DAITYARI TRIPATTY Vs. SUBODH CHANDRA CHOWDHURY

JUDGEMENT

(1.) On 27 April 1942, this Court granted a rule nisi against the Chief Presidency Magistrate, Calcutta, and a Mr. S.C. Choudhury to quash certain proceedings pending before the former in which, on the complaint of the latter, a charge had been framed against the petitioner, Omitting formal facts, this charge reads as follows: That you being a servant of the Chandbali Steamer Service Co., Ltd. of 29, Strand Road, Calcutta, and in that capacity being entrusted with property to wit the monies received and realised by you on behalf of the said company and being bound under the contract of service to deposit the said monies in the Head Office at 29, Strand Road, Calcutta, dishonestly disposed of between 8 October 1941 and 23 November 1941, the total gross sum of Rs. 7800-4-0 the property of the said Chandbali Steamer Service Co. Ltd., in contravention of the terms of contract of service and thereby committed an offence punishable under Section 408, Indian Penal Code and within my cognizance.

(2.) The petitioner challenges the jurisdiction of the learned Magistrate, who frankly tells us that he only decided he had jurisdiction after some doubt : nor, in view of the state of the authorities, is this surprising. The question was ably argued before us by counsel for and in opposition to the rule. To determine it at this stage of the proceedings we must look and look only at the charge as framed. We must assume every fact therein alleged to be proved--it is perhaps unnecessary to state that we do so for present purposes only, and that nothing we now say must be taken in any way to prejudice the defence of the petitioner on the merits whenever or wherever he is ultimately tried. Lastly, we must draw every inference consistent with the facts so assumed which tells in the petitioner's favour. So acting, we have to deal with an offence under Section 408, Indian Penal Code, which incorporates Section 405. The latter section provides as follows: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust .

(3.) On the foregoing assumptions it appears that neither the entrustment nor any positive act of conversion of the monies entrusted took place in Calcutta, and such, we are told, the fact is. Indeed, even after a verbal amendment of the charge it (could only be argued that the offence took place in Calcutta if either a breach of contract by pure nonfeasance or a failure to account takes place, necessarily and as a matter of law at the contractual place of performance or at the place where the accounting party ought to account. Apart from any relevant statute or authority neither of these hypotheses appears to us tenable. The actual crime created by Section 405 consists of any one of four acts? "misappropriation" "conversion", "user" or "disposal" of property. Certainly, the act of one individual may have repercussions anywhere on the earth or in the surrounding atmosphere, but, since the number of positions in space which a single body can simultaneously occupy is strictly limited, to one, it seems to us on principle that a man can personally do an act at that place only where at the material time he physically is. We are fortified in this conclusion by the decision of Mackney J. in Vasanji Khimjee V/s. Kanji Tokersey ( 38) 25 A.I.R. 1938 Rang. 94 and entirely agree with his reasoning.