whenever a question as to the jurisdiction of the court is raised and it is contended that offence was committed in another jurisdiction, it is obligatory for the court to decide and determine in which jurisdiction the offence was committed. Reliance was then placed on Gobind Prasad Lath Vs. Shri Paul (2) wherein the accused was to deposit the sale proceeds in Company's account at Calcutta but he failed to do so and the company of which the Headquarter was situated at Ludhyana proceeded against the accused. The court held that Ludhyana court has no jurisdiction. Reliance was also placed on Kameshwar Prasad Singh Vs. M/s Nalanda Sales Corporation (3), M/s Mysore Manufacturers and Traders, Bangalore Vs. M/s Ray Choudhary, Madras (4) and K.L. Sachdeva Vs. Rakesh Kumar Jain (5) wherein the courts have held that place of trial in case of breach of trust should be where the offence of criminal breach of trust or criminal misappropriation has taken place. Relying on Firm Murli-dhar Banwarilal Vs. Kishorelal Jagannath Prasad (6) the learned counsel submitted that under the provisions of S. 217 of the Contract Act an agent is entitled to deduct his remuneration while working as such. Reliance was also placed on Sat Kumar Vs. State of Haryana (7), Sardar Singh Vs. State of Haryana (8), Trilok Singh Vs. Satya Deo , Tripathi (9), Development Corporation Vidarbha Ltd. Vs. International Engineering Consultancy Services (.10), K.A.M. Anwar Ali Vs. Janab Mohd. Noorullah Saheb (11), Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre (12), Fateh Singh Vs. State of Rajasthan (13) and Asit Das Vs. Jagadish Chandra Saha(14). Mr. Soral appearing on behalf of the complainant M/s Mangalam Cement Corporation, vehemently opposed the petition. His submission is that this court has limited scope under the provisions of S. 432 Cr.P.C. and unless it finds that case falls within one of the three categories mentioned in the section, interference should not be done. His further submission is that the Division Bench of this court has already examined all the points agitated by the learned counsel for the appellant in Neeraj Garg Vs. State: D.B. Civil Writ Petition No. 3190/87 and this court should not do any further exercise at this premature stage when the proceedings have not even commenced in the trial court. Learned counsel submits that the provisions of S. 181(4) Cr.P.C. are fully applicable to the facts of the present case separating the territorial jurisdiction at Ramganjmandi. Learned counsel submitted that there are as many as scores of documents to substantiate that Ramganjmandi court has the jurisdiction to try the case. It is submitted that the accused had submitted 7 documents to substantiate his case which have been given due consideration by the learned Magistrate. He submits that the findings of the learned Magistrate are based on law and facts and the question of jurisdiction is not purely a question of law but mixed question of law and fact which cannot be decided by this court in an application under S. 482 Cr.P.C. His further submission is that statements of the witnesses have been gone into and they clearly indicate that inference could be drawn about Ramganjmandi court having jurisdiction to try the case. It is further submitted that dispute is not of civil nature but accused is criminally liable. There was specific instruction given under the contract that he will not receive the amount in cash but against that he collected the huge amount from the parties' and instead of remitting the same with the company he retained the same with him and converted the money to his own use. It is submitted that firstly he could not handle the cash and even is for a moment if it is conceded that he could have handled it then too he could not have retained the amount. Charging of commission by the handling agent is totally a different aspect and for that if there was a dispute about the settlement of account he could have proceeded in accordance with law but he could not take the money directly . from the parties and retain the same and then raise a false plea of settlement of accounts. Infact the total amount which the petitioner received so far from the parties and which is outstanding against him amounts to about Rs. 35 lakhs and the accused in order to devour this amount filed a frivolous civil suit to cover up his mischief and thus benefitted. It is submitted that the accused has been delaying the proceedings and is playing negative tactics. Learned counsal placed reliance on P. Vijavapal Reddy Vs. The State (Govt. of India)(15), Municipal Corporation of Delhi Vs. Purshottam Dass (16), J.P. Sharma Vs. Vinod Kumar (17), Pratibha Rani Vs. Suraj Kumar (18) & State of Bihar Vs. Murad Ali (19). I have heard learned counsel for the parties, perused the case law as well as have gone through the documents produced by the parties. At the out-set I may mention here that when the case was heard by me on first day I was told that several litigations in this respect crept up between the parties of both the type, i.e. civil and criminal and I was therefore, of the opinion that if the parties continue to proceed in the manner they are proceeding, cases would further multiply and there would be no end to it, hence the parties were asked to explore the possibility of c compromise and settle all the disputes also because ultimately the dispute was about supply of cement and realisation of the amount directly or in directly and of its retention by the handling agent. Ultimately the parties failed to settle the matter outside the court and hence the court proceeded to hear the arguments. Two points mainly emerge in this case for decision and they are (i) whether the case is covered under the provisions of S. 181(4) Cr.P.C., and (ii) whether the dispute is purely of civil nature and criminal court has no jurisdiction express or implied to try the case,
(3.) ON a careful reading of the case law cited it can safely be inferred that in both the eventualities, i,e., when there is either lack of territorial jurisdiction or when the matter is entirely of civil nature, the court should interfere at the earliest stage so that the parties are not unnecessarily dragged into the litigation. It is now well settled that when there is total lack of jurisdiction the court should not proceed and inform the party to go to proper court if he so chooses, but this must be borne out from entire material placed by the complainant, i.e., the complaint or the F.I.R. as the case may be, and papers submitted under S. 173 Cr.P.C. If it is also made out that the case is purely of civil nature the criminal court should quash the proceedings, But at the same time it is also settled law that at that stage only the prosecution documents can be taken note of and the court will decide only on the basis of the material produced before it by the prosecution and that too on bare perusal of the material on record, Inference can be drawn without going into other aspects of the matter. In P.J. Munshi Vs. State (20) while deciding a case under Sec. 197 Cr.P.C. this court held that matter should be decided at the earliest but at the same time material should be properly taken on record, Legislature has while enacting new Code of Criminal Procedure enacted S. 294 Cr.P.C. which gives right to the party to place the documents on which they intend to rely on record along with list and parties can be asked to admit or deny and if that is done no formal proof in respect of the document is required. This court also held in case quoted above that parties can submit affidavit in support of their contentions when preliminary questions are raised and are to be decided. In the instant cage regarding the territorial jurisdiction it is a mixed question of law and fact on which either party has first to place whatever material is in their possession on record and similarly on the second issue the agreement shows that handling agent was not entitled to receive the amount in cash and according to statements of officers of M/s Shiva Cement Corporation the accused Misrepresented to them and obtained the money in cash to the contrary the question of mens ria will have to be decided. It may be that since both the questions are such which go at the route of the entire matter, they should be decided at the earliest but before doing that parties may be a directed to place respective material on record and file affidavit if they intend to do so in support of then-respective cases for the limited purpose and that is precisely what the trial court has stated in its order, dated 8.3.89. I do not find any infirmity at this stage in the order so as to interfere under S. 482 Cr.P.C. It is open to the petitioner to move a fresh application along with affidavits and proper material and the trial court shall decide afresh the questions in case the material is placed.;