Judgement

GOVINDA MENON, J - On the 18th December, 1951, the Inspector of Police C.I.D., Nagpur filed a charge sheet, which was transferred for disposal to the 1st class Magistrate, Nagpur, against the respondent herein, under Section 408 of the Indian Penal Code, on the footing that the respondent being the personal adviser of Sir Maneckji Dadabhoy, Chairman and Managing Director of the Nagpur Electric and the Power Co. Ltd., Nagpur, and entrusted in that capacity with a car C.P. M-9 Plymouth, belonging to the company for sale, sold the same to Dr. C.V. Patel on the 12th of January, 1950, and embezzled the sale proceeds, with the result that an offence under the section aforesaid was committed by him. On objection being taken before the Magistrate that he had no jurisdiction to entertain the complaint, evidence was taken regarding that question and that officer by his order dated the 2nd December 1952, held the offence under Section 408, Indian Penal Code, could be tried by him and directed the case to proceed. The respondent thereupon applied to the Session Court of Nagpur to revise the Magistrate s order referred to above and the learned Sessions Judge was of opinion that the provision of law applicable being Section 182 of the Criminal Procedure Code, the Nagpur Court had jurisdiction to entertain the complaint. On a further revision to the High Court of Nagpur, the orders of the courts below were set aside on the ground that the proper court to try the case was the one at Bombay and the proceedings were, therefore, quashed. Special leave to appeal against that order to this court was granted to the State of Madhya Pradesh which is the appellant now before us.

2. The venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202 of the Criminal Procedure Code.

3. On a review of the admitted and proved facts, the jurisdiction of the Nagpur Court cannot be doubted and we may, therefore, for the purpose of deciding the question of law, summarise the facts. There can be no question whatever that the respondent as adviser to Sir Maneckji Dadabhoy, was an agent or servant of the company in question whose head office was situated at Nagpur where the books were maintained and the staff located. The Board of Directors functioned at Nagpur and the employment of the respondent was also at Nagpur, though he stayed for a time at Bombay. The entrustment of the car on the 12th January 1950, was also in Nagpur and the legal relationship between the respondent and the company was that of an agent and principal. Though the exact date of sale and the receipt of money cannot be ascertained with accuracy it is clear that the sale took place in Bombay and the proceeds were paid over to the respondent at Bombay between the 13th and the 14th of January 1950. It is also clear from the evidence that the respondent reached Nagpur on the 17th of January 1950, but the sale proceeds were not credited in the company s book, nor the money paid over to the company then or thereafter. Between the months, March and April 1950 the respondent made at least six trips between Bombay and Nagpur, but there is no indication whatever that he paid over the amount to the company. It was only some time in October 1950, when at a general meeting of the share-holders of the company when Sir Maneckji Dadabhoy was questioned about the sale proceeds of the car and on his direction that the respondent would answer the interrogation, that the respondent replied that the proceeds were entered in the books of the company which admittedly was a false statement.

4. On the above mentioned facts the prosecution alleges that there has been an embezzlement of the sale proceeds by the respondent which should be en