ALTAF HUSSAIN Versus THE STATE

Although this case was fixed only for confirmation of the stay already granted by this Court, yet I have considered it proper to dispose of the main case itself in order to obviate unnecessary and avoidable delay in the proceedings before the trial Court.

2. The undisputed background of this petition seems to be that the petitioner was the agent of the complainant firm, Messrs Carvan Engineering Works, Okara, for the sale and distribution of agricultural implements manufactured by it. On 21‑6‑1965, the firm supplied, through the petitioner, agricultural implements to the Extra Assistant Director Agriculture, Sargodha, valued at Rs.11,000. Likewise, on 26‑6‑1965, another consignment, valued at Rs. 5,520, was supplied by it to the Agricultural Assistant, Khushab. The petitioner realised these amounts A perusal of the S. D. M.'s order shows that he also obtained payment of yet another sum of Rs. 8,775 on behalf of the firm from the E. A. D. A., Sargodha. The three amounts were allegedly misappropriated by him instead of remitting them to the complainant firm at Okara. Consequently, a case under section 406/409; P. P. C. was registered against him at the instance of the latter on 31‑5‑1966.

3. Having unsuccessfully challenged the jurisdiction of the S. D. M., Okara before whom the case was pending, the petitioner filed a revision before the learned Additional Sessions Judge, Sahiwal, which was also dismissed, vide the impugned order, dated 22‑4‑1969.

4. It is contended on behalf of the petitioner that the Courts below have not properly appreciated the correct legal position in holding that the Court at Okara had the requisite jurisdiction to try the case.

5. Having carefully perused the elaborate orders passed by the Courts below and a fairly large number of authorities relied upon by them, I am in no manner of doubt that the Court at Okara does not have the jurisdiction to try this case and, as such, the impugned order cannot be sustained.

6. The forum for the trial of cases of criminal misappropria tion has been clearly mentioned in subsection (2) of section 181, Cr. P. C., which reads as follows :‑

Section 18 I (2) :‑

"The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person, or the offence was committed."

Admittedly, the different amounts allegedly misappropriated by the petitioner were received by him at Sargodha and Khushab and retained by him at Lahore, which was the place of his residence. The offence of criminal misappropriation may be deemed to have been committed by him, when after the realisa tion of these amounts he decided not to remit them to the A complainant firm at Okara. This mala fide intention could have come into existence either at Sargodha or Khushab or after he had returned to Lahore. Thus in view of the clear statutory provision, the Court at Okara would not have the requisite jurisdiction to try the case. Justification has, however, been sought to be spelt out by the Courts below from the provision contained in section 179, Cr. P. C., which reads as follows :‑

"S. 179.‑When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued."

Since, after realisation, the amounts had to be adjusted in the' account of the complainant firm with its headquarters at Okara, the Courts below appear to have taken the view that the proposed rendering of accounts at Okara, as an ensuing consequence of the commission of criminal misappropriation, would be good enough to confer jurisdiction on the Court at Okara in terms of the provision contained in section 179, Cr. P. C. The position is obviously misconceived. The plain reading of the section makes it abundantly clear that) the commission of an offence should be the result of the cumulative effect of anything which has been done and of any consequence which has ensued therefrom. The moment the petitioner had decided, if at all, to misappropriate the sums after their realisation and not to remit them to Okara, the offence under section 406, P. P. C. was complete with all its essential ingredients and, as such no further consequential act was required to complete it. It is in this that the fallacy in the arguments of the Courts below seems to lie. The position is not however devoid of authorities. In Kashi Ram Mehla v. Emperor (A I R 1934 All. 499), a Full Bench authority, it was held as follows :‑

"Section 179 contemplates cases where the act done and the consequence ensuing therefrom together constitute the offence. If the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it which was not essential for the completion of the offence, then section 179 would not be applicable."

This view was latter adopted by a Division Bench of the Calcutta High Court in Daityari Tripatty v. Subodh Chandra Chowdhury (A I R 1942 Cal. 575). The same view was adopted in Abdullah v. Raja Muhammad Hashim and another (P L D 1962 Kar. 793) and I am in respectful agreement. I am thus in no manner of doubt that section 179, Cr. P. C. would be wholly inapplicable to the facts of the instant case in which the question of jurisdiction could alone be determined on the basis of the provisions contained in section 181 (2), Cr. P. C. But assuming that the matter was not still free from doubt, it may be stated on the basis of The State of Madhya Pradesh v. K. P. Ghiara (P L D 1957 S C (Ind.) 176) that the only course open for the determination of forum would be to apply section 182. It was observed by their Lorships as follows :‑

"Where, in a case for prosecution under section 408 of the Penal Code, there is doubt as to when the idea of embezzlement took root, the only course for the prosecution is to apply the provisions of section 182 of the Cr. P. C. and file a charge‑sheet basing the same on uncertainty."

6. I have no hesitation in saying that the authorities relied upon by the Courts below proceed on distinguishable facts and have no bearing on the circumstances of the instant case.

7. The upshot of the discussion, therefore, is that the petition succeeds and is hereby accepted. It inevitably follows therefrom that the Court at Okara does not have the jurisdiction to proceed with this case.

A. E./K. B. A. Petition accepted.