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Pinnamraju Rajamraju Vs. Potturi Tirupatiraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported inAIR1930Mad670; 126Ind.Cas.601
AppellantPinnamraju Rajamraju
RespondentPotturi Tirupatiraju and ors.
Cases ReferredMultan Chand Kanyalal v. Bank of Madras
Excerpt:
penal code (act (xlv of 1860), section 424 - concealment of property to avoid attachment--offence--civil procedure code (act v of 1908), order xxi, rule 43--attachment of cattle, mode of--actual seizure, whether necessary. - .....had attached one cow, a calf and a she-buffalo, the accused drove them away. the stationary sub-magistrate examined witnesses including p.w. no. 1 the court amin, p.w. no. 2 the decree holder and p. ws, nos. 3, 4 and 5 attestors to the attachment list. the stationary sub-magistrate discharged the accused under section 253(1) on the ground that the proceedings conducted by the amin p.w. no. 1 did not in law amount to actual attachment. he says:he (the amin) did not know what he had to do when he attached the property and so in the cross-examination he merely stated that he did nothing beyond notifying the distraint and writing up the attachment list. the omission was noticed by the counsel for the complainant and all the p.ws. nos. 2 to 4 that came afterwards on subsequent dates were.....
Judgment:
ORDER

Pandalai, J.

1. Four persons were accused before the Stationary Sub-Magistrate of Amalapur for offences under Sections 424 and 379, Indian Penal Code. The facts alleged against them were that in execution of a decree obtained, by P.W. No. 2, against one P. Subbaraju, since deceased, the decree-holder accompanied by an amin of the Munsif s Court P.W. No. 1 went to attach cattle belonging to the estate of the deceased, and that after the amin had attached one cow, a calf and a she-buffalo, the accused drove them away. The Stationary Sub-Magistrate examined witnesses including P.W. No. 1 the Court amin, P.W. No. 2 the decree holder and P. Ws, Nos. 3, 4 and 5 attestors to the attachment list. The Stationary Sub-Magistrate discharged the accused under Section 253(1) on the ground that the proceedings conducted by the amin P.W. No. 1 did not in law amount to actual attachment. He says:

He (the amin) did not know what he had to do when he attached the property and so in the cross-examination he merely stated that he did nothing beyond notifying the distraint and writing up the attachment list. The omission was noticed by the Counsel for the complainant and all the P.Ws. Nos. 2 to 4 that came afterwards on subsequent dates were prepared with an answer on this point. In the circumstances, I consider that there was no valid attachment at all and that any obstruction to such an illegal attachment was not certainly punishable by law.

2. The complainant applied to the District Magistrate of East Godaveri to revise the above order of discharge but that application was dismissed, the District Magistrate making the following observation:

It is quite clear from the evidence of P.W. No. 1, the amin, that he simply went to the place where the cattle were tied and proceeded to write up the distraint list and that the accused came up and removed the cattle from the place where they had been tied ail the time. The amin did not take actual possession of the cattle at any time. The lower Court rightly, in my opinion, held that there had been no legal distraint of the cattle and that the accused committed no offence in removing the cattle.

3. On this ground the District Magistrate dismissed the revision petition. The complainant has applied to this Court to set aside the discharge and order a fresh enquiry.

4. It is clear that the view of the lower Courts is wrong in two particulars. In the first place assuming that their view as to completed attachment was right, as to which I will speak presently, still there was the charge under Section 424 made in the complaint about which the Courts have said nothing. The offence under Section 424 is dishonesty removing any property and the dishonesty in such a case consists of the intention to avoid attachment for a debt. Therefore concealment by debtors themselves is an offence. Similarly taking away property by others with a view that it may not be attached, if done with a dishonest intention would fall under Section 424. The act of the accused would amount to an offence under that section and this matter has been ignored.

5. The more important point, however, is that the view of the lower Courts as to what constitutes a valid attachment is erroneous. They seem to have been of the opinion that in order to constitute a valid attachment of cattle, it is necessary actually to seize them or do something which would bring them into physical contact with the person attaching. Actual seizure of moveable property to be attached does not always require physical contact. Whether it is so required in any particular case, must be decided upon the particular facts. For instance, property in a locked room may be attached without even seeing the goods, by putting a lock upon the outer door: see Multan Chand Kanyalal v. Bank of Madras 27 M. 346. In England it has been held, that 'for an act of the Sheriff or his bailiff to constitute a seizure of goods, it is not necessary that there should be any physical contact with the goods seized, nor does such contact necessarily amount to seizure. An entry upon the premises on which the goods are situate together with an intimation of an intention to seize the goods, will amount to a valid seizure even where the premises are extensive and the property seized widely scattered. But some act must be done sufficient to intimate to the judgment-debtor or his servants that seizure has been made: see Halsbury's Laws of England, Vol. 14, page 54.'

6. In this case, the goods to be seized were cattle. It was not necessary to attach them that they should have been seized by their horns or even by their ropes. From the evidence it appears that they were already tied and secured so that they themselves could not run away of their own accord. All that was necessary to constitute the attachment was that the officer of the Court should go sufficiently near to them to explain to others that he has come to attach the property and to intimate his intention to do so. This the officer did do. What more in the circumstances he could have done or should have done to get possession of these cattle which were already tied up, it is difficult to see. The view of the lower Courts as to the ingredients of a valid attachment is erroneous. The discharge must be set aside and further enquiry into the charges ordered. The case will be sent back to the Stationary Sub-Magistrate, Amalapur, for disposal according to law.


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