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Madan Mohan Sarkar Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal264
AppellantMadan Mohan Sarkar
RespondentEmperor
Excerpt:
- .....to appeal against an order of the district judge, sitting in insolvency, made under section 70, provincial insolvency act. the district judge has made a preliminary enquiry and consequent on that he has' made a complaint to the magistrate so that; the magistrate should deal with it under section 69 of the act. if there is any appeal against such an order, and i for my part am not prepared to say that there is, it seems to me that it must be under section 75, sub-section (3) of the act, and only by leave of either the district court or the high court. such leave has not been obtained. again, speaking for myself, i am of the opinion that a very strong case will be needed to justify the granting of such leave because it would be tantamount to stopping the proceedings under section 69 and.....
Judgment:

Derbyshire, C.J.

1. In my opinion this appeal is misconceived. It is really an attempt to appeal against an order of the District Judge, sitting in insolvency, made under Section 70, Provincial Insolvency Act. The District Judge has made a preliminary enquiry and consequent on that he has' made a complaint to the Magistrate so that; the Magistrate should deal with it under Section 69 of the Act. If there is any appeal against such an order, and I for my part am not prepared to say that there is, it seems to me that it must be under Section 75, Sub-section (3) of the Act, and only by leave of either the District Court or the High Court. Such leave has not been obtained. Again, speaking for myself, I am of the opinion that a very strong case will be needed to justify the granting of such leave because it would be tantamount to stopping the proceedings under Section 69 and Section 70 in limine and before the facts have been fully enquired into by a Magistrate. Such procedure would, in my view, be contrary to the policy of the Insolvency Acts in so far as they relate to offences against the insolvency laws. In my opinion this appeal must be dismissed.

B.K. Mukherjea, J.

2. I agree with my Lord the Chief Justice in holding that this appeal should be dismissed. The appeal is directed against an order purporting to be made by the District Judge of Bogra under Section 70, Provincial Insolvency Act, by which he made a complaint of a certain offence punishable under Section 69, Provincial Insolvency Act, to the Sub-divisional Magistrate of Bogra for necessary action. It appears that the appellant was adjudged an insolvent by an order of the Insolvency Court dated 18th April 1936. A receiver was appointed in due course and he made a report on 8th April 1937 making certain complaints against the insolvent on the ground that the latter, far from assisting the receiver in the administration of the estate, was putting obstacles in his way. Two specific allegations were contained in this report. One was that the receiver had served a registered notice upon the insolvent requiring him to do certain things with regard to his property but that the insolvent deliberately refused to accept the notice. In the second place, it was said that with a view to diminish the funds which are to be divided among his creditors the insolvent had made away with some portion of the assets. The District Judge, after hearing the insolvent and folding a preliminary enquiry under Section 70, Provincial Insolvency Act, made the complaint mentioned aforesaid and it is against this order that the present appeal has been directed.

3. I agree with my Lord the Chief Justice, in holding that the appeal is incompetent. Obviously it is not against an order passed under Section 69, Provincial Insolvency Act, and even if it were, there would be no appeal under the provisions of the Amending Act, 12 of 1927. The order was clearly one under Section 70, Provincial Insolvency Act, and it is not one of the orders specified in Schedule 1 to the Act, against which alone, appeals are competent under Section 75. Of course, the appellant could have prayed for and obtained leave under Clause (3) of Section 75, but this was not done, and no circumstances have been made out which would justify us in granting leave at this stage. Section 70 was introduced by the Legislature in the year 1927 and obviously the object was that the Insolvency Court should not itself try the offences which are specified in Section 69, Provincial Insolvency Act, but that these offences should be tried by Magistrates on complaints preferred by Insolvency Courts, on the lines similar to those contained in the Criminal Procedure Code. Mr. Dutt who appears for the appellant attempted to show that an appeal would lie under the provision of Section 476-B, Criminal P.C., But this contention, in my opinion, is manifestly untenable. Section 476-B cannot have any application to a case where the complaint was not made under Section 476, Criminal P.C., The language of Section 70 makes it perfectly clear that after a complaint has been made by the Insolvency Court to the Magistrate, the further proceedings should be regulated in the manner contemplated by the Criminal Procedure Code. If the proceedings end in a conviction obviously the accused would have a right of appeal as is provided for in the Criminal Procedure Code. Under these circumstances I agree that the appeal is incompetent and must be dismissed.


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