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Criminal Transfer Application No. 157 of 1968, decided on 12th December 1968.

S. 526 read with S. 181(2)‑Complaint under Ss. 406 & 420, P. P. C. naming witnesses residing at place J‑Contract between petitioner and com plainant residing at J made at place K and alleged dishonest induce ment also given by petitioner at K‑Goods received and dishonestly misappropriated by petitioner at K‑Natural evidence in case to be given by persons residing at K‑Transfer of case from Court at J to Court at K, held, expedient for ends of justice.

Muhammad Aslam and others v. The State P L D 1962 Kar. 499 not relevant.

M. M. Pirzada for Appellant No. 1.

M. Ibrahim for Respondent No. 1.

M. Safdar for the State.

Date of hearing : 9th December 1968.

The petitioners are carrying on business as commission agents at Karachi whilst the first respondent also carries on a commission agency business in Jacobabad. The first respondent used to meet the petitioners in Karachi and, in the events that happened, he appointed them as his commission agents, and in pursuance of the said appointment between 6‑5‑1967 and 10‑5‑1967 he sent the petitioners 661 bags of rapeseed from Jacobabad to Karachi. The petitioners received all the said bags in Karachi and had to sell them and remit the sale proceeds to the first respondent in Jacobabad after deducting their own charges, commission, etc. According to the first respondent, the petitioners failed to account to him for the amount of Rs. 16,500 which was due to them in respect of 280 out of the said 661 bags of rapeseed. As the first respondent used to come to Karachi, when he was in Karachi he met the petitioners in connection with his claim and in the presence of two witnesses, the petitioners repudiated his claim and denied ever having received the said 280 bags. Therefore the first respondent filed a complaint against the petitioners in the Court of the Sub‑Divisional Magistrate, Jacobabad under sections 406 and 420, P. P. C. and in the F. I. R. he has mentioned the names of two witnesses residing in Jacobabad, in whose presence the petitioners are alleged to have stated that they had not received the said 280 bags and thereby committed the alleged offences.

2. The petitioners have filed a transfer application in this Court for the transfer of the above‑mentioned complaint to Karachi. They have admitted the receipt of the 661 bags from the first respondent and this admission has been confirmed by their counsel before me in Court. Their plea is that they have paid the first respondent the full amount due to him for the 661 bags, and that in fact a small balance is due to them on account. They have therefore contended that the complaint is false. They further contended that any event, as they have admitted receipt of all the bags sent to them by the first respondent, the only question in issue in the complaint filed by the first respondent will be the determination of their contention that they have made full payment to the first respondent. Therefore they submit that, as the remittance has been made from Karachi, all the material evidence will require to be recorded in Karachi, not in Jacobabad, and the case against them should be transferred to Karachi under section 526, Cr. P. C.

3. Mr. Ibrahim Memon, learned counsel for the first respondent, has objected to this application and relied on the provision of section 179, Cr. P. C. and a judgment of this Court reported in Muhammad Aslam and others v. The State (P L D 1962 Kar. 499). Section 179, Cr. P. C. states as follows :‑

"179. 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."

4. However, the Legislature has made specific provision under section 181, Cr. P. C. for the trial of offences specified in it. Subsection (2) of section 181 states as follows :‑

"181 (2). 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 offences was received or retained by the accused person, or the offence was committed."

As the offences alleged against the petitioners fall under sec tion 181(2) it is these provisions which will be applicable, therefore the judgment cited is not relevant, and the question for determination is whether the alleged misappropriation or breach of trust by the petitioners took place in Karachi or in Jacobabad. According to the complaint, the contract with the petitioners was made in Karachi, the dishonest inducement by which the first respondent was made to part with his bags was given or held out to him by the petitioners in Karachi the bags were received by the petitioners in Karachi, and dishonestly misappropriated by them in Karachi, therefore it follows that no part of the alleged offences were committed in Jacobabad. In view of the plain language of subsection (2) of section 181, which is the special provision prescribed by the Legislature for the trial of the alleged offences, it is clear that only the Courts of Karachi have jurisdiction to try the complaint against the peti tioners. Therefore the transfer application has to be granted.

5. Additionally, learned counsel argued that even if the alleged failure of the petitioners to pay the first respondent could confer jurisdiction on the Jacobabad Courts, the case was still fit to be transferred to Karachi as most of the evidence would have to be recorded in Karachi except the evidence of the complainant which was not very relevant. This contention of learned counsel for the petitioners is correct. The petitioners have admitted the receipt of the bags and, for abundant caution. I have also recorded an admission of learned counsel for the petitioners in this respect. Therefore the question for determination in the prosecution on the petitioners will be whether they have made payment to the first respondent as alleged by them. Payment must have been made by remittances through a bank or by money orders from Karachi to Jacobabad. Therefore the evidence essential to the case will be the evidence pertaining to the remittances made from Karachi. It follows that the natural evidence in the case will have to be given by persons residing in Karachi and by producing records and account books in Karachi. Even if any evidence is required to be given in respect of the payment received by the first respondent in Jacobabad, it seems to me that most of th3 evidence will relate to what transpired in Karachi and not in Jacobabad. In this view of the matter it seems tome that it will be expedient for the ends of justice and it will also to the general convenience of the witnesses required to be examined in this case if the transfer application is allowed. The transfer application is allowed and the statement of learned counsel for the petitioners is filed. The cash should be forwarded immediately to the A. D. M., Karachi who will transfer it to a competent Magistrate.

Application allowed.

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