JUDGMENT
Muneshwari Sahay, J.
1. This is an application for quashing the proceeding pending before the Chief Judicial Magistrate, Patna, against the petitioner. The proceeding against the petitioner was instituted on a complaint filed by the opposite party. The petition of complaint is annexure 1 to the application.
2. The complaint alleged in his complaint petition that till 1973 he was one of the partners of the firm M/s Standard Mercantile Company with its Head Office at Chandra Gupta Path, Patna. There were five other partners in this firm including Shri Basudeo Agrawal. The firm had obtained a contract for supply of barrage gates from the Executive Engineer, Salandi Barrage Division Kaonghat, Orissa under an agreement dated 5.1.1966. For the efficient execution of the above contract, the firm opened an Engineering Division at Calcutta. Eventually the partners of the firm agreed to assign to the petitioner the right, title and interest of the engineering division for a sum of Rs. 20,000/- and it was alleged that a deed of assignment was accordingly drawn up as mutually agreed in favour of the petitioner at the firm’s head office at Patna. The opposite party and Shri Busudeo Agarwal put their signatures on the last page of the deed at Patna on 11.6.1969. The other partners could not sign it on that date as they did not happen to be present here. The complainant alleged further that the petitioner took away the deed from him representing that he would get it signed by other partners and he promised to return the deed. The petitioner also gave a cheque for Rs. 20.000/- which was to be encashed after the deed was completed. The petitioner however never turned up and the complainant learnt from a letter dated 30.10.1974, written by the farm’s representative at Calcutta that the petitioner had produced a photostat copy of certain deed of assignment before the Executive Engineer Salandi Dam Division, which purported to have been signed by all the partners of the firm. It is now admitted that the petitioner has filed a suit against the Executive Engineer and others in Orissa Court for recovery of Rs. 1,00,000/- on the basis of the aforesaid deed of assignment. The complainant alleged further that the office copy of the deed of assignment had been retained in office of firm and when the photostat copy was compared with the same it transpired that the entire assignment deed had been substituted by a forged deed bearing forged signature of the partners.
3.The complaint was filed on 27.1.1975 on which date the complainant was examined on solemn affirmation. The magistrate directed the complainant to produce witnesses on the following day. One witness was examined on behalf of the complainant on 28.1.1975 and on 11.2.1975 the learned magistrate passed the impugned order taking cognizance against the petition for offences under Sections 467 and 468 of the Indian Penal Code.
4. Learned Counsel for the petitioner has contended that the complainant had not been able to make out any offence under Sections 467 and 468 of the Indian Penal Code against the petitioner and that would appear from the counter-affidavit itself which the opposite party has filed in this case. It is pointed out that in the counter affidavit it is admitted by the opposite party that Basudeo Agarwal that stated before the Calcutta High Court on affidavit in case No. 418 of 1969 on 16.6.1969 that the engineering division had been actually transferred to the petitioner by a deed of assignment. The opposite party tried to explain away the statement of Basudeo Agarwal made before the Calcutta High Court by saying that Basdeo Agarwal had made the statement in the bonafide belief that the other four partners had also signed the deed of assignment. Learned Counsel submits that according to the complaint petition the deed of assignment had been drawn up on 11.6.1969 and Basudeo Agarwal had made his statement before the Calcutta High Court on 16.6.1969 and therefore, Basudeo Agarwal would not have made a statement thereon affidavit unless he was sure about the facts.
5. The photostat copy of the impugned deed has been produced before this Court as well by the petitioner and it shows that the signatures of all the partners have been attested by one V.K. Rao an admitted employee of the firm. In the counter-affidavit, the opposite party, it has been pointed out by the learned Counsel for the petitioner has not disputed the fact that V.K. Rao had attested the signatures appearing on the impugned deed. The signatures however had again been explained by the opposite party by alleging that V.K. Rao was duped into believing that the other partners had signed the deed of assignment and under that impression he attested the deed of assignment. Learned Counsel for the petitioner submits that the explanation is far from convincing and if one takes it into account the statement made by Basudeo Agarwal before the Calcutta High Court and the admitted fact that the signatures appearing on the deed had been attested by their admitted employee then the entire case of the complaint stands demolished.
