P L D 1962 Azad J & K 31 (PLP)

ABDUL HAMID KHAN, J.--‑This is an acquittal appeal against the order of Sessions Judge, Poonch, dated 3‑9‑1961 whereby the conviction of the accused‑respondent by the order of Sub- Judge, Magistrate, 1st Class, Bagh, dated 1‑8‑1960, under section 406, A. P. C. was set aside and the accused acquitted. The facts of the case briefly stated are that one Sardar Muhammad Roshan Khan, who belongs to village Rangoli. Thana Dhirkot, entrusted the accused‑respondent Muhammad Shafi a sum of Rs. 1,895, a suit and two shirts on 7‑3‑1959 at Karachi to deliver the same to Sardar Dahwar Khan shopkeeper at Dhirkot, Tehsil Bagh, but the same were misappropriated by him and never delivered to Dahwar Khan. A report to this effect was lodged in Thana Dhirkot by Sardar Muhammad Ashraf Khan brother of Sardar Muhammad Roshan Khan, when on demand by him on 16‑3‑1959, the respondent, according to him refused to deliver the cash and the articles entrusted to him. Exhibit P. B., an amanatnama, in original, executed by the respondent at Karachi, on 7‑3‑1959 was also produced before the police at the time of report, which was lodged at the Thana on 16‑5‑1959. The accused denied the charge stating that Exh. P. B. the amanatnama was never executed by him. The trial Magistrate held the accused guilty under section 405, A. P. C. and sentenced him to six months' rigorous imprison ment and a fine of Rs. 500 or in default of payment of fine to further six months' rigorous imprisonment under section 406, A. P. C. On appeal, the learned Sessions Judge, Poonch, set aside the conviction and sentence of the accused‑respondent and acquitted him for the reasons that there was undue delay in the lodging of the first information report and that the genuineness of the document Exh. P. B. was doubtful because it bore the signatures of Sardar Muhammad Ashraf Khan as a marginal witness, who, as he admitted before him (the Sessions Judge) had never visited Karachi and that the adhesive stamp had been affixed after the execution of the document. During the course of arguments, the learned counsel on behalf of the Government pointed out that the execution of Exh. P. B. was proved beyond doubt because the marginal witnesses to the document, who were quite reliable witnesses had in clear terms deposed that this document was executed at Karachi when the cash and the articles were entrusted to the accused‑respondent to be delivered to Sardar Dahwar Khan at Dhirkoth He contended that Sardar Muhammad Ashraf Khan, the complainant in this case, had never signed this document as a marginal witness, but that he had in fact been made to sign this document on its reverse side by the police at the time it was handed over by him to the police and that this fact had been clearly recorded by the police in its recovery memo. Exh. P. G.

1. This contention of the learned counsel is correct. It appears that the learned Sessions Judge did not read the recovery memo. Exh. P. G. 1 and that is why he was led to believe that the signature of Sardar Muhammad Ashraf Khan on the back of Exh. P. B., which was executed at Karachi, was a signature in his capacity as a marginal witness of the document. The learned counsel on behalf of the appellant further drew our attention to Exh. P. D. which was executed by the accused‑respondent on 3‑6‑1959 in which he admitted the receipt of the cash amounting to Rs. 1,895, the suit and two shirts from Sardar Muhammad Roshan Khan at Karachi and which he had utilized but promised to pay back the same by instalments. This according to the learned counsel was further admission of guilt on the part of the accused‑respondent. In reply it was stated on behalf of the accused‑respondent that Exh. P. B. was not a genuine document, that Exh. P. D. had no value in law because the same had been executed under undue influence during the course of the investigation of the case by the police and that the trial Court in Bagh had no jurisdiction to try this case as the alleged offence was committed at Karachi. As for the genuineness of the document Exh. P.B., its genuine ness in our opinion is beyond doubt. The scribe of Exh. P. B. Muhammad