1. The petitioner, Akhoy Chand Begwani and his partners were adjudged insolvents by the District Judge on 26th September 1931, on the application of a creditor, and their properties vested in a Receiver appointed by him. On 2lst March 1932 they were ordered by the learned Judge to file the books of account of their businesses at Sherpur and Jhinai-gati but they failed to do so. On 25th April 1932, the learned Judge examined the petitioner and on the next day laid a complaint for his prosecution under Section 69 (a), Provincial Insolvency Act. On this complaint the petitioner was tried by a Deputy Magistrate who convicted him and sentenced him to undergo rigorous imprisonment for two months. He preferred an appeal which was heard and dismissed by the Additional Sessions Judge who held that the petitioner was liable not only under Clause (a) but also under Clause (b), Section 69 of the said Act. The charge on which the petitioner was tried was in these words:
That you, on or about the 26th day of September 1931 were adjudged an insolvent in the-Court of the District Judge of Mymensingh, and, were subsequently directed to produce your account books relating to the firm Akhoy Chand Prithiraj at Sherpur Town and Jhinaigati, P. Section Sherpur, but you concealed those account-books at Sherpur Town and Jhinaigati, and wilfully failed to perform the duties imposed upon, you by Section 22, Provincial Insolvency Act, 1920, viz., production of the books of account of the said firm between 26th September 1931 and 25th April 1932, and thereby committed an offence punishable under Section 69 (a), Provincial Insolvency Act, at Sherpur, Jhinaigati and Mymeu-singh and within my cognizance. And I hereby direct that you be tried on the said charge.
2. The first contention urged on behalf of the petitioner is that he never failed to perform any duties cast upon him by Section 22 of the Act. This argument is based upon two propositions: first that Section 22 does not apply to a creditor's petition; and second that it refers to a stage antecedent and not subsequent to an order of adjudication. The section, in my opinion, is badly worded. It is divisible into two parts: the first part saying that the debtor shall on the making of an order admitting the petition produce all books of account; and the second part saying that the debtor shall at any time thereafter, etc., etc., and shall do all such acts and things in relation to his property as may be required by the Court or the Receiver or as may be prescribed. The whole of the section, in its two parts, purports to enumerate the duties of a debtor. The first part of the section relates to one particular stage, namely, 'on the making of an order admitting the petition,' and the second part to all subsequent stages as the words at any time thereafter' plainly indicate. From the words 'order admitting the petition'-the same words having been used in some of the previous sections indiscriminately and without meaning any difference between an order made on a creditor's petition and an order made on a debtor's petition, the obvious interpretation of the same words as used in Section 22 would be to give it an application in res-pect of both classes of orders. But I am firmly of opinion that the Legislature could never have intended to make the first part of the section applicable to a case when an order has been made on a creditor's petition. To put such an interpretation would be to make the provision unworkable, for a debtor would hardly have knowledge of his creditor's petition being admitted until he is served with notice of the order admitting it and yet bis duty would arise on such order being made. Besides, such a procedure would mean that the debtor would be under an obligation to assist his creditor merely because the latter has succeeded in getting his petition admitted, and before he has established any right to have an inspection of his debtor's books of accounts. My opinion, therefore, is that though owing to the bad drafting of the section the first part of the section may seem to apply to both classes of orders; it was never intended to be applicable to the case of an order made on a creditor's petition. But I think the second part of the section applies to both classes of oases and to all stages of the proceedings that follow the order admitting the petition, leaving it to the Court or the Receiver to make the requisition at the appropriate stage.
3. There can be no question that the order that was made by the District Judge was made after the order of adjudication and so made at a proper stage. The use of the word 'debtor' and not the word 'insolvent,' does not, in my opinion, suggest that the section was meant to be operative only up to the order of adjudication. The expression 'generally do all such acts and things in relation to his property as may be required by the Court' is sufficiently wide to include the production of account books in respect of the business: see Ex parte Moir, In re Moir (1882) 21 Ch D 61. The second contention urged on behalf of the petitioner is that the charge was of an embarrassing nature. With this contention I do not agree. I think it may have said less, but what more it has said in excess of what was necessary was clearly for the petitioner's benefit and for that the petitioner can hardly complain. As a branch of this contention it has been urged that on a charge framed under Section 69(a) the Court cannot convict an accused under Section 69(b) as the judgment of the Additional Sessions Judge indicates he was prepared to do. In my opinion this contention is sound; the elements of the offences contemplated by the two clauses are not the same, and so there may be prejudice to the accused if such a procedure is adopted.
4. On the aforesaid two contentions, then my view is that the petitioner, in the present time, could only be convicted under Section 69(a), for failure to comply with the order of the Court to produce the account books and thereby failing to perform his duty which is cast upon him by the second part of Section 22. This leads us to consider the third contention of the petitioner, which relates to the merits of his defence. To deal with this contention one has to bear in mind the word 'wilfully' used in Section 69, Clause (a). To fulfil the requirements of this word it will have to be proved that the account books required to be produced were in the possession or power of the petitioner to produce. We have read the whole of the evidence on the record with care and have examined the bearing of the litigations that preceded the proceedings. We feel no hesitation in holding that the aforesaid element which the prosecution has to establish has not been proved. One of the important persons whose absence from the witness-box must affect the case for the prosecution is Dia Mull, who, in our opinion, should have been examined by them. The case has left in our minds an impression that the two parties are trying to get the better of each other through the medium of the Insolvency Court, and in our opinion, it is a matter of grave doubt as to which of the rival cases put forward by them is really true. We accordingly make the Rule absolute and set aside the conviction of and the sentence passed on the petitioner and order that he be discharged from bail.
S. K. Ghose, J.
5. I agree.