H.S. Tiwari and anr. Vs. State of W.B. - Court Judgment

SooperKanoon Citationsooperkanoon.com/885480
SubjectCriminal
CourtKolkata High Court
Decided OnMar-14-2001
Case NumberC.R.R. Nos. 1084, 1085, 1086 of 1995
JudgeDebiprasad Sengupta, J.
Reported in2001CriLJ3773
ActsCompanies Act, 1956 - Sections 2(9) and 209; ;Indian Penal Code (IPC) - Sections 408, 409 467, 468 and 471; ;Code of Criminal Procedure (CrPC) , 1974 - Section 181(4)
AppellantH.S. Tiwari and anr.
RespondentState of W.B.
Appellant AdvocateSekhar Basu and ;Debasis Roy, Advs.
Respondent AdvocateSasanka Ghosh, ;Alokananda Basu, ;Amal Ch. Chatterjee, ;S.K. Mujumdar, ;Rabindra Narayan Dutta and ;Sudip Kr. Banerjee, Advs.
DispositionApplication dismissed
Cases Referred(Navinchandra N. Majithia v. State of Maharashtra. From
Excerpt:
- orderdebiprasad sengupta, j.1. this revisional application is directed against an order dated 26-12-1994 passed by the id. judicial magistrate, ixth court, alipore on c.g.r. case no. 2939 of 1988 under section 408/409 of the indian penal code thereby rejecting the petitioners' application for discharge from the case.2. on the basis of a complaint lodged by one r.s. agarwal, manager, finance and accounts, m/s. jenson and nicholson (india) ltd. having its head office at 225, a.j.c. bose road, calcutta, a case was registered with ballygunge police station being ballygunge p.s. case no. 105 dated 6-7-1990 under sections 467/468/471/408/409 of the indian penal code. in the first informtion report it was alleged that the present petitioner no. 2 was the proprietor of m/s. namrata paints, a dealer of paints and commission agent having his office at rajkot, gujarat and the petitioner no. 1 is the son of the petitioner no. 2 and also a sales representative of the company in ahmedabad section. it was alleged that said m/s. namrata paints used to collect orders and the goods were supplied from the complainant company at calcutta as per their orders. it was alleged that the accused persons entered into a criminal conspiracy and placed orders for supply of goods in the names of different parties and also took delivery of the said goods. later on it was detected by the complainant that some of the parties in whose favour the orders were supplied were not in existence at all. the goods were taken delivery of by the accused on their behalf and the sales tax payable by them was also misappropriated by the accused. when the complainant approached the parties, in whose favour orders were supplied, for payment of the sales tax on the value of the goods, it was ascertained that the orders were not placed by them and they were not responsible for payment of any sales tax. it was further alleged that the accused persons by placing orders in favour of the said parties had deposited the value of the goods, but misappropriated the sales tax dues, which were realised by them. it was also stated in the petition of complaint that all particulars regarding the sale of goods throughout the country are required to be accounted for in the head office of complainant's company at calcutta.3. on completion of investigation chargesheet was submitted by the police under section 408/409, i.p.c, on the basis of charge-sheet the learned magistrate took cognizance of the offence. after the copies of police papers and documents were supplied to the accused petitioners they filed an application before the learned magistrate praying for discharge from the case. such application was rejected by the learned magistrate by the impugned order and hence this revision.4. the main contention of the petitioners before the learned magistrate as also before this court is that the continuation of the proceeding before the learned judicial magistrate, ixth court at allpore is bad in law for the lack of jurisdiction. mr. sekhar bose, learned advocate appearing for the petitioners submits that it must be clearly made out that alleged offence or part of it was committed within the territorial jurisdiction of the court which intends to try the case. according to mr. bose in the present case the alleged offence either under section 408 or section 409, ipc had taken place at gujarat which is beyond the territorial jurisdiction of the learned magistrate, ixth court, alipore. mr. bose submits that in the present case the money was allegedly collected by the accused petitioner at gujarat and they were supposed to render their accounts to the branch office of the complainant's company at ahmedabad. the failure to submit the accounts had completed the offence and this gave jurisdiction to the competent court at ahmedabad to try the case. in support of his contention mr. bose relies on a judgment of this court reported in 1993 cri lj 831 (s.r. sharma v. the state of w.b.). in the said judgment it was held by the learned single judge of this court as follows :-so far as the allegation goes the offence was committed at bombay and the money was received, retained and misappropriated at bombay. the only ground on which the jurisdiction is ascribed to the calcutta court is that the accused was required to account for the money to the head office of the company at calcutta. on the other hand, the learned advocate for the petitioner has attracted my attention to several provisions of the companies act, 1956 in support of his contention that the petitioner had no liability to account for the money received by him at bombay to the head office at calcutta. section 2(9) of the companies act defines 'branch office'. it is however an admitted fact that the bombay office of the company is a branch office and the head office is at calcutta section 209 of the act provides for keeping of books of account of the company. sub-section (1) of section 209, inter alia, provides that every company shall keep at its registered office proper books of account with respect, to all sums of money received and expended by the company and the matter in respect