(1) This is an application under Art. 134 (1) (c) of the Constitution, read with Order 21, Rule 2, of the Supreme Court Rules, for grant of a certificate of fitness for appeal to the Supreme Court from the judgment, dated February 23, 1966, of a Division Bench consisting of Capoor and Grover Jj, in Criminal Revisions Nos. 355-D and 387-D of 1965. Today the learned counsel for the applicants has moved antoher application seeking same relief in the alternative under Article 133 of the Constitution.
(2) There was a criminal case against respondent 2. H.K. Gupta alias Natwar Lal, for having cheated various persons, including respondent 1, Dr. Gurbax Singh, and having thus relieved them of considerable amounts of money. He was convicted in that case. After his conviction, respondent 1 applied for payment of Rs.1,17,000 out of the amount or amounts recovered from respondent 2. This application was under Section 517 of the Code of Criminal Procedure. It was rejected by the trial Court. Against the order of the trial Court, there was a revision application by Respondent No. 1 and also by applicant 1, Official Receiver, Indore. The Official Receiver came in because of respondent 2 having been adjudged an insolvent and he having been appointed to manage the estate of respondent 2 at the instance of the latter's creditors.
Those revision applications were disposed of by the judgment of the learned Judges in regard to which certificate of fitness for leave to appeal to the Supreme Court is sought. The learned Judges in regard to which certificate of fitness for leave to appeal to the Supreme Court is sought. The learned Judges found it as a fact that a sum of Rs.1,17,000 belonging to respondent 1 had been obtained from him by cheating by respondent 2 and, as it has been found, so under Section 517 of the Code of Criminal Procedure the amount be restored to respondent 1 on condition that he will take out the amount only if he furnishes a bank guarantee to the satisfaction of the learned trial Judge for re-depositing it in the trial Court in the event of any orders of a competent court being made, a compliance with which may necessitate that court, (sic). So the revision application of respondent 1 was accepted. The revision application of applicant 1 was dismissed.
(3) Obviously, the finding of the learned Judges that Rs. 1,17,000 were obtained by cheating from respondent 1 by respondent 2 and the amount has been traced is one of the fact and no occasion arises for grant of certificate of fitness for appeal to the Supreme Court against the judgment of the Division bench, for apparently no question of law is involved. It is this which has probably led to the learned counsel for the applicants to make the new application today under Article 133 of the Constitution.
(4) The learned counsel for the applicants first contends that proceedings under Section 517 of the Code of Criminal Procedure are civil proceedings within the meaning of Article 133 of the Constitution and in this respect he relies upon Mahanta Singh v. State and Kapur Singh v. Union of India . The first of these two cases was case under Section 517 of the Code of Criminal Procedure and Soni J., held that proceedings under that Section are really in the nature of proceedings analogous to civil proceedings, in which the question to be determined is to whom the possession of certain articles should be given. Those proceedings are proceedings which the guilt of the accused person is nto to be determined , but are proceedings which take place after the inquiry or trial in any criminal Court is over. In this respect the learned Judge relied upon Pohlu v. Emperor Air 1943 Lah 312 but that case does nto decide this point.
In any event, the learned Judge has nto held that proceedings under Section 517 of the Code of Criminal Procedure are civil proceedings. All that the learned Judge has observed is that those proceedings are analogous to civil proceedings, which is obviously nto the same thing as saying that those proceedings are civil proceedings. The second case does nto deal with the matter of Section 517 of the Code of Criminal Procedure at all. The learned counsel for the applicants points out that the learned Judges in that case while considering the nature of civil proceedings held that `what a civil proceeding is may be defined as a judicial process to enforce a right and includes any remedy employed to vindicate that right. It covers every step in an action and is equivalent to an action. It is a prescribed course of action for enforcing a legal action and embraces the requisite steps by which judicial action is invoked'.
As I read these observations, I do nto find that proceedings under Section 517 of the Code of Criminal Procedure are covered by the same. This is one ground on which the application of the applicants under Article 133 of the Constitution cannto succeed. Again under that Article the judgment has to be the final judgment from which a certificate of fitness for appeal to the Supreme Court can be allowed, and what has been decided by the Division Bench has been delivery of the money to respondent 1 subject to order of a competent Court toherwise and to ensure compliance with that he has been made to furnish bank guarantee. In toher words, the judgment of the learned Judge in this respect is nto final and does nto determine the rights of the parties to the money finally. On this ground also Article 133 is nto attracted. The application presented on behalf of the applicants by their learned counsel today thereforee fails and is dismissed.
(5) There remains the original application under Article 134 (1) (c) of the Constitution and there also it has to be certified whether the case is a fit one for appeal to the Supreme Court. The learned counsel for the applicants has urged four grounds, which he considers raise questions of law, justifying the grant of such a certificate to the applicants. The first ground is that the learned Judges have relied upon certain reported cases under section 517 of the Code of Criminal Procedure which cases concern claims to property between Complainant and an accused person, whereas in the present case the dispute is in regard to claims of the complainant (respondent 1), the accused (respondent 2) and a stranger the Official Receiver, applicant 1. So the learned counsel contends that the cases upon which the learned Judges have relied are distinguishable so far as the facts of the present case are concerned.
It is apparent that there is no substantial difference as the learned counsel has tried to make out. The Official Receiver though looking after the interests of the creditors of respondent 2, still represents his estate in insolvency, and for the matter of Section 517 of the Code of Criminal Procedure he has to be bricketed with respondent 2 as against respondent 1. The learned counsel then urges that under Section 517 of the Code of Criminal Procedure the identity of the property in question must be established and it is the very property, subject matter of the criminal prosecution that must be given back and that in the present case the very money that was obtained by cheating from respondent 1 by respondent 2 has nto been and could nto be returned to respondent 1.
