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W.A. Beardsell and Co. (by their Agent, W.H.H. Johnstore) Vs. Nilgiri Abdul Gunni Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in(1914)ILR37Mad107
AppellantW.A. Beardsell and Co. (by their Agent, W.H.H. Johnstore)
RespondentNilgiri Abdul Gunni Sahib and anr.
Cases ReferredNoor Mahomed v. Kaikhosru
Excerpt:
criminal procedure code (act v of 1898), section 195(1)(c) - sanction to prosecute--insolvency proceedings. - .....taking it that all the offences charged were complete when the claim was made before the official assignee still at the time both first and second accused were parties to the insolvency proceedings in the high court initiated by a petition of the complainant's. the order of adjudication does not transfer the proceeding from the court to the official assignee.2. so that even if it is necessary under section 195(1), (c), of the code of criminal procedure that the proceeding should have commenced before the offence is complete, that requirement is fulfilled in this case. the offence of forgery is complete, it may be said, as soon as the false document is made, and in that view it cannot be right to restrict the scope of section 195 of the code of criminal procedure to cases in.....
Judgment:

Miller, J.

1. I think the Magistrate was right in holding that the sanction of the Insolvency Commissioner is necessary. Taking it that all the offences charged were complete when the claim was made before the Official Assignee still at the time both first and second accused were parties to the Insolvency Proceedings in the High Court initiated by a petition of the complainant's. The order of adjudication does not transfer the proceeding from the Court to the Official Assignee.

2. So that even if it is necessary under Section 195(1), (c), of the Code of Criminal Procedure that the proceeding should have commenced before the offence is complete, that requirement is fulfilled in this case. The offence of forgery is complete, it may be said, as soon as the false document is made, and in that view it cannot be right to restrict the scope of Section 195 of the Code of Criminal Procedure to cases in which the commencement of the 'proceeding' precedes the completion of the offence for the section in that case would not apply to a great many cases to which it was obviously intended to apply and which are covered by its language.

3. As I understand the case the view suggested on behalf of the petitioners is that in order that Section 195 of the Code of Criminal Procedure may apply the proceeding must have commenced before any action has been taken on, or use has been made of, the false document; but even accepting that view, which receives some support from Noor Mahomed v. Kaikhosru (1902) 4 Bow. L.R. 268 the Insolvency proceedings had been commenced before any action was taken on the documents alleged to be forged.

4. It was suggested by Dr. Swaminathan that if the production of the document before the Official Assignee is taken to be their production in the 'proceeding' then the Official Assignee must be considered to be the Court and his sanction, and not that of the Insolvency Court, is what is required. I do not think so. The Official Assignee does not become a Civil Court merely because he has a wide discretion in deciding on claims of persons alleging themselves to be creditors of the Insolvent, or because persons aggrieved by decisions of his, can appeal to the Court from those decisions, and the provisions of the Insolvency Act do not suggest that he ought to be considered a Court subordinate to 'the Court' which by Sections 3 and 6 of the Insolvency Act is the High Court or some officer appointed under Section 6 of the Insolvency Act.

5. The Insolvency proceeding, from the date of the petition which initiates it, is before the Court, and the Court controls and directs the actions of the Official Assignee and I think in these circumstances that it is the Court whose sanction is required and not the Official Assignee.

6. I do not say that the Magistrate is wrong in his view that the production of the document before the Insolvency Commissioner is sufficient to attract to the case the provisions of Section 195(1), (c), of the Code of Criminal Procedure. But in my view it is unnecessary to decide that point.

7. The petition is dismissed.


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