of which the receipt and expenditure take place, etc. etc. subsection (2) of section 209 provides that where a company has a branch office, the company shall be deemed to have complied with the provisions of sub-section (1), if proper books of account relating to the transactions effected at the branch office and kept at that office and proper summarised returns, made up to dates to intervals of not more than three months are sent by the branch office to the company at its registered office or the other place referred to in sub-section (1)'....it is, therefore, evident that when accounts of the branch office have to be maintained at the branch office showing inter alia all sums of money received, any employee or officer of the company who receives any sum of money on behalf of the company as a part of the transactions and activities performed by the branch office such employee or officer has to account for the same at the branch office. here in the present case the allegation is that the petitioner collected the money at bombay on the basis of the bills raised by the branch office at bombay and that being so this is a transaction which is required to find place in the accounts required to be maintained at the branch office at bombay and therefore it must be held that the petitioner who collected the money as a part of the transaction falling within the domain of accounts required to be maintained at bombay has to account for the same at the branch office at bombay. the fact that from the branch office periodical statements of accounts or even regular statemets of account are sent to the registered office at calcutta or that all accounts are centrally audited at the head office at calcutta does not make the accused liable to account for at the head office any sum received by him as part of the activities and transactions carried on at the branch office.5. i have carefully gone through the judgment referred to above and in my considered view the said judgment is not applicable in the present case. the facts and circumstances of the present case are quite different. in the case referred to above the company had a branch office at bombay and the accused collected the money at bombay on the basis of the bills raised by the branch office at bombay and the accused was to account for the same at the branch office at bombay. in such circumstances it was held that the calcutta court had no jurisdiction to try the case and the jurisdiction lies with the bombay court, but in the present case the situation is quite different. from the petition of complaint it becomes clear that the complainant's company has no branch office in gujarat. it has been specifically stated in the petition of complaint that; 'all particulars regarding sales throughout the country are required to be accounted for in the calcutta head office'. so the complainant's company having no branch office in gujarat, the question of submitting accounts with the branch office does not arise.6. the next judgment relied upon by mr. bose is reported in : air2000sc2966 (navinchandra n. majithia v. state of maharashtra. from a reading of the said judgment of the hon'ble supreme court it appears that an fir was lodged at shlllong in the state of meghalaya. accused petitioner filed an application under article 226 of the constitution of india in bombay high court, which was dismissed by the high court on the ground of want of jurisdiction. it was held by the hon'ble apex court that mere fact that fir was registered in a particular state is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another state. the place of residence of a person moving a high court is not the criterion to determine the contours of the cause of action in the particular writ petition. it was further held by the hon'ble supreme court that the high court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the teritorial limits of its jurisdiction. it depends upon the facts in each case.7. in the aforesaid judgment of the hon'ble supreme court: it has been further held as follows :-so far as the question of territorial jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is the place where the alleged offence was committed.8. in the present case although the] money was collected in gujarat, the offence became complete with the non-furnishing of the acounts by the accused persons in the calcutta office. the complainant's company having no branch office to gujarat. calcutta office is the only place where the accused are to submit accounts.9. section 181, sub-section (4) runs as follows :-any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.10. considering the facts and circumstances of the case and keeping in view the provision of section 181, sub-section (4) of the code of criminal procedure i am of the view that where the offence is of non-accounting and there is no specific allegation of misappropriation in any particular place, the venue of the trial will be the place where the accounting has to be done and has not been done. accordingly i hold that the learned judicial magistrate, ixth court is competent and has got territorial jurisdiction to try the present case.11. the present application accordingly fails and the rule is discharged. the learned magistrate is directed to proceed with the trial and to conclude the same with utmost expedition.12. the lower court records may be sent down to the court below immediately.13. as the similar point of law is involved in the other two criminal revisional applications being crr no. 1085 of 1995 and crr no. 1086 of 1995, the judgment delivered by this court today in crr no. 1084 of 1995 shall also govern the said two revisional applications, which are also accordingly dismissed.14. the lower court records may be sent down to the court below immediately and the learned magistrate is directed to proceed with the trial as directed above.
Judgment:
ORDER

Debiprasad Sengupta, J.

