NIWASILAL MODI Vs. ROUTHMULL

JUDGEMENT

(1.) This rule is directed against an order made by the 4 Presidency Magistrate of Calcutta on 19 February 1931 by which he held that he had jurisdiction to proceed with the complaint made before him in this case. One Routhmull is a partner of the firm of Doulatram Routhmull carrying on business in jute and country produce and having their head office at 178, Harrison Road, Calcutta. The firm has got branches at many places and four of these branches are at Matihari, Bettiah, Sitarnari and Chakia, all in Behar. The petitioners are the men who are in charge of these Behar branches. Routhmull complained to the Chief Presidency Magistrate, Calcutta, charging the petitioners with the offences of criminal breach of trust and falsification of accounts. The allegations on which these charges were made in the petition of complaint were; (1) that the petitioners drew hundis on the Calcutta firm cashed them locally and recovered the moneys but did not credit them in the books and misappropriated them; (2) that they sold stock of the firm, received the sale proceeds, but did not credit the amounts in the books; (3) that they received moneys from other persons in the name of the firm but did not enter them in the books and (4) that they withdrew various sums by making false and fictitious debit entries against imaginary persons. In the petition of complaint it was said that on receipt of some information, the suspicion of the head office was roused and when the petitioners were summoned to Calcutta, they could not explain the accounts but made some kind of admissions. On this complaint the petitioners were summoned by the Magistrate. A question was raised before him that the Magistrate had no jurisdiction to try the case inasmuch as according to the allegations made by the complainant in his petition of complaint the right venue for the trial of the offences was not Calcutta, but in Behar. This point the Magistrate decided against the petitioners and thereupon the petitioners came up to this Court and obtained the present rule.

(2.) The only point for consideration in the present rule therefore is whether Calcutta is the right venue for the trial of the offences with which the petitioners were charged and whether the Magistrate therefore had jurisdiction to try the case. From what I have stated before as to the allegations made by the complainant in his petition of complaint, it would appear that all the acts alleged by the complainant to have been done by the petitioners were done in Behar. It was in Behar that the moneys were alleged to have been received and it was in Behar again that the alleged omissions to credit them in the firm's books took place. All that took place in Calcutta was that the petitioners could not explain their accounts on account of which the suspicion of the complainant that there had been defalcation was confirmed. It is clear therefore that the moneys were not received in Calcutta and there was nothing to indicate that it was retained by the accused in Calcutta. Mr. Sen for the complainant opposite party relied on the concluding, clause in Section 181, Sub-section (2), Criminal P.C., and contended that as there was nonaccounting in Calcutta, it was to be inferred that the offence had been committed in Calcutta where the nonaccounting took place and in support of his contention he relied on an observation made by the learned Judges in an unreported decision (to which my learned brother was a party) in Paul De Flondor V/s. Emperor . I do not see how this observation could be of any help to the complainant in the present case, The observation alluded to which was based on the decision in the case of R. V/s. Davison [1855] 7 Cox. C.C. 158, runs thus: If there is no evidence to show where the misappropriation was committed other than the fact of nonaccounting, then the venue may be laid in the place where the accused failed to account.

(3.) It may be said that in the present case the nonaccounting took place in Calcutta. But the nonaccounting in Calcutta was not the only evidence to establish the alleged misappropriation. As would appear from the allegations made by the complainant himself in his petition of complaint, the petitioners had cashed the hundis and realized moneys in Behar and did not credit them in the books of the firm kept in Behar and thereby misappropriated the moneys realized.