Gowkaran Lal vs Sarju Saw

Jwala Prasad, J.—This is an application against the order of the Magistrate of the 18th of November 1918, dismissing the com-plaint of the petitioner u/s 203 of the Code of Criminal Procedure. The order, on motion to the Sessions Judge, was upheld by him on the 23rd of December 1919. The complaint was u/s 403 of the Indian Penal Code in res-peat of a sum of Rs. 2,000 said to have been misappropriated by the accused, who was an agent and a servant of the petitioner''s master.

The ground stated by the Magistrate for dismissing the complaint was that the case was one of a civil nature for adjustment of accounts, and not of a criminal nature The learned Sessions Judge amplified this ground in his order of the 23rd December 1919, stating "that in the present case the accused was dealing with the money of his master as an agent and had got the money honestly."

The learned Sessions Judge has also referred to his order of the same date passed in respect of another complaint filed by the petitioner against the accused u/s 406 of the Indian Penal Code, IS appears that on the same date, namely, the 18th of November, the petitioner lodged two complaints against the accused, one in respect of defalcation said to have been committed by him in regard to Rs. 945 alleged to have been given to the accused by the master of the complainant to open business at Badaya with the firm of one Pahari Singh in March 1917. In that case also it was held both by the Magistrate and the Sessions Judge that the accused dealt with certain firms on behalf of the petitioner''s master and was liable for accounts and that no criminal charge would lie. The petitioner moved this Court against the order of the Magistrate and the Sessions Judge in both the aforesaid cases. His application to this Court in the case u/s 406 was rejected by a Division Bench of this Court presided over by Mullick and Sultan Ahmed, JJ., on the 3rd of February 1920. The application in regard to the present case, however, was admitted by the said learned Judges by their order of the 23rd of February 1920 and a Rule was issued upon the District Magistrate and upon Sarjoo Saw to shew cause why further enquiry should not be ordered. The District Magistrate has shown no cause. The accused now appears through Mr. Janak Kishore, a Vakil of this Court.

The question for consideration is whether the complaint in this case raises a question of account between the petitioner and his agent, or whether it is in respect of a specific sum said to have been entrusted to the accused by a firm with which the complainant''s master had dealings in order to be handed over to the petitioner''s master. Paragraph 4 of the petition sets out the duties of the accused which he had to perform in connection with the firm of Mahabir Lal, master of the complainant. The accused, as an agent of Mahabir Lal, was to go out to the said firms of Ranigunj, Barb, etc., to purchase grains bio,, with the money kept in those firms and to get them sold at a profitable rate through those firms. He had also to bring money and accounts from those firms to the complainant''s master''s firm at Mansurganj, Patna City. The complaint against the accused in respect of Rs. 945 said to have been made ever to him in 1917 related to his failure to deposit the said sum with the firm of Pahari Singh of Badaya or to carry on business with the firm on behalf of the complainant. That was possibly a matter of adjustment of accounts between the parties. In the present case the charge against the accused laid in the complaint is that on the 6th of Aswin Sudi Sambat 1976, corresponding to the 30th of September 1919, the firm of Sant Lal-Makund Lal made over to the accused Rs. 2,000 out of Rs. 3,762 belonging to the complainant, which was in deposit with the firm of Sant Lal Makund Lal. The accused was asked to make over the said sum to the complainant''s master at Mansurganj, Patna City. It has already been said that, according to the case of the complainant, it was one of the duties of the accused to carry money and accounts from the several firms mentioned in paragraph 4 of the complainant''s petition to the firm of the petitioner''s master. The complainant''s case is stated in the following terms :

