This revision petition by Muhammad Kamil petitioner is directed against the judgment of the learned Sessions Judge, Sialkot dated 6th of May 1972, whereby he dismissed the petitioner's revision against the issuance of process to him by the learned trial Magistrate vide his order dated 18th of March 1972.
2. The facts giving rise to the present petition are briefly that Haji Sh. Muhammad Bashir respondent No. 1, who is a Director of a sports-----goods manufacturing concern at Sialkot, had imported some cellulose and lacquer from West Germany. The goods reached Karachi port. His----- Clearing Agents at Karachi were, a firm known as 'Muhammad Amin and Muhammad Siddiq'.
Muhammad Kamil petitioner and his brother Muhammad Arif sons of Muhammad Amin, were the partners of that firm. Sh. Mohd. Bashir respondent received a letter Exh. P. 1, dated 19-10-1971 from the aforementioned Clearing Agents asking for Rs. 11,771, for getting the goods released from Custom Authorities. He (Sh. 'Muhammad Bashir) directed his bankers (United Bank Ltd., Sialkot), to despatch the money to the Clearing Agents. This was done on 22-10-1971. Later, on 27-12-1971, Sh.
Muhammad Bashir respondent received a letter from the said Agents that his goods had been got released and an attempt was being made to, obtain a demurrage certificate to minimize the amount. Subsequently, however, Sh. Muhammad Bashir came to know that the aforementioned firm of Clearing Agents had been declared insolvent (the date of the declaration of insolvency was 12-1-1972). He therefore directed his bankers, to make a request to some other Clearing Agents to get his goods released. The new agents informed Sh. Muhammad Bashir respondent vide his letters dated 24-1-1972 and 3-2-1972 that his earlier agents had not got the goods released; that its proprietors had misappropriated the money and that .Demurrage to the extent of Rs. 1,600 had been incurred. Sh. Muhammad Bashir respondent thereupon remitted Rs. 11,771, plus another sum of Rs. 1,600 to cover the demurrage to the new Clearing Agents for getting the ;goods released. The same were accordingly got released by the new agents. Thereafter, Sh. Muhammad Bashir filed a complaint under section 406/409, 'P. P. C., against Muhammad Kamil petitioner and his brother Muhammad Arif on 16-3-1972, alleging that they had committed criminal breach of trust by misappropriating Rs. 11,771 sent to them for getting his goods cleared from the Customs. The learned trial Magistrate recorded the state--ments of Sh. Muhammad Bashir and Muhammad Sharif, an Accountant of United Bank Ltd., Sialkot, and finding that the facts alleged by them disclosed a prima facie case under section 420/406/409, P. P. C., against Muhammad Kamil and Muhammad Arif, he issued process against them, by an order dated 18-3-1972. Muhammad Kamil petitioner filed a revision against the above-noted order of the trial Magistrate which was dismissed 'by the learned Sessions Judge, Sialkot by his judgment dated 6th of May 1972.
Hence the present revision petition.
3. The main grounds urged on behalf of the petitioners/are-------
(d) that no offence under section 420, P. P. C. Is made out from the contents of the complaint or the statements of the two witnesses recorded by the learned trial Magistrate during the preliminary inquiry; and
(ii) that offences under section 405/409, P. P. C. Are not triable by the Courts at Sialkot in view of the provisions of section 181 (2), Cr. P. C.
The learned counsel for the petitioner took me through the statement of .Sh. Muhammad Bashir recorded during the preliminary inquiry. He .,also referred to the last three lines of paragraph No. 3 of the judgment of the learned Sessions Judge which read as follows:------ "Section 420, P. P. C. Appears to have been added due to the mis--representation of the petitioner and others, that the goods had been cleared from the Customs Department but it was not done so."
