P L D 1961 Dacca 13 (PLP)

10. Mr. Hossain has also referred to paragraphs 3 and 7 of the petition of complaint wherein it is stated, inter alia, that the jute thus purchased with Company's money was to be delivered at the Company's office at Narayanganj and the accused Nos. 1 and 2 were also to render satisfactory accounts to the Company at Narayanganj regarding receipts of money by them from the Company, Paragraph 7 of the petition of complaint also shows that the allegation was that the accused did not deliver the jute shown to have been purchased.

11. The statement under solemn affirmation of the complain ant Rakhal Chandra Saba, dated 8‑6‑58, also clearly shows that the accused were to deliver jute at Narayanganj and they were also to render accounts at Narayanganj.

12. Thus on the facts it appears that the jute was to be delivered at Narayanganj and an account was also to be given at the same place.

13. So, far as the legal position goes, section 181 (2) of the Code of Criminal Procedure reads as follows :‑ "The offence of criminal misappropriation or of criminal breach of trust 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." In the present case it is true that the jute in question was received and retained by the petitioners at Char Mugaria ; but criminal breach of trust arose on failure to deliver jute and furnish accounts at Narayanganj. As per terms of the contract the petitioners were not absolved from their responsibility until the delivery of jute, and their giving accounts, at Narayanganj in terms of the second part of section 405, P. P. C.

14. Mr. Rouf for the petitioners contends that the learned Additional Sessions Judge wrongly relied upon the case of Mohru Lal v. Emperor (37 Cr. L J 384=A I R 1936 All. 193), which held as follows: "Section 405,

1. P. C., falls into two parts. The first part is a positive part and deals with dishonest misappropriation or conversion of property. To charge a person under this part of the section there should be an allegation that at a particular time and place that person had dishonestly misappropriated or converted to his own use property which was entrusted to him. Now the second part of the section may be a negative part. It consists of dishonestly using or disposing of in violation of (a) any direction of law or (b) any legal contract touching the discharge of the trust. Where there is a violation of a direction of law or a legal contract the proof of that violation may be by negative evidence that the direction of law or the contract has not been fulfilled. Where the direction of law or the contract requires that the accused should dispose of the property or render account at a particular place then the Court having jurisdiction at that place will have jurisdiction to try the offence of the second part of section 405, Penal Code." Mr. Rouf's contention is that as according to the allegation the misappropriation had completed itself by diversion of Jute and their deposit in a godown different from the one stipulated in the contract at Char Mugaria, the second part of section 405, P. P. C., was not attracted and section 181 (2) of the Code of Criminal Procedure would not apply. His view is that failure to account was only evidence of the offence. He has, in support of his contention, cited the case of Daityari v. Bubodh Chandra Choudhury (44CLJ132), (a Calcutta High Court decision) wherein it was held inter alia as follows :‑ "Section 179, Criminal P. C., applies only to those offences which by their very definition consist of an act and its con sequence (e.g., culpable homicide, which, omitting matters immaterial for this purpose, consists in "causing death"), and not, therefore, to Criminal Breach of Trust. A loss to anybody forms no part of the statutory definition of that offence. Neither failure to account for breach of contract, however, dishonest, is actually and in itself the offence which section 405, of the Penal Code, defines, but merely evidence of that offence. Section 181 (2), Criminal P. C., does not, therefore, confer jurisdiction on a Court at a place where the accused has failed to account or to dispose of property as per contract." In the above case Blagden, J., observed with regard to the Allahabad decision (A I R 1936 All. 193) as follows : "We cannot, however, help feeling that the learned Baron's observations may have influenced the Allahabad High Court in Emperor v. Mohan Lal. It is certainly true that this decision is irreconcisable with the Rangoon decision already cited and being a decision of a Bench is of higher persuasive authority. But we cannot, with great respect, agree that the fact that a particular event does not happen at point X is any evidence, or gives any ground for assuming that A, who never was at point X at all, committed at that point an offence at all events one which by its definition consists in an act. Nor can we agree with the reasoning of the Court at p. 646 that section 405, I. P. C., falls into two parts, one positive and the other negative. It seems to us that to "use" or to "dispose of" property is every bit as positive an act a9 to "misappropriate" or "convert" it. Once again, we think that evidence of an act has been confused with the act it evidences." It is true that the decision in the Allahabad case was depreated by Badgaden, J., in 44 C L J 132 ; but the latter case was a case of dishonestly disposing of money collected in mofasil which under the terms of contract was to be deposited in. Calcutta and it was under those circumstances that it was held that the Calcutta Magistrate, namely, the Chief Presidency Magistrate, had no jurisdiction.

