C KRISHNAMACHARI Vs. SHAW WALLACE AND CO

JUDGEMENT

(1.) The question on this reference is whether the third Presidency Magistrate has jurisdiction to try the accused for an offence punishable under Section 406 or 409 of the Indian Penal Code, or whether he should return the com-plaint for presentation to a competent Court at Nandyal, Karnool District.

(2.) The circumstances are set out in the complaint only generally. But the material allegations appear, from the evidence already taken and the statements of complainant s Counsel, to be that the accused was appointed agent for the sale of complainant s oil at Nandyal, that his periodical reports showed a certain quantity of oil sold and a certain sum of money received and (after deduction of commission, etc.) to be accounted for and that, when called on to account, the accused failed to do so, leaving Nandyal after locking up his place of business and secreting his books, the inference being that he had made away with the funds in his charge. No suggestion is made that any oil entrusted to him has been converted to his use or dealt with otherwise than in accordance with complainant s instructions; that is, by sale to customers. The misappropriation relied on is accordingly not of the oil, but only of the money received for it; and we can, therefore, dismiss from consideration what seems to have been thought material before the Magistrate, the allegations as to the origin of the oil whether it came from Madras or Cocoanada. The fact that the accused was appointed agent by an order sent from Madras is also without significance in a criminal case. The only ground, which we have to consider as justifying the jurisdiction of the Madras Court, is that loss ensued there to the complaintant firm as a consequence of the accused s conduct at Nandyal and that the case is, therefore, covered by Section 179, Criminal Procedure Code, not by Section 181 only, in which offences under Sections 406 and 409 are specially dealt with. In accordance with the ordinary canons of construction the special provision should ordinarily receive effect unqualified by the general. Clear reason must, therefore, be shown in the wording of Section 179 or otherwise before complainants contention can be accepted.

(3.) That contention has been endorsed and negatived in different decisions : but, though in some of them attempts have been made to state the principle applicable in more or less general terms, the weight of such statements is impaired by the fact that either the allegations before the Court and the exact relations between the parties are not stated fully in the reports or the conclusion may have been influenced by uncertainty regarding the place in which the money or property concerned was received or converted by the accused. Rajani Binod v. All India Banking Co. 22 Ind. Cas. 192 : 17 C.W.N. 1207 : 15 Cr. L.J. 48 is an instance of the former class of cases, and George Langridge v. Grace Alkins 17 Ind. Cas. 792 : 35 A. 29 : 10 A.L.J. 431 : 13 cr. L.J. 856 of the latter.