The accused, after receiving the money to be handed over to the complainant, deposited the same in the firm of Chhatu Das Kanhai Lal at Barh in the name of the complainant''s master''s firm on the 20th Aswin Sudi corresponding to the 6th October 1919, two days after he again withdrew that money from the firm of Chhatu Das-Kanhai Lal at Barb, telling them that he was carrying the money to be made over to the firm of Mahabir Lall. But on the 25th of October 1919 when he appeared before the complainant''s master at Mansurganj, Patna City, he made over the Chitha of the Barh account and on being asked whether he had brought any money from the Ranigunj firm, he denied having done so. On Kartik Badi and Chottay, complainant''s master, came to know from Mahabir Dandidar that the accused had actually taken out from the firm at Ranigunj Rs. 2,000 to be brought to the complainant''s master. The accused in the meantime had gone away on the plea that his daughter was to be married. The complainant deputed a man to find him out and to enquire about the aforesaid Rs. 2,000 said to have been taken by him; but he was not found at his house.

The above allegations do not necessarily involve an adjustment of accounts, and the complaint could not be thrown out on that ground alone. It was open to the Magistrate in case of doubt to hold an enquiry u/s 202 of the Code of Criminal Procedure before summoning the accused, in order to and out whether a prima facie case was made out or whether the accused should have been summoned or not. I am, however, not satisfied as to the jurisdiction of the Magistrate at Patna City to entertain the complaint in question. The accused is said to have received the money from the firm of Sant Lal at Ranigunj. He deposited that amount in the name of the complainant''s master in the firm of Chattu Das Kanhai Lal at Barh. He again took out that money from the firm of Chhatu Das Kanhai Lal at Barh. Since then it is not known where the accused took the money to. u/s 403, Indian Penal Code, the offence is complete the moment the accused receives or retains the money with a dishonest motive of appropriating it or converting it to his own use. The offence was, therefore, complete at Barb, where he received the money and has not since then accounted for it. It is true that the money was to be made over to the petitioner''s master, Mahabir Lal, at Mansurgunj, Patna City, within the jurisdiction of the Patna City Magistrate, but the failure to hand over the money in respect of which the offence of misappropriation was already committed is not a necessary ingredient to constitute an offence of criminal misappropriation, and is, therefore, not a consequence which has ensued by reason of anything done by the accused. Section 179 of the Code of Criminal Procedure, therefore, has no application to the present case. It is also clear from the express provisions made u/s 181, Clause (2), of the Code of Criminal Procedure that the Legislature never intended that the words consequence which has ensued" occurring in Section 179 should apply to criminal misappropriation or criminal breach of trust. If that were so, there was no necessity of an express provision in Clause (2) of Section 181. That clause provider that the offense of criminal misappropriation or of criminal breach of trust may be enquired 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 person by whom the offence was committed. The complaint in this case does not allege that any part of the sum of Rs. 2,000 said to have been misappropriated by the accused was received or retained by him within the jurisdiction of the Patna City Court, The view is supported by the decisions of the Calcutta and the Madras High Courts, viz., the cases of Simhachalam v. Rati Kanta Laha 41 Ind. Cas. 138 : 21 C.W.N. 573 : 25 C.L.J. 451 : 18 Cr L.J. 762 : 44 C. 912 and In Re: Rambilas 26 Ind. Cas. 136 : 38 M. 639 : 29 M.L.J. 175 : 16 M.L.T. 505 : (1914) M.W.N. 894 : 15 Cr.L.J. 688. There has been difference of opinion in the Allahabad High Court, vide Queen-Empress v. O''Brien 19 A. 111 : A.W.N. (1893) 191 : 9 Ind. Dec. (N.S.) 72, George Langridge v. Grace Atkins 17 Ind. Cas. 792 : 35 A. 29 : 10 A.L.J 431 : 13 Cr.L.J. 856, Ganeshi Lal v. Nand Kishore 15 Ind. Cas. 319 : 34 A. 487 : 10 A.L.J. 45 : 13 Cr.L.J. 479. The cases in Allahabad were all decided by Judges sitting singly and have been dealt with in the aforesaid Madras and Calcutta Courts oases. For the reasons given in the decisions of the latter Courts, with which I entirely agree, I am of opinion that the present application was beyond the competency of the Magistrate of Patna City to entertain. I would, therefore, dismiss this application, and leave the complainant to take any course that he may be advised.