KASHI RAM MEHTA Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision from an order of the District Magistrate of Dehra Dun, declining to transfer a case pending in the; Court of the Sub-Divisional Magistrate of; Chakrata, forthwith, but ordering him to; proceed to take the evidence for the prosecution and hear the defence and then send the record to him for final orders as to whether the case would be transferred. The revision came up for disposal before learned Judge of this Court, who rightly remarked that, it is not possible to appreciate the meaning of this order. Obviously if there was a case made out for transfer, the order should have been made forthwith or else the application should have been rejected; the matter should not have been ordered to be kept pending till the entire evidence had been recorded. This is particularly so when the main ground for the transfer was that the Magistrate had no jurisdiction to try the case at all.

(2.) In this reference we are not concerned with the convenience or propriety of transferring the case. The sole question which arises for consideration is whether the Sub-Divisional Magistrate of Chakrata has jurisdiction to entertain this complaint. Mohan Lal filed a complaint against the applicant, Kashi Ram Mehta, who is the Manager of the Indian National Bank of Industries, Ltd., at Dehra Dun and also against Jai Singh, the proprietor of the General Trading Company, Dehra Dun, under Section 403, Indian Penal Code. The prosecution case was that one Shamsud- din had drawn a cheque payable to bearer in favour of one Abdul Aziz, who signed the cheque without endorsing it in favour of any particular person and gave it to Mohan Lal who then sent this cheque to the General Matches Agency Dehra Dun, in payment of certain outstanding liabilities, but without signing the cheque at all. The cheque, according to the complainant was delivered by mistake to Jai Singh, the proprietor of the General Trading Company, instead of being delivered to the General Matches Agency. Jai Singh handed it over to Kashi Ram Mehta and got the cheque cashed through him, with the result that ultimate loss has either fallen or is likely to fall on Mohan Lal, who is a resident of Chakrata. The objection of the want of jurisdiction of the Magistrate was taken at a somewhat belated stage, the objection being that the offence, if any, was committed at Dehra Dun and the complaint could not be entertained by the Magistrate at Chakrata. It may be mentioned that Chakrata is a Sub-Division in the Dehra Dun District.

(3.) Under Section 403, Indian Penal Code, whoever dishonestly misappropriates or converts to his own use any moveable property, is liable to punishment, and a dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Misappropriation or conversion has not been specifically defined, but the word "dishonestly" has been defined in Section 24, Indian Penal Code. A man is said to do a thing dishonestly when he does it with the intention of causing wrongful gain to one person or wrongful loss to another person. It follows that a mere misappropriation or conversion to one's use is not sufficient for the completion of an offence, but that the element of dishonesty is essential, and dishonesty comes into existence as soon as there is an intention of causing wrongful gain or wrongful loss. Obviously it is not necessary that the gain or loss should accrue before the completion of the offence of dishonest misappropriation. All that seems to be necessary is that there should be misappropriation or conversion with the intention of causing wrongful gain or wrongful loss. These sections therefore indicate that it is not necessary that loss or gain should have actually accrued before the offence is completed. All that is required is that there should be an intention of causing such gain or loss which would amount to a dishonesty.