ORDER
(1) The respondent Shri Sinha Govindji is the proprietor of Messrs Sinha Govindji carrying on business at Bellary in Mysore State. The said firm had an office in Bombay. On 18th January, 1960, the respondent was granted a license for import of 31/2 tons of Cellulose Nitrate sheets, rods, etc. Of the value of about Rs.75,000/- the license was 'actual User's license', so that the goods could be consumed by the respondent himself, and he was nto entitled to sell the same. He imported 44 cases of the material from London and the delivery thereof was taken in July, 1961. In December, 1961, the respondent addressed a letter to one Shri Bijayasankar Bhargava of Sankar Brtohers, Delhi offering to sell the material at Rs. 7 per pound. This letter was sent by the respondent from Bombay to the purchaser in Delhi. Shri Bhargava accepted the offer by a letter which he sent from Delhi to the respondent at Bombay. According to the complaint, Shri Bhargava instructed the respondent to send the goods offered to Delhi. On 6th January, 1962 the respondent sent one case containing the goods purchased under the said license, through Bombay Goods Carrier Private Limited and the delivery was taken by Shri Bhargava in Delhi from the Transport Company on 12th January, 1962. On 11th February 1963, a complaint was presented by the Deputy Chief Controller of Imports and exports, Madras, against the respondent in the Court of the additional Chief presidency Magistrate, Iii Court, Esplanade, Bombay. The said Magistrate at Bombay held that circumstances of the case showed that he was nto competent to take cognizance of the offence. He accordingly returned the complaint under section 201 of the code of Criminal Procedure for presentation to the proper Court. This order was passed on 12th March 1963
(2) It appears that the Additional Chief Presidency Magistrate, Bombay wrtoe the order returning the complaint on the complaint itself; and in May, 1963 the complaint was then presented before Shri Amba Prakash, Special Magistrate 1st class, Delhi. The complaint as presented at Delhi, was the same as was presented in Bombay and even bears the order of the said additional Chief Presidency Magistrate. As it was a summons case, Shri Amba Parkash summoned the respondent and examined him under section 242 of the Code of Criminal Procedure. On 22nd August, 1964, the trial Court decided that no part of the alleged offence had been committed in Delhi. He said 'the import license, whose condition is alleged to have been contravened, was issued at Madras; the goods imported under the said license were to be utilised at Bellary, the sale of one case of the goods imported under the said license took place at Bombay. thereforee, this Court has nto jurisdiction to try this case'. The concluding part of the order reads: 'As I have no jurisdiction over the complaint pending before me. I hereby dismiss it: the accused is discharged'.
(3) At this stage, it is necessary to refer to some of the allegations made in the complaint, which have a bearing on the question of jurisdiction. The relevant paragraphs are 5,6 and 7 of the complaint, which read:
'5. Some time during the month of December, 1961 the accused wrtoe a letter from Bombay to Shri Vijayasankar Bhargava, proprietor of Messrs Sankar Brtohers, 152, Katra Mashu, Dariba, Delhi 6 (P.W.5) in the list of witnesses) offering to sell the aforesaid imported material at the rate of Rs. 7 per lb. The said Shri Vijayasankar Bhargava wrtoe back to the accused accepting the afore said offer and instructing the accused to send the goods offered by the accused to Delhi.
6. In pursuance of the aforesaid agreement, the accused on or about 6th January, 1962, sold one case of the aforesaid imported goods to the said Shri Vijayasankar Bhargava (P.W.5) for Rs.1,562 47, inclusive of the Central Sales -tax at 1d per cent as per Bill No.9/2018/6-1-62 by dispatching the same from Bombay to Delhi in a lorry belonging to Messrs. Bombay Goods Carrier (Private) Limited after taking delivery of the said case out of the aforesaid 42 cases stored in the godown of the said clearing agent on the authority of the Sate bank of Mysore, Bombay branch. The said goods were taken delivery of by the said Shri Vijayasankar Bhargava (P.W.5) at Delhi on 12th January, 1962 form the office of the aforesaid goods Bombay Goods carrier (private) Limited. The aforesaid goods were never utilised by the accused herein in his factory at Bellary'.
7. It is submitted that the accused herein by the aforesaid sale had contravened the said condition of the import license granted to him which is an offence punishable under section 5 of the Imports and Exports (control) Act, 1947 read with clauses 5(iv)of the Imports (control) order, 1955'
(4) Aggrieved by the order of the trial Magistrate, the State preferred a revision before the additional Sessions judge Delhi, who rejected the same by his order dated 23rd November 1965, the learned additional Sessions Judge based his decision on two grounds:
(1) The order of the trail Magistrate amounted in law to an order of acquittal in as much as no order of discharge was envisaged by the provisions of the code of Criminal Procedure relating to the trail of the summons cases: and
(2) ' The goods having been admittedly dispatched from Bombay the contravention of the terms of the license shall be said to have been made at the place or at Madras where the license was granted or at Bellary the place of business of the accused, there he was expected to utilize it for a specified purpose'.