Younas Khan and its two marginal witnesses Raja Muhammad Afzal and Raja Hameedullah are quite reliable witnesses and we have no reason to disbelieve them. No doubt Muhammad Younas Khan the scribe is the brother‑in‑law of Sardar Muhammad Ashraf Khan complainant and the two marginal witnesses Raja Muhammad Afzal and Raja Hameedullah were in the employment of Sardar Muhammad Roshan Khan at Karachi, when he delivered the amount and the articles to the accused‑respondent, yet we do not disbelieve them in view of the conduct of Sardar Muhammad Roshan Khan, Sardar Muhammad Ashraf Khan and Sardar Dahwar Khan after the point blank refusal of the respondent to deliver the amount and the articles to Sardar Dahwar Khan. Telegrams and letters were addressed by them to each other soon after with the result that Sardar Muhammad Roshan Khan sent the deed of trust Exh. P. B. to Sardar Muhammad Ashraf Khan, his brother, and directed him to lodge the report. If in fact no amount had been entrusted by Sardar Muhammad Roshan Khan, why of all the persons, the accused‑respondent should have been singled out to be implicated in this way. It has been argued that Exh. P. D. which was executed during the investigation of the case is in fact an admission of guilt by the accused and in that respect supports the prosecution version. The execution of this document is not denied by the accused though he states that it was executed by him in order to escape punishment. It is correct that Exh. P. D. was executed by the accused‑respondent in the circumstances in which he could not have exercised a free will and if left to himself would not have executed it. We, therefore, do not attach much importance to this document but even if we ignore it, yet in our opinion, there is sufficient material on the file to show that the cash and the articles, as alleged by the prosecution, were entrusted to the accused respondent, who failed to deliver the same to Sardar Dahwar Khan at Dhirkot. As for the delay in lodging the first information report, the explanation offered by the complainant is quite satis factory. He had been persuading the accused all the time to honour the trust and the accused had been promising to pay and it was only when the complainant was disappointed that he lodged the report. , Now remains the question whether the Court had jurisdiction to try the accused‑respondent. In this connection, we have to look into the provisions of section 181 subsection (2) Criminal Procedure Code which says that the offence of criminal breach of trust or of criminal mis appropriation 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. Here, in this case, the property was received by the accused at Karachi and he retained it with him in order that he might deliver it to Sardar Dahwar Khan when he visited Dhirkot in Tehsil Bagh, Azad Kashmir. There is no direct evidence that when the accused came to Dhirkot i.e., within the local limits of the trial Magistrate, he had the entrusted property with him, and, there fore, nothing can be said with regard to the retention of the property by the accused within the local limits of the jurisdic tion of the trial Court. Naturally therefore, we have to look to the last part of section 181 subsection (2) Criminal Procedure Code, and have to see whether the offence was committed within the local limits of the jurisdiction of the trial Court. According to the direction of Sardar Muhammad Roshan Khan, who had entrusted the property, the accused had to deliver the same at Dhirkot but this he never did inspite of the fact that he was approached and persuaded to deliver the same but the accused- respondent avoided payment and when the time arrived when he had promised to pay, he slipped out to Murree. There is evidence on the record that when pressed too much, the accused refused point blank to make the payment. In our opinion, the offence of criminal breach of trust was committed by the accused when he refused the payment at Dhirkot and, there fore, the trial Magistrate had jurisdiction to try the offence. In this connection, we may conveniently refer to a Division Bench ruling of the Calcutta High Court A I R 1925 Cal.

