BRAHMANANDA GOYAL Vs. N C CHAKRABARTI

JUDGEMENT

(1.) THIS Rule is at the instance of the two accused-petitioners, Brahmanand Goyal and anandpal Goyal, directed against an order dated the 19th January, 1971 massed by shri H. P. Kar, Additional Chief Presidency Magistrate, Calcutta Issuing process against seven accused-persons including the two accused-petitioners, under section 120b read with section 407 of the Indian Penal Code and for quashing the proceedings pending before him, being case No. C/39 of 1971,

(2.) THE facts leading on to the Rule can be put in a short compass. A complaint was filed before the learned additional Chief Presidency Magistrate, Calcutta on the 19th January, 1971 by the complainant, opposite party No. 1, Shri N. C. Chakravorty of Messers. National Tobacco Co. of India Ltd. , against the seven accused persons, including the two accused petitioners. The learned Additional Chief Presidency Magistrate, Calcutta examined the complainant and issued process against all the accused-persons under section 120b read with section 407 of the Indian Penal Code on the same date along with a search-warrant for the seizure of books of account, stock register and other relevant papers. The accused petitioners thereafter appeared in court and were released on bail. The order using process and the resultant proceedings have been impugned, as not maintainable in law, and the present Rule was issued. Mr. S. D. Banerjee, Senior Advocate (with Messers Pritish Chandra Roy and Sakti Pada Chatterjee, Advocates)appearing in support of the Rule raised four contentions viz. that the trial is vitiated by the absence of jurisdiction; that there has been a non-conformance to the mandatory provisions of section 200 Criminal Procedure Code; that there has been a suppression of material facts in obtaining the process; and that the dispute is essentially of the civil nature because of the part realisation of value and the receipt of on demand pronote from the stockists. Mr. Prasun Chandra Ghosh, Advocate (with mr. Sumit Kumar Moitra, Advocate)appearing on behalf of the complainant opposite party No. 1 joined issue. He contended inter alia that there is no absence of jurisdiction as alleged or at all inasmuch as the cognisance taken in this case is of an offence of conspiracy to commit breach of trust; that there has been no non-conformance to section 200 Criminal Procedure Code inasmuch as the duty to examine the other prosecution witnesses only arises when they are present on the date when cognizance is taken; and that the other two grounds urged relate to merits and at this stage, when no evidence has yet been recorded it is premature to quash the proceedings on those grounds.

(3.) WE will take up for consideration the ground of jurisdiction in the first instance inasmuch as it goes to the very root of the case. The general rule of Lex Fori constitutes the very corner stone of the case upon which can only be built the super-structure of the proceedings. The test laid down for such consideration at this stage, when no evidence has been recorded, is to refer to the averments made in the petition of complaint and the evidence if any. A reference in this context may be made to the decision of the Supreme court in the case of State of Madhya pradesh v. K. P. Ghiara, reported in a. I. R. 1957 Supreme Court pp. 196, wherein Mr. Justice Govinda Menon, delivering the judgment of the Court, observed that :