For coming to this conclusion the learned additional Sessions judge relied on a decision of the Lahore High Court, reported as A.J. Heywood v. Emperor Air 1942 Lah 134
(5) On behalf of the respondent a preliminary objection has been taken that no revision petition is competent in this Court as the order of the trial Magistrate mounts to acquittal of the respondent. The suggestion being that the State could only file an appeal against acquittal after obtaining special leave to appeal under section 417(3) of the Code of Criminal Procedure. In elaboration of the preliminary objection, the learned counsel for the respondent has drawn my attention to chapter Xx of the code. His contention is that Chapter Xx which exhaustively deals with the trail of summons cases by Magistrates, envisages only an order of acquittal, and, consequently, even if the order be labeled as one of discharge by the Magistrate, its substance has to be looked at and, when so looked at it must be held to amount to an order of acquittal
The learned counsel has drawn my pointed attention to sections 245, 247 and 248 of the Code, which visualize an order of acquittal to be passed in diverse eventualities. Referring to section 245 the learned counsel for the respondent says that having come to the conclusion that he had no jurisdiction to take cognizance of the case the matter fell within section 245 and consequently, the Magistrate's verdict must be 'the accused nto guilty' and he must, thereforee record an order of acquittal. Some aid has been sought by the learned counsel from section 494 of the Code and the argument is that wherever an accused person is to be discharged without trial it has been stated so specifically as in section 494(a), Criminal Procedure Code.
There appears to be no merit in the preliminary objection. If one were to confine oneself, as he has been suggested, to chapter Xx then one finds no provision in the said Chapter under which a magistrate can pass an order of acquittal in the circumstances obtain in this case. The case was at its initial stage and no evidence had been recorded. Section 245 Criminal Procedure Code, talks of an order of acquittal after the magistrate has taken evidence referred to in section 244 and such further evidence, if any, as he may, of his own mtoion, cause to be produced, and if he thinks fit examining the accused. Section 245 thereforee, would come into play only if the Magistrate has nto convicted the accused under section 243 or if the accused has nto made admission as envisaged by the said section and the Magistrate has proceeded to hear the complainant and take evidence as may be produced in support of the prosecution. If, on the toher hand, the Magistrate on the representation of the complaint declines to take evidence under section 244 on the ground that he has no jurisdiction, the order will have to be deceased hors the provisions of section 245. Chapter Xx commences with section 241 which says-
' The following procedure shall be observed by Magistrate in the trial of summons cases'.
If the Magistrate decides that he has no jurisdiction he can hardly be said to have proceeded with the trail of the case. There may be cases where the Magistrate entertains no doubt as to his jurisdiction and no such objection is raised by the accused. The magistrate may then proceed with the trial and record evidence. At later stage an objection may raised in the course of the proceedings that the Magistrate has no jurisdiction. If he agrees with the objection he will have to say that the trail and recording of evidence is before corannon judice. Such an order cannto then be termed as an order of acquittal within the meaning of Section 245, Criminal Procedure Code. Proceedings before the Magistrate must in that event be proceedings without jurisdiction that event be proceedings without jurisdiction. Even if ultimately it is held by a higher Court that the magistrate's view as to the jurisdiction was nor correct, still the order of the Magistrate would be an order based on his view, through erroneous, as to jurisdiction and consequently nto an order passed after taking the evidence referred to in section 244 etc. As provided in section 245 Criminal Procedure Code
The intention of the Legislature becomes manifest by reference to section 403, Criminal Procedure Code as well the provisions whereof are attracted only where a person has once been tried by a Court of competent jurisdiction. The learned counsel for the respondent referred me to section 201, Criminal Procedure code, and suggested that if a magistrate finds that he is nto competent to take cognizance of the case he can, in that event, act only under that provision, which can be invoked before issuing process to the accused, but since the accused has been summoned in this case, order could nto be made even under section 201 That may be one of the various types of orders contemplated but does nto lead me to the conclusion that in cases where the Magistrate had summoned the accused he must record an order of acquittal under Section 245, Criminal Procedure Code, even though no evidence has been recorded and even though he decides that he has no jurisdiction to take cognizance. In the view preliminary objection must be repelled.
