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Hara Kumary Chowdhurani and ors. Vs. R. Savi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal314
AppellantHara Kumary Chowdhurani and ors.
RespondentR. Savi
Excerpt:
mortgage - dishonestly or fraudulently preventing debt being available for creditors--debt--attempt--application to withdraw money paid into court--penal code (act xlv of 1860), sections, 422 and 511. - .....for rs. 3,000 and arrangements were made to enable the debtor to release his property from the sale on payment of certain money within a certain time. he was unable to fulfil the terms of that agreement; so be appears to have gone to the petitioners, and it was settled with them that, on payment of rs. 1,000, the sale was to be set aside. the money was paid into court, and on the 15th september a petition was presented on behalf of the mortgagors, who are the persons now before us, to obtain this money. the court made no order on this petition, and on the 22nd of the same month the present proceedings were taken before the magistrate. the petitioners have been convicted, and their appeals to the sessions judge have been dismissed.2. we have now to consider, whether, on these facts,.....
Judgment:

Prinsep, J.

1. The three petitioners have been convicted of an attempt to commit an offence under Section 422 of the Indian Penal Code. It appears that their property is now under mortgage to the Land Mortgage Bank, and that under the terms of the agreement Messrs. Garth and Weatherall are managers of that estate under certain conditions in regard to payment of the monies realized by them. The petitioners have shown a disposition to be dissatisfied with that management, and are endeavouring to get rid of it, if possible. In execution of a decree obtained by Messrs. Garth and Weatherall, as managers of their estate, in a suit brought in the names of the mortgagors, a certain putni taluk was sold for Rs. 3,000 and arrangements were made to enable the debtor to release his property from the sale on payment of certain money within a certain time. He was unable to fulfil the terms of that agreement; so be appears to have gone to the petitioners, and it was settled with them that, on payment of Rs. 1,000, the sale was to be set aside. The money was paid into Court, and on the 15th September a petition was presented on behalf of the mortgagors, who are the persons now before us, to obtain this money. The Court made no order on this petition, and on the 22nd of the same month the present proceedings were taken before the Magistrate. The petitioners have been convicted, and their appeals to the Sessions Judge have been dismissed.

2. We have now to consider, whether, on these facts, the petitioners have been properly convicted of an attempt to commit an offence under Section 422 of the Indian Penal Code. We think that having regard to the relation between the petitioners and Messrs. Garth and Weatherall, at whose instance the proceedings were taken before the Magistrate, it cannot properly be said that an attempt to commit an offence under Section 422 has been made. The application to obtain payment of this money was publicly made. If the money had been paid to them it would no doubt have been a breach of the terms on which their mortgage had been renewed, for they then agreed that Messrs. Garth and Weatherall as managers were to have entire control of all monies due from the mortgaged properties, and this money represented the rent of an under-tenure. But still there was ample security for repayment of the debt, and a breach of this agreement would probably have enabled the mortgagees to take steps to release at once the full amount of the debt. The action of the peti- tioner seems to have been prompted by their desire to put an end to the management rather than, to act dishonestly or fraudulently, so as to make them liable to punishment under Section 422 of the Indian Penal Code. Any breach of theircontract would not, in our opinion, render them liable to penal consequences. This is not a case in which the creditors would really suffer, though no doubt the means of obtaining this money and applying it towards liquidation of the debt or the expenses of the management might be postponed or hindered. The conduct of the petitioners was, in our opinion, neither dishonest nor fraudulent within the meaning of those terms in the Penal Code. We also think that the agreement that they made with the under- tenure-holder did not endanger the estate, for, as represented on their behalf, as matters then stood, it was a bargain that was likely to be beneficial. The superior tenure belonging to the estate had been sold for arrears of rent, and, if that sale was a valid sale, the under tenure would become void, and it would therefore be without value, so as to realize anything by its sale. The validity of the sale of the superior tenure had been given against the petitioners, and it was doubtful whether the High Court, before which this matter was on appeal, would set aside this order. Consequently to obtain one thousand rupees for what might turn out to be of no value, and to leave the under tenure-holder to run the risk of the decision of the High Court being in his favour, would certainly be a good bargain. The interference of the petitioners and their application to obtain the money paid into Court by the under tenure-holder might have been breaches of their contract with the mortgagees, but such conduct cannot necessarily be regarded as dishonest or fraudulent so as to render them liable to punishment. Their attempt to get this money was more to put an end to the management than to prevent the money from being available for payment of their debt under the mortgage. In this respect the case does not seem dissimilar to that of Nobin Chunder Mudduck (1874) 22 W.R. Cr. 46. For these reasons we think that the petitioners have not been properly convicted. We accordingly set aside the conviction and sentence and direct the petitioners be released. The fine, if paid, will be refunded.


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