Report No. 41
15.31. Both sections 179 and 182 held applicable.-
In an early Bombay case,1 both sections 179 and 182 were held to be applicable. The High Court observed that the act of deceiving and the act of inducing delivery of the property, were composite acts which began, in the particular case, with the delivery of the parcels to the post office at Panvel. This was an essential pArt of the offence and, although the consequent delivery of the property took place at Poona, section 179 of the Code applied to the case. Alternatively, the High Court held, the offence was committed partly in Panvel by the posting of the parcels and partly in Poona where the money was paid by the addressees to the post office. Either the second clause or the fourth clause of section 182 was applicable and the case could be tried by the Panvel court.
1. Gafur Karimbax v. Emp., AIR 1930 Boni 358. See also Yusuf Ali v. Wahajuddin, AIR 1914 All 373; Girdhar Das v. King Emp., AIR 1924 All 77.
15.32. Posting held one of series of acts.-
In another Bombay case,1 where the accused had sent from Nandurbar letters by post to various merchants in Bombay ordering goods and promising to pay on receipt of the goods, but absconded after obtaining delivery, the High Court held that the posting of the orders by the accused at Nandurbar was one of the series of acts which went to make up the offence of cheating, and the Magistrate at Nandurbar had jurisdiction under section 182 to try the offence.
1. Hormasji (in re:), AIR 1943 Born 183.
15.33. Offence committed wholly at complainant's end.-
But in a Madras case,1 where the accused at Mangalore sent by valu.-payable post parcel bogus lottery tickets to the complainant living in Trichur (Cochin State) and the latter paid a certain sum on delivery of the parcel, the Madras High Court held that the deception was practised at Trichur, the delivery of property also took place there, and consequently, the offence was committed in Trichur, and not in Mangalore. The post office was held to be the agent of the accused both for delivering the packet to the complainant and for receiving the money from him.
1. Antony D'Silvn (in re:), AIR 1949 Mad 3.
15.34. Patna and Lahore views.-
In a Patna case1 the view was taken that the offence of cheating could be tried at the place from which the accused made the false representation by sending a cheque which was dishonoured, but in a Lahore case,2 where the accused in district B sent a letter to his creditor in district G and falsely insured it for a certain sum with the intention of relying on the postal receipt of the letter as proof of discharge of his debt, it was held that the court in district G had jurisdiction under section 179 of the Code to try offence of cheating.
1. Matcalfe v. Watson, AIR 1924 Pat 708.
2. Narain Das v. Prem Chand, AIR 1931 Notes 25f (Lah).
15.35. Supreme Court's analysis.-
The Supreme Court, however, in the case of Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857 (86.-868) has decided the question entirely under section 177 of the Code and analysed the position as follows.-
"The offence of cheating under section 420 of the Penal Code as defined in section 415 of the Code has two essential ingredients, viz., (1) deceit i.e., dishonest or fraudulent misrepresentation to a person, and (2) the inducing of that person thereby to deliver property. In the present case, the volume of evidence set out above and the facts found to be true show that the appellant, though at Karachi, was making representation to the complainant through letters, telegrams and telephone talks, sometimes directly to the complainant and sometimes through Jasawalla, that he had ready stock of rice, that he had reserved shipping space and that on receipt of money he would be in a position to ship the rice forthwith.
"These representations were made to the complainant at Bombay, notwithstanding that the appellant was making the representations from Karachi. The position is quite clear where the representations were made through the trunk phone. The statement of the appellant at the Karach.-end of the telephone becomes a representation to the complainant only when it reaches cognition of the complainant at the Bomba.-end. This indeed has not been disputed.
"It makes no difference in principle if the representations have in some stages been conveyed by telegrams or by letters to the complainant directly or to some one of the appellant's agents including Jasawalla in that category. There is also no question that it is as a result of these representations that the complainant parted with his money to the tune of about Rs. 5½ lakh on three different dates.
"On these facts it is clear that all the ingredients necessary for finding the offence of cheating under section 420 read with section 415 have occurred at Bombay. In that sense the entire offence was committed at Bombay, and not merely the consequence, viz., delivery of money, which was one of the ingredients of the offence."
15.36. Special provision recommended.-
On the strength of this analysis, it might be argued in comparable cases that no part of the offence of cheating and dishonestly inducing delivery of property takes place at the accused person's end and the entire offence is committed at the deceived person's end. The application of either section 179 or section 182 might be regarded as of doubtful validity. There should, however, be no objection in principle to the person accused of cheating from a distance being triable for the offence, not only at the place where his victim was deceived and/or made to part with property, but also at the place from where the accused has been carrying on his dishonest practices and reaping the benefit. We therefore recommend that a special provision should be made in section 181 on the following lines.-
"Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within the local limits of whose jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by any Court within the local limits of whose jurisdiction the property was delivered by the person deceived or was received by the accused person."
15.37. Special provision as to venue for bigamy.-
In the absence of a special provision, the offence of bigamy can be inquired into or tried only at the place where the offence is committed. This fact, coupled with the statutory restriction1 that a complaint by the aggrieved wife or husband is necessary for initiating proceedings against the bigamist, places undue obstacles in the way of prosecuting the latter. It makes it easy for that person to go to a distant place, perhaps in another State, get the second marriage performed, return with impunity to his or her usual place of residence and live with his or her second spouse in the same neighbourhood as the first.
In other countries where the law of monogamy is traditional and is enforced with greater rigour, such conduct would not be possible. Since bigamy is conceived as an offence against the institution of marriage in which society is concerned, we consider that practical opportunity to bring offenders before the courts should not be denied by restricting the venue to the local areas where the bigamous marriage was actually performed. It should, in our opinion, be extended to the local area where the offender last resided with his or her lawfully married spouse. We recommend that a new su.-section should be included in section 181 on the following lines.-
"Any offence punishable under section 494 or section 495 of the Indian Penal Code may be inquired into or tried by any Court within the local limits of whose jurisdiction the offence was committed or the offender last resided2 with his or her spouse by the first marriage."
1. See section 198 to the Code.
2. Compare section 488(8), Cr PC.
15.38. Section 181 as revised.-
In the light of the above recommendations, section 181 may be amplified and revised to read as follows.-
"181. Place of trial in case of certain offences.- (1) Any offence of being a thug, of murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abducting a person may be inquired into or tried by a Court within whose local jurisdiction that person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of 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 any person who received or retained such property knowing or having reason to believe it to be stolen property.
(4) 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.
(5) 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.
(6) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by any Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(7) Any offence punishable under section 494 or section 495 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage."
15.39. Section 182.-
Section 182 does not require any modification, but as it lists in general terms four types of cases where different alternative venues are permissible, it would be more appropriate to place the section immediately after 177 as section 178 and put the existing 178 after section 183.
15.40. Section 18.-
incorrect wording.-Proceeding to section 183, we notice an inconsistency between the wording of the opening part and that of the concluding part which appears to have escaped judicial attention or comment. The section deals with "an offence committed whilst the offender is in the course of performing a journey or voyage", but prescribes that the venue may be laid in any local areas through or into which either "the offender or the person against whom, or the thing in respect of which, the offence was committed, passed in the course of that journey or voyage". The last four words could only mean the journey or voyage which the offender was in the course of performing when he committed the offence. If strictly interpreted in this manner, the section would seem to be of little or no practical application to the common type of cases which it is obviously intended to cover.