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Mahadeo Sahu and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All59; 54Ind.Cas.408
AppellantMahadeo Sahu and ors.
RespondentEmperor
Excerpt:
criminal procedure code act v of 1898, section 476 - penal code (act xlv of 1860), section 114, 421--insolvency proceedings--fraudulent transfer by insolvent--district magistrate, direction by, to prosecute insolvent under section 421, penal code--order, legality of. - .....to law among the creditors of ramanand and naurangi, are offences under section 421, indian penal code, not more than three of these offences committed within one year can be tried at one trial. to simplify the case one transfer might be tried at one time. the strongest case is perhaps that of the transfer of july 11th 1911, whereby the shares in some seven villages were said to be transferred to jagrup and his brother mahadeo for rs. 2,900, of which rs. 800 was due under a prior book debt and rs. 2,100 was paid before the sub-registrar. ramanand and naurangi made the transfer, and jagrup and mahadeo, to whom it was made, should be prosecuted for abetment.' it goes on to give various other directions as to what evidence should be called and winds up as follows: i have the honour.....
Judgment:

Ryves, J.

1. The circumstances of this case are somewhat peculiar. Two persons Ramanand and Nauransi Lal applied in the Court of the District Judge of Gorakhpur to be declared insolvents as long ago as the 8th of October 1913 and were declared insolvents on the 26th of August 1914. A Receiver was appointed, who reported on the 31st of March 1915 that certain property, among others, in the possession of Mahadev and Jagrup under the sale deed of the 1st of July 1911 was really the property of the insolvents and had been fraudulently transferred in order to defeat their creditors. The then District Judge of Gorakhpur found that the transfer was a fraudulent one, and this order was confirmed by the High Court on the 15th of May 1917 and the property was then sold by the Receiver. Some time in May 1919 it appears that the file of the insolvency case was before the present District Judge of Gorakhpur. There is a docket on the record before me, dated the 31st of May 1919, which was sent by the District Judge of Gorakhpur to the District Magistrate of Gorakhpur. It starts: 'Sir, I have the honour to bring to your notice certain facts against Ramanand, son of Padarath, and Naurangi, son of Sheo Dihal, of Dhibra Police Station, Belgbat, two insolvents, and Bindeshri Sahu, son of Nepal Sahu of Maghar, Ram Charan Sahu, son of Gajadbar of Manikpore, Police Station Rawanpar, District Azimgarh, Jagrup Sahu, fon of Sheodihal, Mahadeo Sahu, son of Sheodihal, residents of Maghar, Police Station Khalilabad, in Basti District, transferees from them.' It goes en to state various facts which apparently had come to the knowledge of the District Judge from the records of the insolvency case but which were not of course known to him personally, and it then sets out several transfers which appeared to him from the record to have been fraudulent It goes on to say: These fraudulent transfers, made with the intention of preventing the distribution of property according to law among the creditors of Ramanand and Naurangi, are offences under Section 421, Indian Penal Code, Not more than three of these offences committed within one year can be tried at one trial. To simplify the case one transfer might be tried at one time. The strongest case is perhaps that of the transfer of July 11th 1911, whereby the shares in some seven villages were said to be transferred to Jagrup and his brother Mahadeo for Rs. 2,900, of which Rs. 800 was due under a prior book debt and Rs. 2,100 was paid before the Sub-Registrar. Ramanand and Naurangi made the transfer, and Jagrup and Mahadeo, to whom it was made, should be prosecuted for abetment.' It goes on to give various other directions as to what evidence should be called and winds up as follows: I have the honour to ask you to take proceedings against the persons named by me on charges under Section 421, Indian Penal Code, and Section 421/114, Indian Penal Code. The case is one of importance in the interest of commercial morality and should be enquired into or tried by an experienced Magistrate.' It appears that on receipt of this document the learned District Magistrate transferred the case to the Court of the Joint Magistrate, Mr. York, who issued summons to the accused. They applied to this Court to quash the criminal proceedings and their application was admitted by a learned Judge of this Court, who ordered all proceedings to stay meanwhile. I do not understand under what section of the Criminal Procedure Code the District Judge of Gorakhpur made this report. It cannot have been made under the provisions of Section 476 of the Code of Criminal Procedure, because that section does not apply to a charge under Section 421, Indian Penal Code. Inasmuch as the learned District Magistrate seems to have regarded this as an order under Section 476, I think all proceedings upto date must be quashed. But that does not end the matter. I am not prepared to hold that this document is not a complaint' within the wide definition of the term in Section 4 of the Criminal Procedure Code. In this view of the matter it will be open to the District Magistrate to take such further action as he may be advised after having followed the procedure Laid down in Chapter XVI of the Code. Let the papers be returned to the District Magistrate with a copy of my order.


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