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HIGH COURT OF CALCUTTA
N. C. Talukdar
BIJOYANAND PATNAIK - Appellant
Versus
K. A. A. BRINNAND - Respondent
Criminal Revn. Case 466 Of 1968
Decided On : AUGUST 08, 1969
CRIMINAL JURISDICTION - Section 181(2) of the Code of Criminal Procedure - Venue of trial of an offence of criminal breach of trust - Where the factum of entrustment and the positive act of conversion had not taken place within the jurisdiction of the court, the offence of criminal breach of trust is not triable at that place.
Fact of the Case:
The petitioner, Sri Bijoyanand Pattanayak, was accused of criminal breach of trust in respect of two aircrafts, VT-CRA and VT-CXR, which originally belonged to M/s. Indamer and Company (P) Limited. The prosecution alleged that the petitioner had obtained the aircrafts on the basis of an agreement of hire-purchase and had entered into an agreement with M/s. Indamer and Company (P) Limited to use their chartered permit for operating the aircrafts. However, the petitioner failed to make the final payment and the ownership of the aircrafts could not be changed from the name of M/s. Indamer and Company (P) Limited to the petitioner's name in the certificate of registration. The petitioner then came into contact with Capt. Brinnand, the husband of the complainant, Mrs. K. A. A. Brinnand, for making arrangements for the operation of the aircrafts on the strength of the operating licence or permit standing in the name of the Kalinga Air Lines, whereof Sri Pattanayak was the proprietor. An agreement was executed between Sri Pattanayak and Capt. Brinnand on the 1st March, 1958 whereby Sri Pattanayak allowed Capt Brinnand to use the operating licence, standing in the name of the Kalinga Air Lines, without taking any profit. The petitioner filed a petition of complaint before the learned Chief Presidency Magistrate, Calcutta on the 17th April, 1967 against the two accused persons viz., Mr. 3, P. Koszarek and Sri Bijoyanand Pattanayak, under Section 406, I. P. C. The learned Chief Presidency Magistrate, Calcutta, thereupon by his order dated the 7th June, 1967, issued process against Sri Bejoyanand Pattanayak under Section 406 I. P. C. The petitioner filed a Rule for setting aside the order dated the 24th April, 1968 passed by Sri K. J. Sengupta, Chief Presidency Magistrate, Calcutta, holding that a prima facie case was made out against the accused-petitioner, Sri Bijoyanand Patnayah, and framing charges against him under Section 406 I. P. C. on two counts, in case No. C/1023 of 1967 and for quashing the said proceedings.
Finding of the Court:
The court held that the venue of the trial of the instant case was not the Court of the learned Chief Presidency Magistrate, Calcutta and accordingly the proceedings pending there were vitiated by the absence of any jurisdiction.
Issues: Whether the court of the learned Chief Presidency Magistrate, Calcutta had the requisite jurisdiction to try the offence of criminal breach of trust alleged against the petitioner.
Ratio Decidendi: The court held that the offence of criminal breach of trust is not triable at a place where neither the factum of entrustment nor the positive act of conversion had taken place, because an offence of criminal breach of trust always consists in an act and not in an omission. The court further held that the allegation of conspiracy in the petition of complaint did not make out a case of a conspiracy under Section 120b I. P. C. and that the court of the learned Chief Presidency Magistrate, Calcutta was right in holding that it was non est.
Final Decision: The court made the Rule absolute and quashed the impugned order dated the 24th April, 1968 passed by Sri K. J. Sengupta, Chief Presidency Magistrate, Calcutta, as also the relative proceedings, being case No. C/1023 of 1967, pending before the learned Magistrate, as without jurisdiction.
( 1 ) THIS Rule is for setting aside an order dated the 24th April, 1968 passed by Sri K. J. Sengupta, Chief Presidency Magistrate, Calcutta, holding that a prima facie case was made out against the accused-petitioner, Sri Bijoyanand Patnayah, and framing charges against him under Section 406 I. P. C. on two counts, in case No. C/1023 of 1967 and for quashing the said proceedings.
( 2 ) THE facts leading on to the present Rule are chequered but can be put in a short compass. The prosecution case brings to light an unfortunate case of a friendship foundering on two airships. The bone of contention between the two parties, both of whom are respectable and were erstwhile friends, is two aircrafts viz. VT-CRA and VT-CXR, which originally belonged to M/s. Indamer and Company (P) Limited, Customs House Road, Bombay. The prosecution case inter alia is that Capt. Brinnand (P. W. 4) the husband of the present complainant, Mrs. K. A. A. Brinnand (P. W. 1), purchased the abovementioned two aircrafts on the basis of an agreement of hire-purchase (Ext. 4), entered into on the 26th October. 1954 for a sum of Rs. 3,42,300/-payable in instalments. It was agreed that on payment of the abovementioned amount in full, Capt. Brinnand will become the absolute owner of the aircrafts. The final payment was made on the 6th August, 1965 with the sum of Rs. 20,000/-which was the amount then due, to M/s. Indamer and Company (P) Ltd. through one of its directors, Mr. J. P. Koszarek as per Ext 6. Capt. Brinnand however having no operating licence or permit standing in his name for operating the aircrafts purchased by him as per the terms of the deed of agreement mentioned above, another agreement was entered into between him and M/s. Indamer and Company (P) Limited on the basis of a letter (Ext. 7), whereby the latter company allowed its chartered permit to be used by Capt. Brinnand on payment of a licence fee of Rs. 20,000 per year. The prosecution case further is that in the absence of an operating licence, the ownership of the two aircrafts also could not be changed from the name of M/s. Indamer and Co. (P) Limited to Capt Brinnand's name in the certificate of registration, kept in the Civil Aviation Department, Govt. of India. The licence pi M/s. Indamer and Company (P) Limited in the meanwhile was cancelled by the authorities because of some irregularities in the working of the said company and Capt. Brinnand out of his anxious consideration that the two aircrafts purchased by him did not remain idle, came into contact with Shri Bijoyanand Pattanayak for making arrangement for the operation thereof, on the strength of the operating licence or permit for non-scheduled flight of the aircrafts standing in the name of the Kalinga Air Lines, whereof Sri Pattanayak was the proprietor. An agreement (Ext. 11) accordingly was executed on the 1st March, 1958 between Sri Pattanayak and Capt. Brinnand on certain terms whereby Sri Pattanayak allowed Capt Brinnand to use the operating licence, standing in the name of the Kalinga Air Lines, without taking any profit as the said licenses were remaining idle. As the two aircrafts stood in the name of M/s. Indamer and Company (P) Limited in the register of the Civil Aviation Department, Capt. Brinnand made arrangements to transfer the same to the Kalinga Air Lines (P) Limited, which in the meanwhile had come into existence. M/s. Indamer and Co. (P) Limited, agreed to allow the Kalinga Air Lines (P) Ltd. on the basis of an agreement (Ext. 12) dated the 1st March, 1958, to use six of their aircrafts including VT-CXR. With regard to the aircraft VT-CXR, it was agreed that the Kalinga Air Lines (P) Limited would not have to pay anything for its user. On the same date M/s. Indamer and Company (P) Limited wrote a letter to M/s. Kalinga Air Lines (P) Limited expressing their willingness to sell the Dakota aircraft, VT-CRA for Rs. 40,000. No consideration, however, was passed in the alleged sale of the sai
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