The counsel did not dispute that the Courts at Sialkot did have, the jurisdic--petition to try an offence under section 420, P. P. C. But argued that no such offence was made out as it is apparent from the statement of Sh. Muhammad Bashir P. W. 1 that he had not sent the money (Rs. 11,771) to the petitioner as a result of a misrepresentation made by the petitioners that the goods -had been cleared, that the money had, in fact, been sent earlier and that -the fact that the petitioner misappropriated the money subsequently, merely makes out a case of breach of trust and not of cheating.
The learned counsel for the respondent on the other hand argued; that the petitioner did not, from the very beginning, have the intention of paying the money towards the clearance of the respondent's goods and that he had obtained the money by making a false representation which :fact is substantiated by his subsequent conduct.
4. From a reading of the complaint together with the statement of Sh. Muhammad Bashir P. W. 1 recorded by the trial Magistrate, I am of the view that the facts alleged therein, if left unrebutted, disclose a prima facie offence under section 420, P. P. C. Inasmuch as Sh. Muhammad Bashir complainant (P. W. 1) had sent the money to the two accused on their representing that the same was to be used for getting the goods cleared from the Customs, but the subsequent conduct of the accuse shows that they had not intended to use the money for that purpose, from the very beginning. As admitted by the counsel for the petitioner, an offence under section 420, P. P. C. Is, in the circumstances of the present case, triable by the criminal Courts at Sialkot. This disposes of the first contention.
5. As to the second contention that offences under section 406/409, P. P. C. Are not triable by the Courts at Sialkot in view of the provisions of section 181 (2), Cr. P. C. I am inclined to agree with the learned counsel for the petitioner. The jurisdiction of the criminal Courts in inquiries and trials is dealt with in Chapter XV of the Criminal Procedure Code. Section 177, Cr. P. C. Thereof provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. This is a general provision and is followed by special provisions; one of which is section 181 (2), Cr. P. C. Which reads as follows:---- Section 181 (2).-The offence of criminal misappropriation or of criminal breach of trust may be inquired 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. It is now well settled that specific provisions of law override the general provisions on the same subject. Subsection (2) of section 181, Cr. P. C., therefore, governs the place of trial of offences under section 406/409, P. P. C. Furthermore, as held in Muhammad Aslam v. State (PLD 1962 Kar. 499even when offences are committed in the course of the same transaction, but in different territorial limits, they should not be tried jointly in disregard of the provisions relating to territorial jurisd4ction contained in sections 177 and 183, Cr. P. C. Because the provisions "of section 239 (b) with regard to joinder of persons does not override the provisions of Chapter XV of the Code of Criminal Procedure. It was contended by the learned counsel for the respondent that these proceedings were cured by section 531, Cr. P. C. Which reads as follows:-------- "Section 531, Cr. P. C.-No finding, sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong Sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice."
I am afraid I cannot agree with this contention. It has been held in a number .Of cases that section 531, Cr. P. C. Only protects trials which are finalized without the defect in the territorial jurisdiction having been discovered in the course of the trial, and will not cure proceedings where the trial Court went ahead with the trial and heard the case notwithstanding the knowledge that it lacked the jurisdiction. Refer Muhammad Yasin v. Feroze Khan (1969 P Cr. L J 1414) and Radharani and another v. Rahim Sardar (AIR 1946 Cal. 459). It is evident that criminal breach of trust is committed at the place where the money is received and misappropriated. In the present case it was received at Karachi and the criminal Courts at Karachi would therefore have the territorial jurisdiction to take cognizance of offences under section 406/409, P. P. C. Against the petitioner. As a matter of fact a reading of the impugned order itself shows that the learned Sessions Judge, Sialkot had also taken the same view in paragraph No. 5 of his judgment but subsequently dismissed the entire revision petition without mentioning that the offences under section 406/409, P. P. C. Are not triable by the criminal Courts at Sialkot.
6. The not result of the above discussion is that the petition is partially accepted inasmuch as the trial Court is permitted only to proceed with the trial of allegation under section 420, P. P. C. And not with regard to offences under section 406/409, P. P. C. Which are beyond his territorial jurisdiction.
This disposes of the revision petition.