6. In my opinion the proceeding against the petitioner cannot be quashed on this ground. The petition of complaint which was supported by the statement of complainant on solemn affirmation did make out an offence under Sections 467 and 468 of the Indian Penal Code against the petitioner. It is another matter that the allegation made by the complainant may eventually be found to be untrue but that would not be ,a ground at this stage for quashing the proceeding against the petitioner.
7. Learned Counsel for the petitioner however has raised another point in support of his submission that the proceeding should be quashed. It is submitted that on the allegation made by the opposite party in the complaint petition itself the Patna Court had no jurisdiction to entertain the complaint as the opposite party has not alleged in the petition of complaint that the impugned deed had been forged at Patna. In the petition of complaint “the place of occurrence” is written as Chandra Gupta Path, Calcutta or other places. In the body of complaint petition it is stated that forgery had been committed by the accused “either at Patna or at Calcutta or at any other place not known by the petitioner”. The learned Counsel for the petitioner submits that on this averment the Patna Court could have no jurisdiction to entertain the complaint. Learned Counsel for the opposite party concedes that the petitioner has not alleged positively that forgery had been committed at Patna. Learned Counsel however referred me to Section 178(a) of the Code of Criminal Procedure, 1973 to contend that Patna Court had jurisdiction to entertain the complaint. Section 178(a) is as follows:
178(a) When it is uncertain in which of several local areas an offence was committed or (b) * * * (c) * * * (d) * * * It may be inquired into or tried by a Court having jurisdiction over any of such local areas. Learned Counsel for the opposite party submits that in the instant case as well the complainant was uncertain about the place where the forgery had been committed and he had indicated in his petition of complaint that forgery had been committed either at Patna or at Calcutta or at any other place not known to him. It is therefore said that the provisions of Section 178(a) are attracted to this case which give the Patna High Court jurisdiction to entertain the complaint.
8. Learned Counsel for the petitioner on the other hand submits that the place of enquiry or trial has not been left by the Code to the sweet will of the complainant. A complainant cannot say that he does not know where the offence is committed but he will file a complaint at a particular place because he likes to do so. I am inclined to agree with the submission of the learned Counsel. If I may use the expression, uncertain place mentioned in Section 178(a) must be certain in the mind of the complainant. It is true that he may not be certain at which of those uncertain places actually the offence is committed but in order to attract the provision of Section 178(a) there must be some factual basis for the allegation that the offence had been committed but at one of the several uncertain places. A complainant cannot say that he does not know where the offence is committed and yet he would file the complaint at a place of his liking. Learned Counsel for the petitioner has referred in this connection to a decision of Gujrat High Court in the case of State v. Dhulaji Bavaji where that court was hearing an appeal against the order of acquittal of the respondent for an offence under Section 66(1)(b) of the Bombay prohibition Act. On the 23rd October, 1959, the police party had found the respondent in a state of intoxication and lying on a public road at a place called Thakarda. This eventually led to his prosecution under the Bombay Prohibition Act, The magistrate before whom the respondent had been tried came to the conclusion that the prosecution had failed to establish that the offence under Section 66(1)(b) had occurred within his territorial jurisdiction. It was contended before the High Court on behalf of the State that since the accused was found in a public place in a state of intoxication it must be assumed that he must have consumed prohibited liquor at that very place that is to say within the jurisdiction of the learned trial magistrate. The state further contended that the learned trial magistrate had jurisdiction to try the accused by reason of provisions of Sections 179, 180 and 182 of the Code of Criminal Procedure, 1898. Shelat, J. as he then was answered the contention thus ;
Now, it was not the case of the prosecution that the accused committed offence of consuming liquor in either one local area or another local area where it was an offence to consume liquor. It was therefore, not the case of the prosecution that it was not certain in which of the two local areas the accused committed the offence under Section 66(1)(b). In order to attract the provisions of Section 182 it would be necessary for the prosecution to aver that the offence was committed to one of the other local area of which it was uncertain. The prosecution in fact was not in a position to say at all as to where the offence actually occurred whether in one local area or another local area. For the reasons aforesaid none of the three Sections namely Sections 179, 180 and 182 of Code of Criminal Procedure can possibly apply.
