9911796707
TMI Blog2007 (5) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in West Bengal on commission basis. Pursuant to or in furtherance of the said agreement, Respondent No. 1 under the direction of Respondent No. 2 used to make arrangement of railway rakes at different railway stations in the State of Uttar Pradesh, Rajasthan, Uttaranchal, Madhya Pradesh and Haryana for export of rice and wheat from Food Corporation of India to Bangladesh for and on behalf of the appellant. Allegedly, in course of rendition such services, respondents committed various acts of breach of trust, cheating, forgery and criminal conspiracy. One of their employees was also assaulted. A complaint petition was filed by the Appellant Company before the Chief Metropolitan Magistrate, Kolkata purported to be under Section 156(3) of the Code of Criminal Procedure, 1973 on or about 15.10.2004 inter alia alleging that a criminal conspiracy was entered into by and between accused No. 2 with accused Nos. 3 to 12 with a view to cheat the complainant Company and/or dishonestly misappropriate a huge amount of Rs. 1,62,32,837.00 by making forged and false documents, fraudulently preparing its letter heads and seals and using the same, committed breach of trust and withdrew the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n employee of the appellant viz. Subodh Singh, at Kanpur. 8. Paragraph 17 of the complaint petition reads as under: 17. It appears that under the leadership of Accused No. 2 all the Accused Persons committed serious crimes viz. preparing forged documents by printing Letter Pad and forging the Seal of your petitioner's company and forged authorization letters and collected refund amount from the Railway to the tune of Rs. 1,55,07,928.00 from the Railway Authorities of different Railway Station and fraudulently and dishonestly misappropriated Rs. 1,63,536.00 for which Demand Draft was handed over to Accused No. 2 to deposit to the District Manager, Food Corporation of India, Sitapur for cost of the materials exported by your petitioner's company on behalf of the State Trading Corporation Ltd., Chennai. But the Accused No. 2 dishonestly deposited the said draft in the account of Nafed India Ltd. with Food Corporation of India and also the Accused Persons fraudulently and dishonestly utilized indent money of your petitioner's company amounting to Rs. 3,57,810.00 for the payment of the railway freight of AK Industries and Lavi Industries. Accused persons fraudulently a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der or direction which the Hon'ble Court may deem fit and proper in the circumstances of the present case. v. Award costs to the petitioners from the contesting respondents. 12. By reason of the impugned Judgment, a Division Bench of the Allahabad High Court allowed the said Writ Petition in part. While declining to quash the First Information Report, the High Court opined: Therefore, in totality of the matter, we are of the view and accordingly direct that F.I.R. in case No. 381 dated 18th October, 2004 G.R. No. 2711/04 under Section 120B, 420, 406, 465, 468, 471 I.P.S., P.S. Shakespeare Sarani, Kolkata be transmitted to the appropriate Police Station of Uttar Pradesh through the Secretary Home, State of West Bengal and the Secretary, Home, State of Uttar Pradesh within a period of fortnight from the date of communication of this order. The concerned Investigating Officer will make all efforts to conclude the investigation preferably within a period of three months from the date of receipts of transmitted F.I.R., The petitioners will not be arrested in respect of the said crime number till the submission of chargesheet/final report, if any. The petitioners are directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 15. Mr. Rakesh Dwivedi, learned Counsel appearing on behalf of the accused/respondents, on the other hand, submitted: (i) Representations made by the accused person, if any, for the purpose of entering into an arrangement do not indicate that the same were fraudulent one or were made from the very beginning so as to attract the provisions of Section 420 of the Indian Penal Code. (ii) The complaint petition does not disclose as to which part of the cause of action arose within the jurisdiction of the Court of Chief Metropolitan Magistrate and taking into consideration the totality of circumstances, the said Court had no jurisdiction to direct investigation by the Police in terms of Section 156(3) of the Code of Criminal Procedure. (iii) Assuming that Sub-section (4) of Section 181 of the Code of Criminal Procedure is attracted in the instant case, the principal ingredient therefore being required to be which would mean that such requirement must arise either by law or contract and in absence of any averment made in the complaint petition in that behalf, the same cannot be taken recourse to. (iv) In any event as the major part of the cause of action arose within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o or tried by a Court having jurisdiction over any of such local areas. 20. Section 181 provides for place of trial in case of certain offences. Sub-section (4) of Section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commission of offence of criminal misappropriation and criminal breach of trust and with that end in view, it was provided that such an offence may be inquired into or tried by the Court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation. 21. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure will have the jurisdiction to make investigation. 22. The necessary ingredients for proving a criminal offence must exist in a complaint petition. Such ingredients of offence must be referable to the places where the cause of action in regard to commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Rs. 40,73,860.24 by M/s. PKS Ltd. for which the D/Ds are to be issued in the following manner. Shree Shyamji Udyog - Rs. 32,00,000/- payable at Golagokarnath Shree Shyamji Rice will - Rs. 5,24,861.94 - do- -do- Hanuman Prasad Ojha - Rs. 3,48,998.30 payable at Kanpur. 24. If there had been a fraudulent misrepresentation by some of the respondents at Calcutta and a conspiracy was hatched to commit offences of cheating or misappropriation, indisputably a part of cause of action arose within the jurisdiction of the learned Metropolitan Magistrate. 25. The complainant has alleged that the respondents have committed offences under Section 120B, 420, 406, 465, 468, 471 , 478 and 481 of the Indian Penal Code. 26. Although referred to in the complaint petition, but as no investigation was sought to be prayed for in respect of the assault on Subodh Singh at Kanpur Railway Station, it may not be necessary for us to address thereupon. 27. Respondents were appointed as their agents by the appellants. There, thus, existed a relationship of principal and agent. What were the terms and conditions of the contract of agency and how criminal misconducts have been comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in the writ petition that the complaint petition filed at Shillong was malafide. 31. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of State of West Bengal's having a legal duty in that behalf did not arise. Only in the event an Investigating Officer, having regard to the provisions contained in Section 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the First Information Report to the Police having jurisdiction in the matter. 32. Stricto sensu therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be malafide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was furthermore held that ordinarily the High Court should not interfere with an order taking cognizance passed by a competent court except in appropriate cases. 35. However, the order passed by the High Court of Judicature at Allahabad has been complied with, as would appear from the counter affidavit filed on behalf of the State of West Bengal. It was necessary, with a view to arrive at the bottom of the matter to conduct investigation into the allegations contained in the complaint petition by a competent investigating officer of the State of Uttar Pradesh. Some offences at various places situated within the State of Uttar Pradesh had been committed. The High Court had not issued any direction as to which Investigating Officer attached to which Police Station of Uttar Pradesh will have jurisdiction in the matter. 36. The direction of the High Court, in that way is vague and indefinite. Investigating Officer attached to one Police Station may feel handicapped in carrying out the investigation within the entire State. In this case, it may be necessary for the Investigating Officer to make investigation even in other States including Rajasthan, Madhya Pradesh, West Bengal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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