15. In any event, the following concluding lines of the judgment in 44 C L J 132, show that it is a weak judgment and it was more out of pity for the parties that the Judges gave that decision right away without referring it to the Full Bench "In this state of the authorities it is unfortunately impossible for us to emulate pope's . . . . Here, who in a modest way Agreed with everyone like Gay' and we must either make up our own minds about the matter or refer the matter to a Full Bench. Important as it is, the present question hardly seems to us to justify our inflicting on the parties the delay and hardship the latter course necessarily involves. With the assistance we have bad from the Bar we have been able to form a clear opinion, which is that on the charge framed and it is incurable by any amendment suggested to us the learned Chief Presi dency Magistrate has no jurisdiction to entertain the proceedings now in question."

17. The present case can be distinguished on the ground that it is not a case of failure to deposit money at headquarters as in the case cited above but of failure to deliver the very goods at Narayanganj and also to render accounts there.

18. The decision relied upon by the learned Additional Sessions Judge, namely, that of 37 C L J 284, is also in agreement with earlier ruling of the Calcutta High Court as Gunanda Dhone v. Lala Santi Prokash Nanley (29CWN432) wherein it was held that where there was an accused person bound to render accounts, the Court, which bad jurisdiction to take cognisance of criminal breach of trust and further, that such jurisdiction existed even where there was clear evidence of embezzlement in another place.

19. Mr. Rouf for the petitioners has ultimately cited the decision Fateh Singh v. Emperor (41CLJ325) in which case as also in 44 C L J 132 (as discussed above) the decision in 37 C L J 284, came in for some examination, Mulla, J., at page 328 of the Report 41 C L J 325 observed as follows :‑ "Upon a very careful perusal of that case, I find that it is clearly distinguishable from the present case and affords no authority for the proposition that where there is only a liability to account at a certain place and no duty to deliver any property at that place, still the Criminal Court at the place where the accounting is to be done has jurisdiction to try the offence. In my judgment, the learned Judges who decided the case in Mohru Lal v. Emperor, drew a clear distinction between mere liability to account and the further duty to deliver property at a particular place." The passage quoted above, will show that the decision in Mohru Lal's only received added strength from Mulla, J., in 41 C L J

325. The other reasonings of Mulla, J., in Fateh Singh's case leave no doubt that there is no marching away from the decision reported in A I R 1936 All.

193. So, this case also does not help Mr. Rouf in any way. On the other hand, it goes against him in the facts of the present case. It was held in that case 41 C L J 325 as follows "Where it is alleged that the accused has failed to account for the property then the second part of section 405, I. P. C., will apply and jurisdiction exists at the place where the property should have been delivered by the accused. Where, however, there is only a liability to account at a certain place, and no duty to deliver any property at that place the Criminal Court at the place where the accounting is to be done has no jurisdic tion to try offence."

20. In the case before us there was not only the liability to give account at Narayanganj but also the duty to deliver goods at the same place. That being the position, there is no room for doubt that the Narayanganj Court had jurisdiction to try the offence in this case. If there was only a liability to account at Narayanganj and no duty to deliver any goods, then perhaps my decision would have been in agreement with Mr. Rouf's prayer for quashing the proceedings pending in the Narayanganj Court.

21. In view of the state of law as discussed above, I hold that the correct position is that as stated by Mulla, J., Fateh Singh's case namely, "where it is alleged that the accused has failed to account for the property then the second part of section 405,

1. P. C., will apply and jurisdiction exists at the place where the property should have been delivered by the accused. Where, however, there is only a liability to account at a certain place and no duty to deliver any property at that place, the Criminal Court at the place where the accounting is to be done has no jurisdiction to try the offence".

22. And in the present case the Narayanganj Magistracy has rightly assumed jurisdiction.

23. The result, therefore, is that this rule is discharged. A. H. Rule discharged.