Section 182 of the old Code corresponds to Section 178 of the new Code. In my opinion the observations apply to the facts of the instant case as well. Reading the complaint petition it gives no room for doubt that the complainant was not aware as to where the offence of forgery had been committed. It is true that in the body of the complaint petition he has stated that the offence of forgery had been committed either at Patna or at Calcutta or at any other place not known to him. It was as good a saying that the offence was committed at any place which he did not know. There was no factual basis for the averment in the petition of complaint that the offence could have been committed even at Patna. If there was any factual basis for the averment in the petition of complaint regarding the place of occurrence that was with regard to Calcutta or court at Orissa where the photostat copy had been filed by the petitioner. The photostat copy of the impugned document which had been produced by the petitioner and which Is the impugned deed in this case shows that the stamp for the same was purchased at Calcutta. V.K. Rao the admitted employee of the firm of the complainant had attested the signature of the partners of the firm at Calcutta as it appeared from his attestantion. I have pointed out that in the counter-affidavit the genuineness of this attestation is not disputed and all that is said is that V.K. Rao was duped in beliveving that the partners had really put their signatures on the deed. Therefore, if there was any factual basis with regard to the place of occurrence that was with regard to Calcutta or the court at Orissa where admittedly the impugned deed had been filed by the petitioner.
9. Reference has also been made to a decision of the Supreme Court in the case of the State of Madhya Pradesh v. K.P. Ghatra A.I.R. 1957 S.C. 196 where It was observed that the venue of enquiry or trial of the case like the one which the Supreme Court was considering was primarily to be determined by the averment contained in the complaint or charge sheet and unless the fact there were positively disproved, ordinarily the court where the charge sheet or complaint was filed had to proceed with it. That was a case of criminal breach of trust and as pointed out by Mr. Justice Shelat A.I.R. 1963 S.C. 234 the type of uncertainty contemplated under Section 182 of the old Code was well stated in A.I.R. 1957 Supreme Court 196 (supra). The accused was employed as an agent in the company whose head office was situated at Nagpur where its books were maintained and the staff located. He was entrusted with a car belonging to the company for sale. The sale took place in Bombay and the proceeds were paid over to him at Bombay between the 13th and the I4th of January, 1950, It was clear from the evidence that the accused reached Nagpur on the 17th January, 1950 but the sale proceeds were not credited in the company’s book nor the money paid over to the company then or thereafter. A chargesheet filed against him under Section 408 of the Indian Penal Code at Nagpur, did not refer to the embezzlement at Bombay nor did it indicate that it took place at Nagpur. It was on such facts that it was held that venue of enquiry or trial of the case was primarily determined by the averments contained in the complaint or charge sheet. It was further held that in the circumstances of the case that it was uncertain whether the offence of embezzlement was committed at Bombay or at Nagpur and therefore Section 182 applied and the Court of Nagpur had jurisdiction to enquire into the offence. It will be noticed that it was certain in this case that the offence, had been committed either at Nagpur or at Bombay. What was uncertain was whether the offence had actually been committed at Bombay or at Nagpur and in such a situation provisions of Section 182 of the old Code and 178 of the new Code are attracted.
10. I am satisfied for the reasons given that Patna Court in the instant case had no jurisdiction to entertain the complaint.
11. In the result therefore, the proceeding pending against the petitioner in the Patna Court is hereby quashed. The complainant may, if he is so advised, file a complaint in a proper court.