1. This is an appeal against the order made by Wadsworth, J., on an application presented by the appellant in the insolvency of one Abbeyamul Sowcar, asking for a declaration that the sum of Rs. 1,000 which had been paid by the insolvent as fine when he was convicted in C.C. No. 939 of 1933 on the file of the Court of the Presidency Magistrate, Madras, is money belonging to the applicant and that he is entitled to a refund of the same.
2. For reasons which we need not state in detail, the application underwent a number of adjournment and when it came on for hearing on 24th February, 1936, the applicant was not able to be present to give evidence. The record however shows that as part of the evidence which he proposed to adduce, a pass book of the applicant relating to his account with the Indore Bank had been produced in terms of a consent order passed by Mockett, J., to show that at or about the relevant time the applicant withdrew the sum of Rs. 1,000 from his own account with the Indore Bank. This apparently was intended to answer the allegation in the Official Assignee's report that the applicant was not in a position to find Rs. 1,000 himself and that the amount must have been paid out of the insolvent's monies. We may here mention that Abbeyamul Sowcar was adjudged insolvent on 1st February, 1934, that he was convicted in the Magistrate's Court on the 9th April, 1934, that the fine of Rs. 1,000 imposed upon him was paid on 14th April, 1934, and the sentence was revised by this Court on appeal on 11th September, 1934.
3. The applicant relies on the fact that the receipt granted by the Magistrate at the time of the payment of the fine states that the money was paid on behalf of the accused by the applicant. Wadsworth, J., had held that the onus prima facie lies upon the applicant to prove that the money belongs to him and as there is no evidence to establish the fact, the application must fail. Without adopting the same formula, the same result would nevertheless be reached by another course of reasoning as well. Assuming for the sake of argument that this sum of Rs. 1,000 was drawn by the applicant from his own account in the Indore Bank it would not follow therefrom that the applicant is now entitled to this amount. At the time when it was paid into the Criminal Court in payment of the fine imposed on the accused the money must in law be deemed to have become the property of the accused because title thereto must pass to the Crown. There is no provision in the Criminal Procedure Code that on reversal of the sentence the Crown must return the amount to anybody other than the accused, even if the amount had been paid by such other person. We think the proper assumption to make in such cases is that at the time of the payment of the fine all parties agreed that the money might be treated as the property of the accused. In this view any proof by the appellant that he found the money in the first instance will not suffice to entitle him to get it back. His right thereafter will be only against the insolvent's estate; and whether he will be entitled to claim it back in whole or in part will depend on whether he made a present of it to a relative in trouble or whether he merely lent it and if so, on what terms. These are matters which cannot be taken to be proved either by the receipt granted by the Magistrate or by the production of the Indore Bank pass book. The insolvent might have been examined as a witness on behalf of the applicant but that course has not been adopted.
4. Mr. Raghava Rao requested us to give his client an opportunity to examine himself and to adduce other evidence in support of the application; but the record shows that more than one adjournment had been obtained in the lower Court and on one occasion the application was even dismissed for default and subsequently restored. We quite sympathise with the applicant, who has to come down all the way from Indore for the purpose of giving evidence in this case. That is perhaps the very reason why he did not think it worth while. In these circumstances we are not prepared to interfere with the order of our learned brother refusing to grant any further adjournment in the matter; and on the record as it stands, his order is right. This appeal fails and is dismissed with costs of the Official Assignee.