613. In this case, the complainant had entrusted the articles to the accused in Calcutta, giving him instructions to sell them, if he obtained fair price for them and to remit the amount to Madhupur where the complainant had gone, and also to adjust the account at Burdwan on complainant's return to that place. The accused had sold the articles in Calcutta, remitted a part of the sale proceeds to Madhupur and when the time came for adjusting the accounts, submitted a false account instead of paying in the balance of the sale proceeds. The charge against the accused was that he had committed the criminal breach of trust in respect of the balance of the sale proceeds. The trial Court of Burdwan, where the complaint was lodged, discharged the accused on the ground that it had no jurisdiction and that the offence was triable in Calcutta. Their Lordships of the Calcutta High Court, after discussing the law on the point at length, came to the conclusion that the Court at Burdwan had jurisdiction to try the offence. Their Lordships had posed the question, "Now, where is an offence of criminal breach of trust committed ?" and answered it as under :‑ "To determine this we have to examine the provisions of S. 405 of the Indian Penal Code which defines the offence. The offence is complete when there is dishonest misappropria tion or conversion to one's own use or when there is dishonest use or disposal in violation of any direction of law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which the accused has made touching the discharge of the trust, or when the accused wilfully suffers any other person to do so. The place where the offence is committed is where there has been misappropria tion or conversion or user or disposal of the property or where the accused wilfully suffers any other person to use or dispose of the property. In some cases, no doubt that the place where these acts are committed can easily be ascertained ; while in by far a large majority of cases the dishonest intention of the accused is only patent on‑ his failure to discharge the trust in accordance with the directions of law or some legal contract, express or implied. It is true that it may sometimes happen that long before the time fixed for the accounting or payment the actual misappropriation has taken place, and the offence was complete at that point of time, but the prosecutor remains ignorant of it until such time as he finds that the accused fails to pay or to account. Indeed this must be so in many cases for the offence neces sarily involves secrecy and the exact manner, point of time or place, where the misappropriation, conversion, use, disposal or sufference takes place, remains more often than not, a matter within the special knowledge of the accused himself. In this class of cases, the overt act of the accused showing his dishonesty is essentially necessary to be proved to establish the offence, and till the time arrives when that act is done it cannot be said with certainty that the offence was committed. A very common case of this kind is where the accused received the money for the prosecutor and fails to account for it. Mere retention of the money would not necessarily raise a presumption of dishonest intention but it is only a step in that direction. Over acts that are necessary to be proved in such cases may be of various kinds ; e.g., retention for such a length of time as would justify the inference that the accused did not intend to pay at all, failure to credit the receipts in the books, rendering a false account, failure to account, failure to pay in the money in accordance with the terms of the contract, and so on. Mr. Chatterjee has contended that these overt acts are but evidence of the fact that the offence of criminal breach of trust has already been committed by the accused, and from these acts his dishonesty may very well be inferred, but that these acts are not essential ingredients of the offence itself which must have been complete before the acts are done. There is, in my opinion, considerable force in this conten tion, but at the same time, looking to the words of section 405 Indian Penal Code, I am disposed to take the, view that if there is a contract that the accused is to render accounts at a particular place and fails to do so as a result of his criminal act in respect of the money, he can, without unduly straining the language of the section, be said to dis honestly use the money, at that place as well, in violation of the express contract, which he has made touching the discharge of the trust by which he came by the money, and so commits the offence of criminal breach of trust at that place also." We think that their Lordships of the Calcutta High Court have very capably dealt with the commission of the offence of criminal breach of trust in the light of the provisions of section 181 subsection (2) Criminal Procedure Code. We apply the same reasoning to this case, and repel the contention of the learned counsel for the accused‑respondent that the trial Court had no jurisdiction to try the offence. Our attention was drawn by the learned counsel for the accused to a line in Exh. P. B. which is to the effect that after the delivery of the entrusted property at Dhirkot, he had to hand over the receipt to Sardar Muhammad Roshan Khan at Karachi, he was of the view that it meant that the accused had to account for the entrusted property at Karachi where he had to produce the receipt and not at Dhirkot. This may be so but in our opinion, the main thing was the delivery of the entrusted property at Dhirkot for which the trust was created and not the mere production of the receipt by the accused at Karachi for the satisfaction of the creator of the trust, Sardar Muhammad Roshan Khan. The offence, in our opinion, was committed when on arrival at Dhirkot, the accused‑respondent failed to deliver the articles. Non‑production of receipt, in our opinion, was another breach in the discharge of trust. For the reasons thus stated, we accept the appeal and setting aside the order of acquittal of the Sessions Judge, Poonch, dated 3‑9‑1961, up‑hold the conviction and sentence of the accused- respondent under section 406 A. P. C. passed by the Sub‑Judge, Magistrate 1st Class, Bagh, by order dated 1‑8‑1960. The accused, who is on bail, is put under custody to undergo the sentence of imprisonment and fine passed on him by the trial Court. K. B. A. Appeal accepted.