(6) Coming now to the merits of the case, I am of the opinion that the Courts below were in error. The learned Additional Sessions judge appears to have assumed that because the goods were dispatched from Bombay, the contravention of the terms of the license took place either at Bombay or at Madras, where the license was granted or at Bellary the place of business of the accused where he was expected to utilise it for the specified purpose. There are various difficulties in upholding this view-(i) Even under the Sale of Goods Act the dispatch of goods may nto be decisive of the passing of property or of the sites of sale: and (ii) the offence in this case consisted of selling the goods and consequently the jurisdiction must lie with the Magistrate of the place where the goods were sold, or in toher words, where the offence was committed. In these circumstances, I am doubtful whether Madras Court or Bellary Court would at all have any jurisdiction in the matter. There may be difficulty involved in determining as to which of the two Courts, namely, Bombay or Delhi, will have jurisdiction to try the case. But then, as I have said earlier, it cannto be inferred from the fact of dispatch of goods that the sale took place in Bombay. This is the first infirmity from which the decision of the Additional Sessions...
(7) Secondly the complaint does nto specifically say where the offence was committed but it does say that the respondent wrtoe a letter to Shri Bhargava in Delhi offering to sell the aforesaid material and Shri Bhargava wrtoe back from Delhi accepting, the offer. It further says that delivery of the goods was taken in Delhi.. The complaint does nto thereforee, specifically refer to the offence having been committed in Delhi. The fact, however, that charge sheet was filed in Delhi suggests that the prosecution considered Delhi as the place where the offence committed. That may nto be conclusive but in these circumstances the Magistrate ought to have decided the place of sale after taking evidence on an objection by the respondent. I say so because the facts stated in the complaint may be consistent with the sale having taken place in Delhi.
(8) Thirdly the expression 'sale of goods' is a composite expression consisting of various ingredients of elements. There are the elements of a bargain or contract of sale, the payment of promise of payment of rice, the delivery of goods and the actual passing of title. Each one of these ingredients is essential to a transaction of sale though the sale is nto concluded unless the purchaser becomes the owner of the property. The world 'sale' in its legal sense imports passing of property in the goods but in the popular sense it signifies the transaction itself which results in the passing of the property. Under section 4 of the Indian Contract Act the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; and as against the acceptor when it comes to the knowledge of the prosper. As against the proposer, thereforee, the communication of acceptance was complete as soon as the acceptor posted the letter. A part of the agreement of sale, thereforee, took place in Delhi. Under section 4 of the Sale of goods act an agreement to sell becomes a sale when the time elapses or the conditions are fulfillled subject to which the property in the goods is to be transferred. When an agreement to sell becomes sale the offence is complete. Under section 177, Criminal Procedure Code, and offence is triable 'by a Court within the local limits of whose jurisdiction it was committed'. If some elements of sale take place within the jurisdiction of Delhi courts, the offence would also be at least, partly in Delhi & triable by Delhi Courts, consequently, if agreement to sell is completed in Delhi qua the prosper, it cannto be suggested that no part of the offence took place in Delhi. Delhi Courts will thereforee have jurisdiction under section 177 read with section 182 Criminal Procedure code.
(9) Fourthly, even if section 177, Criminal Procedure code, be nto applicable section 182 Criminal Procedure code would, in the circumstances of this case, come into play. The uncertainly about the place of offence is writ large on the record. The Bombay Court took the view that the offence did nto take place there, while the Delhi Courts have decided that it was committed in Bombay. I am extremely doubtful whether the offence of selling the goods be tried in Madras or Bellary at all. Even if the site of the sale and consequently the place of offence were to depend on the passing of the property under the provisions of Sale of goods Act, that will primarily depend on the intention of the parties buying and selling. Sections 20 to 24 of the Sale of Goods act are merely rules for ascertaining the intention of the parties as the time at which the property in the goods is to pass to the buyer. In these circumstances it would- be impossible for the prosecution to ascertain the intention of two different parties engaged in the transaction. It would nto thereforee be possible to expect the prosecution to categorically state where the goods passed, Such intention may leave an element of uncertainty as to the place of offence. Apart from that, agreement to sell being an essential part of the sale and that having taken place in Delhi, it can safely be said that the offence of sale was partly committed in one local area and partly. In antoher, attracting section 182, Criminal Procedure code. In these circumstances, it must beheld that Delhi Courts have jurisdiction to try the case.
(10) In the result, the petition is allowed and the matter sent back to the trail magistrate to proceed with the case on merits. The parties will appear before the Magistrate on 9th January 1967.
(11) Petition allowed.