Report No. 41
15.21. Applicability by section 179.-
In some early decisions the Courts considered the rule in section 179 applicable and held that the place where the complainant suffered loss "in consequence of" the accused person's act could be the venue for his trial on a charge of criminal breach of trust. The following extract from a judgment of the Allahabad High Court1 typifies this line of reasoning.-
"The consequence which ensued here is that money was taken out of the pocket of a British India subject. That man suffered in Allahabad from the consequence of the applicant's supposed guilt. Section 181(2) of the Code does not in any way modify the provision of section 179."
Most High Courts, however, have taken the view that loss to any person caused by the misappropriation is not an ingredient of the offence, that the offence is complete as soon as there is appropriation, conversion or use with a dishonest intention and that section 179 has no application whatever in regard to this offence.
1. Mohammed Rashid v. Emp., AIR 1926 All 466.
15.22. Applicability of section 182.-
Where it is doubtful whether the misappropriation took place at A or at B, the first clause of section 182 ("when it is uncertain in which of several local areas an offence was committed") is applicable and it has been held by the Supreme Court1 that the offence may be tried at either place. The provisions of section 182 are supplemental to those contained in the last five words of section 181(2) ("or the offence was committed") and the latter does not exclude the former.
1. State of Madhya Pradesh v. K.P. Ghiara, AIR 1957 SC 196.
15.23. English law.- The law1 in England is stated in the following terms.-
"The embezzlement is committed in the place where the accused person has refused to account, or, if there is no evidence of fraudulent embezzlement except of no.-accounting in the place where he ought to have accounted and failed to do so, or has accounted falsely, or in the place where he received and misappropriated the property in question."
1. Halsbury's Laws of England, (3rd Edn.), Vol. 10, para. 1523, p. 788.
15.24. Amendment of su.-section (2) recommended.-
In view of the conflicting decisions noted above, we recommend that su.-section (2) of section 181 should be amended to read.-
"(2) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person."
We do not think it necessary to limit the additional alternative venue, namely, the local area where the property was required (by law or contract) to be returned or accounted for by the accused person, to cases where there is no evidence of the offence other than the failure to return or account for the property.
15.25. Section 181(3).-
Su.-section (3) of section 181 provides alternative venues for two categories of offences, namely, (i) theft and any offence which includes theft, and (ii) any offence which includes the possession of stolen property. The first category includes the aggravated forms of theft like theft in a building, theft by a servant, etc., and also robbery and the aggravated forms of robbery involving theft, but not extortion and its aggravated forms. The second category, however, comprises all offences which include the possession of stolen property. As defined in section 410 of the Penal Code, stolen property includes not only property the possession of which has been transferred by theft or robbery, but also property the possession of which has been transferred by extortion and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed.
15.26. Amendment of 1923.-
The su.-section was given its present form by the Amendment Act of 1923. Originally, it only referred to "the offence of stealing or any offence which includes stealing". The Lowndes Committee which examined the Amendment Bill accepted the proposal to replace "stealing", by the technical term "theft" and, furthermore, enlarged the enumeration of offences to include the possession of stolen property. Their Report added somewhat cryptically.-
"This will cover the case of extortion; see the definition in section 410 I.P.C."
15.27. Further amendments recommended.-
It is clear, however, that the revised su.-section does not cover the offence of extortion or any offence which includes extortion. We see no reason,, why it should not. It would indeed be convenient in many cases of extortion if the alternative venues provided in su.-section (3) for theft and robbery were available. We recommend that the su.-section should be split into two su.-sections: one dealing with the offences of theft, extortion and robbery, including their aggravated forms, and the other dealing with offences which include the possession of stolen property. These su.-sections may be as follows.-
"(3a) Any offence which includes theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by person who received or retained such property knowing or having reason to believe it to be stolen property,
(3b) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property."
15.28. It will be noticed that under the second su.-section, the venue for an offence punishable under sections 411, 412, 413 or 414, I.P.C. does not include the jurisdiction within which the stolen property was possessed by the person committing the original offence. Since, however, under section 18.- vide illustration (b.-the venue could be laid in the jurisdiction within which the original offence was committed, the position for all practical purposes would remain the same.
15.29. Section 181(4).-
In regard to the offences of kidnapping or abducting a person, su.-section (4) of section 181 provides that the venue may be laid either in the jurisdiction where the offence was committed or where the kidnapped or abducted person was conveyed or concealed or detained. While the provision is adequate and does not require any change of substance, we recommend a slight change of wording to improve its form.1
1. See para. 15.38 below.
15.30. Venue for cheating in certain types of cases.-
Controversial questions have frequently arisen in regard to the venue for the offence of cheating where the fraudulent or dishonest misrepresentation is made by post, telegram or long distance telephone and where the property of which the person deceived is cheated is delivered to a common carrier or other agent at one place and received by the cheat at another place. In the absence of special provisions similar to these contained in section 181, such questions have necessarily to be decided with reference to the general principles laid down in sections 177, 179 and 182. Different views have been expressed by the High Courts in applying these principles to the facts of the particular cases before them.