This obviously is a mistaken approach for in the case of money, it is the actual amounts that is material and nto necessarily the very same currency-ntoes. However, in this case the learned Judges have also come to the conclusion that the money, taken away by cheating from respondent 1 by respondent 2, was placed at a particular place its identity is satisfactorily established. On this conclusion this argument cannto possibly prevail.
(6) The next argument in this respect by the learned counsel for the applicants is that the ttoal amount recovered from respondent 2 in the treasury was Rs.3,09,600, out of which a sum of Rs.1,17,000/- was ordered to be paid by a Magistrate of the First Class to the respondent 1 by an order of September 2, 1955. The order was made before the conclusion of the trial. In a revision by applicant 2, S.G. Tambe, reported as S.G. Tambe v. State of Delhi that order was set aside, and obviously for the simple reason that by that time the criminal trial had nto concluded, and jurisdiction under Section 517 of the Code of Criminal Procedure did nto arise. All the same, the learned counsel for the applicants relies upon this observation of the learned Chief Justice in that case -
'The Provincial Insolvency Act has been designed to secure that the Insolvency Court should be at liberty to seize the debtor's property and to make it available for equitable distribution among the creditors. The property of the insolvent in his actual or constructive possession at the time of the filing of the petition of insolvency is presumed to be in the custody of the Insolvency Court from the filing of the petition and the insolvency Court alone has power to hear and determine all conflicting claims in regard to title, possession and control of the property. The Insolvency Court exercises jurisdiction over the assets of the insolvent nto because the insolvent has title in the property but because the insolvent has title in the property and as to the distribution of it among the parties are binding upon all persons and on every Court. In view of this exposition of the law there can be little doubt that the Insolvency Court at Indore had power to restrain the Resident Magistrate Delhi from parting with the money which had been recovered from the possession of the accused.'
He contends that only the Insolvency Court had jurisdiction over the money because of the adjudication of respondent 2 as insolvent and the appointment of the Official Receiver of his estate. He then says that the matter was taken to the Supreme Court and the special leave application (No. 432 of 1956) of respondent 1 was dismissed on September 17, 1956. At the same time, and after that, applicant 1, the Official Receiver, applied to the Magistrate having jurisdiction for payment of the amount to him and, his application having been dismissed, he came in revision to this Court seeking relief under section 517 of the Code of Criminal Procedure. The revision application was No. 133-D of 1957 and it was dismissed by the learned Chief Justice on May 9, 1958, again on the ground that by that time the trial against respondent 2 had nto concluded and the question of making an order with regard to the delivery of the amount to any party interested or entitled had nto yet arisen.
Applicant 1 took the matter in special leave to the Supreme Court and it has been admitted at the Bar that he failed there. In the Insolvency Court respondent 1, in 1958, made an application under s. 4 of the Provincial Insolvency Act claiming the amount from the estate or respondent 2. It has been stated at the Bar that till August, 14, 1961 respondent 1 led evidence but on that date he absented himself and, as his counsel said that he had no instructions, so the Insolvency Judge dismissal that application of respondent 1 under Section 4 of the Provincial Insolvency Act in default. The learned counsel for the applicants contends that the dismissal of that application was under O. 17 Rule 3 of the Code of Civil Procedure and it thus became final, with the result that in any subsequent proceedings it must operate as rest judicata.
But the learned counsel has had to agree that the manner of his argument is that that order of dismissal in default bars any proceedings under Section 517 of the Code of Criminal Procedure. It is apparent from that section that there is no such bar against proceedings under that Section. Leaving that aside, a dismissal to be under Rule 3 of Order 17 and the decision will nto be final and will nto operate as rest judicata. It was open to the Insolvency Judge to dismiss the application of respondent 1 under Section 4 of the Provincial Insolvency Act on merits, but this he did nto do and so his order cannto be read as one under Rule 3, and is obviously under R. 2 of Order 17. No doubt the learned Judges do nto say as much in their judgment, but what they have said amounts to the same because they have come to the conclusion that the order of dismissal for default was nto a final order and did nto operate as rest judicata. So this argument does nto raise any substantial question of law either.
(7) The last argument of the learned counsel for the applicants is that in the insolvency proceedings before the Insolvency Judge at Indore the amount of money in question in these proceedings was attached on June 23, 1955, during the pendency of the insolvency petition. Respondent 2 was adjudged insolvent on May 4, 1957. He points out that the property vested in the Official Receiver immediately as he was appointed. Similarly he points out that the money was also attached on June 28, 1955, in execution proceedings before a Subordinate Judge at Patna. He says that the first type of proceedings, in any case, are proceedings in rem and the order made in those proceedings being an order in rem is operative as against the whole world. But the learned Judges have negatived this argument after referring to the approach of applicant 1 to the Supreme Court where he failed to get relief under Section 517 of the Code of Criminal Procedure.
The learned counsel for the applicants refers to S.G. Tambe's case and the passage from the judgment of the learned Chief Justice as reproduced above and contends that in view of the observations there, proceedings under Section 517 of the Code of Criminal Procedure are barred and this raises a substantial question of law. This, however, may have raised any such question if the Official Receiver applicant 1, had nto already been up to the Supreme Court and failed in his claim, because if his claim was good he would have succeeded at the earlier stage as Section 517 of the Code of Criminal Procedure ought nto to stand in his way on this argument, and this is the view which the learned Judges have taken in their judgment. So that this also does nto raise any substantial question of law.
(8) No toher matter has been argued. The original application also fails and is dismissed but there is no order in regard to costs.
(9) Petition dismissed.