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Krishna Lal Dhar Administrator to the Estate of the Late Mohendra Nath Dhar Vs. Profulla Kumar Dhar on Behalf of Himself and His Brother Probodh Kumar Dhar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.791
AppellantKrishna Lal Dhar Administrator to the Estate of the Late Mohendra Nath Dhar
RespondentProfulla Kumar Dhar on Behalf of Himself and His Brother Probodh Kumar Dhar
Excerpt:
penal code (act xlv of 1860), section 403 - criminal breach of trust--administrator, whether can be proceeded against without sanction of court--accounts passed by court--administrator, liability of. - .....complaint against the-petitioner under section 406, indian penal code, on the allegation that the accounts filed by the petitioner in the high court contained false items and numerous fraudulent entries out of which three were selected by the complainant. on the 25th march 20 the complainant made a further petition alleging that, on further enquiry, he had found out other instances of criminal breach of trust by the petitioner as administrator.2. the petitioner submitted a petition to the magistrate praying that the proceedings might be quashed on the ground inter alia that he having rendered accounts to the high court, the proper court for making an enquiry as to th3 falsity or otherwise of the same, which covered a period of about 14 year, was the high court, and that the criminal.....
Judgment:

1. The question for consideration in this case is, whether the Criminal Court can take cognizance of an alleged offence under Section 406 of the Indian Penal Code against an Administrator appointed under the Probate Act, without the sanction of the Civil Court, when such Administrator he submitted his accounts to the Court,

2. It appears that the petitioner was appointed Administrator to the estate of his deceased brother by the High Court in its original jurisdiction on the 30th August 1905, the administration being limited until either of the two minor sons of the deceased, on attaining majority, would apply for a grant of Letters of Administration to himself, The elder minor attained his majority in 1913 and upon his application the High Court in its testamentary and antedate jurisdiction, ordered the petitioner to file an inventory and account of the estate and effects of the deceased. Subsequently, on his failure to comply the petitioner was arrested by an order of the High Court in September 1917 and he filed the accounts of the estate and effects of the deceased and an inventory of the properties of the deceased which came into his hands, and it is alleged that he was thereupon discharged. On the 19th January 1920, Prafulla kumar (the younger brother) lodged a complaint against the-petitioner under Section 406, Indian Penal Code, on the allegation that the accounts filed by the petitioner in the High Court contained false items and numerous fraudulent entries out of which three were selected by the complainant. On the 25th March 20 the complainant made a further petition alleging that, on further enquiry, he had found out other instances of criminal breach of trust by the petitioner as Administrator.

2. The petitioner submitted a petition to the Magistrate praying that the proceedings might be quashed on the ground inter alia that he having rendered accounts to the High Court, the proper Court for making an enquiry as to th3 falsity or otherwise of the same, which covered a period of about 14 year, was the High Court, and that the Criminal Court was incompetent to go into such accounts. The petition was, however, rejected by the Magistrate and the petitioner thereupon moved this Court and obtained this Rule.

3. It is contended on behalf of the petitioner that the prosecution is based upon the inventory and accounts filed by the petitioner in the High Court and the items in respect of which he has been charged in the Criminal Court being included in the accounts and inventory filed, the Criminal Court cannot entertain the complaint, at any rate, without a carnation under Section 195 of the Criminal Procedure Code. Reliance is place upon the provisions of Section 98 of the Probate Act. That section provides for filing of inventory and account by an Executor or Administrator, and Sub-sections (3) and (4) of that section lay down:

(3) If an Executor or Administrator on being required by the Court to exhibit an inventory or account under this section intentionally omits to empty with the requisition he shall be deemed to have committed an offence under Section 176 of the Indian Penal Code.

(4) The exhibition of an intentionally false inventory or account under this section shall be deemed to be an offense under Section 193 of that Code.

4. Sub-section (3) has no bearing upon the present case. It provides that the non-compliance with the requisition to exhibit inventory and accounts would constitute an offence under Section 1 6, Indian Penal Code. Sub-section (4) lays down that the exhibition of an intentionally false inventory or account shall be deemed to be an offence under section it of the Code and, no doubt, the High Court, in its testamentary and interstate jurisdiction, if it were satisfied that a false inventory or accounts had been exhibited, might have granted sanction to prosecute no objection, however, appears to have been taken to the inventory or accounts in the High Court and the complainant did not apply to the High Court for sanction. The question, therefore, is whether, in these circumstance, the Criminal Court is competent to entertain a complaint without sanction in respect of certain items which were included in the accounts filed in the High Court.

5. Now, the mere fact that accounts have been filed in the Probate Court or even the fact that the accounts have been passed by the Court, does not absolve the Administrator from his liability for any particular sums of money which may have been misappropriated by him and he may be sued in the ordinary way for such sums, Same the case of Kish chandra Achuya v. csmond Leeby 14 Ind. Cas. 4 : 39 C. 587 : 16 C.W.N. 516 the case of an Administrator pendent litle whose accounts had been paseed by the Court. And if a suit can be maintained against an Administrator for sums misappropriated by him, even though his accounts might have been passed by the Court, it is difficult to see why he can-not be criminally prosecuted without the sanction of the Court.

6. The complaint, however, made against him is one for criminal breach of trust. The estate was entrusted to the petitioner not by the complainant, nor by are one through whom he claims, but by the Court in its interstate jurisdiction. In a recent case Santck ckand v, Sugan chand 46 Ind. Cas. 836 : 46 C. 432 : 22 C.W.N. 910 : 28 C.L.J. 115 : 19 Cr. L.J. 820 chitty and Beaohoroft, JJ., quashed the proceeding against the Receiver under Section 406, on the ground (among others) that it was the Court and not the complainant who entrusted the goods to the accused. A charge of criminal breach of trust, therefore, cannot, under the circumstances, be maintained against the petitioner except with the sanction of the Court which appointed him Administrator. The present proceedings under Section 406 against him must accordingly be quashed, and we direct accordingly.


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