IN RE: K. GOVINDASWAMI CHETTIAR Vs. STATE

JUDGEMENT

(1.) THE Second Class Magistrate, Tiruvannamalai, who is trying this case framed a charge against the accused who is the petitioner herein under Section 408 of the Indian Penal Code on the 27th July, 1946. In that charge it is stated that the accused between the 28th September, 1945, and the 10th October, 1945, at Tiruvannamalai being employed as a clerk or agent of the K.T.R. Company, Tiruvarur and in such capacity entrusted with domain (dominion) over a sum of Rs. 788 -8 -7 committed criminal breach of trust with respect to the said property. If the charge had merely been that the alleged breach of trust was committed in the capacity of a clerk of the company there could have been no objection to the charge framed under Section 408 of the Indian Penal Code and to such a charge -being tried by a Second Class Magistrate. But the charge is on the alternative footing that the breach of trust was committed either as "a clerk or as an agent of the company ". An offence of criminal breach of trust committed by an agent is punishable under Section 409 of the Indian Penal Code and is only triable by a Court of Session, Presidency Magistrate or a Magistrate of the First Class. A Second Class Magistrate has no jurisdiction to try such an offence. The insertion in the charge of the alternative expression " or the agent of the company" has the effect of making the alleged offence one under Section 409 of the Indian Penal Code and such an offence could not have been tried by the Second Class Magistrate, Tiruvannamalai, who has actually tried the case. This is an illegality affecting the jurisdiction of the trying Magistrate and vitiating all the proceedings. The petition is allowed and the proceedings in C.C. No. 18 of 1946 on the file of the Second Class Magistrate of Tiruvannamalai are quashed.