The offence of criminal breach of trust is not contingent on the consequence of loss, and the forum for such offences is determined by specific provisions of the Criminal Procedure Code.

JUDGMENT

Mukerji, J. - Section 177, Criminal Procedure Code lays down the general law as to the venue of an enquiry or trial: it says that every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Section 179, Criminal Procedure Code lays down that when a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued, such offence may be enquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued. Section 181, Sub-section (2) says that the offence of criminal misappropriation or of criminal breach of trust may be enquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person or the offence was committed.

2. In the case of Simhachalam v. Emperor (1916) 44 Cal 912 it was held by this Court, on a careful review of the decisions of the different High Courts in this country, that the jurisdiction of a Court to try an offence of criminal misappropriation or breach of trust is governed by Section 181, Sub-section (2) and not Section 179 of the Criminal Procedure Code; and that loss, though a normal result, is not an ingredient of the offence of criminal misappropriation or breach of trust and not therefore a consequence within the meaning of Section 179. In a later case, namely that of Abdul Latijff Yusuff v. Abu Mahamad Kassim AIR 1922 Cal. 46, in which a firm carrying on business in Calcutta employed the accused as agent at Singapore and prosecuted him in Calcutta for criminal breach of truss in respect of monies received at Singapore for which he was to render accounts in Calcutta, it was held by this Court that the Court in Calcutta had jurisdiction to deal with the offence. To this later decision one of the Judges in the earlier case referred to above was also a party. This later decision professed to distinguish the case of Simhachalam v. Emperor (1916) 44 Cal 912 in these words: "But here the further case of the prosecution was that for all monies received the accused was to account at Calcutta. Thus the decision directly in point is that in Colville v. Kristo Kishore (1899) 26 Cal. 746. Following that decision we must hold that on the allegations made the Courts in Calcutta have jurisdiction."

3. In the present case the trial Court was of opinion that it had no jurisdiction in view of the decision in the case of Simhachalam v. Emperor (1916) 44 Cal 912, and in that view it discharged the accused on the ground that the offence was triable in Calcutta and not at Burdwan; while the learned Sessions Judge on an application made to him against the said order of discharge held that the Court at Burdwan had jurisdiction as well in view of the decision in the case of Abdul Latiff Yusuff v. Abu Muhamad Kassim AIR 1922 Cal. 46.

4. Before proceeding to examine the facts of the present case it is perhaps desirable to discuss the effect of the said two decisions and to find out the principles on which to proceed in order to ascertain what; is the true rule applicable to a case of criminal breach of trust which the offence charged in the present case amounts to.

5. Criminal breach of trust is not an offence which counts as one of its factors, the loss that is the consequence of the act. It is the act itself, which, in law, amounts to the offence. 1 am therefore in entire accord with the decision in the case of Simhachalum v. Emperor (1916) 44 Cal 912 and am clearly of opinion that Section 179, Criminal Procedure Code has no application to a case of criminal breach of trust. The rule is to be found in Section 177, Criminal Procedure Code which lays down the general law and which again has been repeated in and made a part of the special provisions contained in Section 181, Sub-section (2), Criminal