1. This revisional application is directed against an order dated 26-12-1994 passed by the Id. Judicial Magistrate, IXth Court, Alipore on C.G.R. Case No. 2939 of 1988 under Section 408/409 of the Indian Penal Code thereby rejecting the petitioners' application for discharge from the case.

2. On the basis of a complaint lodged by one R.S. Agarwal, Manager, Finance and Accounts, M/s. Jenson and Nicholson (India) Ltd. having its head office at 225, A.J.C. Bose Road, Calcutta, a case was registered with Ballygunge police station being Ballygunge P.S. case No. 105 dated 6-7-1990 under Sections 467/468/471/408/409 of the Indian Penal Code. In the first informtion report it was alleged that the present petitioner No. 2 was the proprietor of M/s. Namrata Paints, a dealer of paints and commission agent having his office at Rajkot, Gujarat and the petitioner No. 1 is the son of the petitioner No. 2 and also a Sales Representative of the Company in Ahmedabad section. It was alleged that said M/s. Namrata Paints used to collect orders and the goods were supplied from the complainant Company at Calcutta as per their orders. It was alleged that the accused persons entered into a criminal conspiracy and placed orders for supply of goods in the names of different parties and also took delivery of the said goods. Later on it was detected by the complainant that some of the parties in whose favour the orders were supplied were not in existence at all. The goods were taken delivery of by the accused on their behalf and the sales tax payable by them was also misappropriated by the accused. When the complainant approached the parties, in whose favour orders were supplied, for payment of the sales tax on the value of the goods, it was ascertained that the orders were not placed by them and they were not responsible for payment of any sales tax. It was further alleged that the accused persons by placing orders in favour of the said parties had deposited the value of the goods, but misappropriated the sales tax dues, which were realised by them. It was also stated in the petition of complaint that all particulars regarding the sale of goods throughout the country are required to be accounted for in the Head Office of complainant's company at Calcutta.

3. On completion of investigation chargesheet was submitted by the police under Section 408/409, I.P.C, On the basis of charge-sheet the learned Magistrate took cognizance of the offence. After the copies of police papers and documents were supplied to the accused petitioners they filed an application before the learned Magistrate praying for discharge from the case. Such application was rejected by the learned Magistrate by the impugned order and hence this revision.

4. The main contention of the petitioners before the learned Magistrate as also before this Court is that the continuation of the proceeding before the learned Judicial Magistrate, IXth Court at Allpore is bad in law for the lack of Jurisdiction. Mr. Sekhar Bose, learned Advocate appearing for the petitioners submits that it must be clearly made out that alleged offence or part of it was committed within the territorial Jurisdiction of the Court which intends to try the case. According to Mr. Bose in the present case the alleged offence either under Section 408 or Section 409, IPC had taken place at Gujarat which is beyond the territorial jurisdiction of the learned Magistrate, IXth Court, Alipore. Mr. Bose submits that in the present case the money was allegedly collected by the accused petitioner at Gujarat and they were supposed to render their accounts to the branch office of the complainant's company at Ahmedabad. The failure to submit the accounts had completed the offence and this gave jurisdiction to the competent Court at Ahmedabad to try the case. In support of his contention Mr. Bose relies on a Judgment of this Court reported in 1993 Cri LJ 831 (S.R. Sharma v. The State of W.B.). In the said Judgment it was held by the learned single Judge of this Court as follows :-

