The failure to deliver the entrusted property at the agreed location can constitute a violation of the contract, establishing jurisdiction for trial.

Wallace, J.

1. This appeal is by Government against the acquittal of an accused by the Sub-Divisional Magistrate, Mangalore. The facts of the case, so far as are necessary for the decision of this appeal, may be taken to be as follows: On 29th January, 1927, the accused as a carrier was entrusted by P.W. No. 3, the proprietor of Hosanalla Coffee Estate, Mysore, with 225 baskets of parchment coffee to be carried by him from the estate to Mangalare for delivery there to Volkart Brothers Coffee Works. When the consignment was handed over in Managlore it was found that from 27 bags coffee had been abstracted and tailings of no value substituted. There was no evidence as to where or when the coffee was abstracted. On these facts the Police charge sheeted the accused under Section 407 of the Indian Penal Code. Part of the defence was that the Magistrate had no local jurisdiction to try the offence. This contention has found favour with the Magistrate who held that as there was no evidence that the offence took place in British India and not in Mysore territory it could not be held that the offence was committed within his jurisdiction. For this view he relied on a certain ruling of the Lahore High Court in Nadar v. Emperor 73 Ind. Cas. 323 : 24 Cr. L.J. 579 : A.I.R. 1923 Lah. 487 and in the result acquitted the accused, and Government has appealed.

2. Now it is obvious that on such a view of the case as the Magistrate has taken the result will follow that in all such cases a theft will never be brought to book at all when it is impossible to get evidence as to the exact locality of the theft, and that would be so in almost every such case. The British Court will refuse jurisdiction because it is not proved that the offence occurred in British India, and the Mysore Court, which follows practically the same Code of Criminal Procedure, will refuse jurisdiction because it is not proved that the offence occurred in Mysore. The offence will, therefore, go wholly unpunished because it cannot be decided which Court has jurisdiction. That is a result so opposed to justice and common sense that I should refuse to adopt it unless the processual law absolutely compels such a view.

3. The Public Prosecutor has relied upon Section 183 of the Criminal Procedure Code but I do not think that section assists here. It only applies if the place of offence is in British India. It would not give jurisdiction to a Court in British India to try an offence committed outside British India merely because the offence was committed in the course of a journey. This is the effect of the ruling in Bapu Badli v. Queen 5 M. 23 : 1 Weir 1. It appears to me that the real solution of the difficulty lies in an examination of the offence committed. The offence is criminal breach of trust, by a carrier. The ingredients of a criminal breach of trust so far as is necessary to set them out here are first, entrustment of property, and second either a dishonest misappropriation of property or a dishonest disposal of that property in violation of any contract which the accused has made touching the discharge of such trust, or wilfully suffering any other person so to do. If the accused had taken dishonestly the coffee entrusted to him at someplace on the journey between the estate and Mangalore he would undoubtedly have misappropriated dishonestly the property entrusted to him and could be convicted thereof by any Court which has jurisdiction over the locality, where the misappropriation occurred. But apart from this it appears to me reasonable to hold that, when he did not deliver the coffee at Mangalore he violated the contract under which he was entrusted with it, and that such violation would, if dishonest, make him equally guilty of criminal breach of trust. That is the offence of criminal breach of trust was committed in Mangalore itself by such failure to deliver provided the failure was found due to dishonest disposal of that property or wilfully suffering any othe