So far as the allegation goes the offence was committed at Bombay and the money was received, retained and misappropriated at Bombay. The only ground on which the jurisdiction is ascribed to the Calcutta Court is that the accused was required to account for the money to the head office of the company at Calcutta. On the other hand, the learned Advocate for the petitioner has attracted my attention to several provisions of the Companies Act, 1956 in support of his contention that the petitioner had no liability to account for the money received by him at Bombay to the head office at Calcutta. Section 2(9) of the Companies Act defines 'branch office'. It is however an admitted fact that the Bombay office of the Company is a branch office and the head office is at Calcutta Section 209 of the Act provides for keeping of books of account of the company. Sub-section (1) of Section 209, inter alia, provides that every company shall keep at its registered office proper books of account with respect, to all sums of money received and expended by the company and the matter In respect of which the receipt and expenditure take place, etc. etc. Subsection (2) of Section 209 provides that where a company has a branch office, the company shall be deemed to have complied with the provisions of Sub-section (1), if proper books of account relating to the transactions effected at the branch office and kept at that office and proper summarised returns, made up to dates to intervals of not more than three months are sent by the branch office to the company at its registered office or the other place referred to in Sub-section (1)'....It is, therefore, evident that when accounts of the branch office have to be maintained at the branch office showing inter alia all sums of money received, any employee or officer of the company who receives any sum of money on behalf of the company as a part of the transactions and activities performed by the branch office such employee or officer has to account for the same at the branch office. Here in the present case the allegation is that the petitioner collected the money at Bombay on the basis of the bills raised by the branch office at Bombay and that being so this is a transaction which is required to find place in the accounts required to be maintained at the branch office at Bombay and therefore it must be held that the petitioner who collected the money as a part of the transaction falling within the domain of accounts required to be maintained at Bombay has to account for the same at the branch office at Bombay. The fact that from the branch office periodical statements of accounts or even regular statemets of account are sent to the registered office at Calcutta or that all accounts are centrally audited at the head office at Calcutta does not make the accused liable to account for at the head office any sum received by him as part of the activities and transactions carried on at the branch office.

5. I have carefully gone through the judgment referred to above and in my considered view the said Judgment is not applicable in the present case. The facts and circumstances of the present case are quite different. In the case referred to above the company had a branch office at Bombay and the accused collected the money at Bombay on the basis of the bills raised by the branch office at Bombay and the accused was to account for the same at the branch office at Bombay. In such circumstances it was held that the Calcutta Court had no jurisdiction to try the case and the Jurisdiction lies with the Bombay Court, But in the present case the situation is quite different. From the petition of complaint it becomes clear that the complainant's company has no branch office in Gujarat. It has been specifically stated in the petition of complaint that; 'All particulars regarding sales throughout the country are required to be accounted for in the Calcutta Head Office'. So the complainant's company having no branch office in Gujarat, the question of submitting accounts with the branch office does not arise.

6. The next Judgment relied upon by Mr. Bose is reported in : AIR2000SC2966 (Navinchandra N. Majithia v. State of Maharashtra. From a reading of the said judgment of the Hon'ble Supreme Court it appears that an FIR was lodged at Shlllong in the State of Meghalaya. Accused petitioner filed an application under Article 226 of the Constitution of India in Bombay High Court, which was dismissed by the High Court on the ground of want of Jurisdiction. It was held by the Hon'ble Apex Court that mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of Jurisdiction of another State. The place of residence of a person moving a High Court is not the criterion to determine the contours of the cause of action in the particular writ petition. It was further held by the Hon'ble Supreme Court that the High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the teritorial limits of its jurisdiction. It depends upon the facts in each case.

7. In the aforesaid Judgment of the Hon'ble Supreme Court: it has been further held as follows :-

So far as the question of territorial Jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is the place where the alleged offence was committed.

8. In the present case although the] money was collected in Gujarat, the offence became complete with the non-furnishing of the acounts by the accused persons in the Calcutta office. The complainant's company having no branch office to Gujarat. Calcutta office is the only place where the accused are to submit accounts.

9. Section 181, Sub-section (4) runs as follows :-

Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.

10. Considering the facts and circumstances of the case and keeping in view the provision of Section 181, Sub-section (4) of the Code of Criminal Procedure I am of the view that where the offence is of non-accounting and there is no specific allegation of misappropriation in any particular place, the venue of the trial will be the place where the accounting has to be done and has not been done. Accordingly I hold that the learned judicial Magistrate, IXth Court is competent and has got territorial jurisdiction to try the present case.

11. The present application accordingly fails and the Rule is discharged. The learned Magistrate is directed to proceed with the trial and to conclude the same with utmost expedition.

12. The lower Court records may be sent down to the Court below immediately.

13. As the similar point of law is involved in the other two criminal revisional applications being CRR No. 1085 of 1995 and CRR No. 1086 of 1995, the judgment delivered by this Court today in CRR No. 1084 of 1995 shall also govern the said two revisional applications, which are also accordingly dismissed.

14. The lower Court records may be sent down to the Court below immediately and the learned Magistrate is directed to proceed with the trial as directed above.