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Joseph Perry Vs. the Official Assignee of Calcutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in56Ind.Cas.778
AppellantJoseph Perry
RespondentThe Official Assignee of Calcutta
Cases ReferredR. v. Ingham
Excerpt:
presidency towns insolvency act (iii of 1909), sections 36, 103a(1), 104 - criminal charge against insolvent--offence, whether can be committed both before and after adjudication--books of account, concealment or removal of--destruction, whether refers only to destruction before the official assignee takes possession--charge, error on irregularity in, effect of--notice of charge, sufficiency of--intention--appellate court, whether can arrive at finding as to intention--examination of insolvent in insolvency proceeding, whether admissible in evidence in criminal proceeding--admission--evidence act (i of 1872), sections 17, 132--voluntary statement--examination of insolvent under section 36 of presidency towns insolvency act, whether illegal--practice--evidence, weight of, admissibility.....john woodroffe, j.1. the insolvent is charged under section 103a (1) of the presidency towns insolvency act (iii of 1909) with four offenses. i dealnow only with the charges upon which he has been convicted and which are the subject of appeal. these charges are (1) that the appellant on the 5th march 1919, fraudulently and with intent to conceal the state of his affairs and to defeat the objects of the act, purposely withheld the production of his diary for the years 1918 and 1919 and his stock or invoice book, (2) that he, fraudulently with intent to conceal the state of his affairs and to defeat the objects of the said act on the 7th march wilfully prevented the production of pages 5--22 of his stock book by removing or causing to be removed the said pages from the said book, the said.....
Judgment:

John Woodroffe, J.

1. The insolvent is charged under Section 103A (1) of the Presidency Towns Insolvency Act (III of 1909) with four offenses. I dealnow only with the charges upon which he has been convicted and which are the subject of appeal. These charges are (1) that the appellant on the 5th March 1919, fraudulently and with intent to conceal the state of his affairs and to defeat the objects of the Act, purposely withheld the production of his diary for the years 1918 and 1919 and his stock or invoice book, (2) that he, fraudulently with intent to conceal the state of his affairs and to defeat the objects of the said Act on the 7th March wilfully prevented the production of pages 5--22 of his stock book by removing or causing to be removed the said pages from the said book, the said pages and book relating to such of his affairs as are subject to investigation under the said Act; (3) that he, fraudulently and with intent to conceal the state of his affairs and to defeat the objects of the said Act, on the 7th March destroyed his said stock book by removing or causing to be removed therefrom the said pages relating to such of his affairs as are subject to investigation; and lastly (4) that he fraudulently with intent to conceal the state of his affairs and to defeat the objects of the said Act, on the 7th March 1913 wilfully prevented the production of his diary for 1918 relating to such of his affairs as are subject to investigation under the said Act.

2. A number of objections have been raised as regards the form and nature of these charges and to the formal findings thereon.

3. It was argued that Section 103 does not contain words as the Provincial Act does (Section 43) shewing that the offences there mentioned may be committed before or after the adjudication. I may say at once that I thick there is no substance in this point. But then it is said that the books the subject of charges (2) and (4) were produced and taken possession of by the Official Assignee on the 6th March and, therefore, it cannot be said that the insolvent prevented their production. The actual prevention is said to have been effected by removing the said pages of the stock book and, apparently, stealing the diary on the following day, the 7th March, at the Official Assignee's office after possession made over to the Official Assignee. Charge (3) is also, it is said, bad because the destruction there mentioned is a form of prevention or withholding, the words being ' destroyed or otherwise wilfully prevented'. It is, therefore, said that the destruction referred to in the section is destruction before the document has been produced before the Official Assignee and not the alleged destruction (as is here said to have taken place) in the Official Assignee's office after he had taken possession of the books. It is said that these acts may constitute the offences of mischief and theft under the Penal Code but are not specific insolvency offences. If the books were in fact produced having been taken possession of by the Official Asignee, it cannot, it is urged, be said that they were withheld from the Official Assignee or that their production was wilfully prevented. I am not prepared to uphold this construction of the section. In this case, it is to be observed there was an alleged withholding on the 5th March and the books were never produced by the insolvent but were seized upon on search by the Official Assignee. It would not, I think be reasonable to hold that if books were 'withheld on the 5th, and were taken possession of by the Assignee on the 6th at a search and were made away with by the insolvent* in the office of the Official Assignee before the latter even saw them, that no offense was committed under the Act. Moreover, objections which may have some force as regards the word 'Withhold' are without them as regards the word 'Destroy.'

4. It was then argued that charges (1) and (3) were not in accordance with the notice and it has been held by Jenkins, C.J., and myself in Lucas v. Official Assignee of Bengal 56 Ind. Cas. 577 : 24 C.W.N. 418 : 21 Cr.L.J. 481 (Appeal 20A of 1914, decided on 9th June 1914) that a charge not framed in pursuance of the notice cannot be maintained. We must, however, I think, read this statement, if not actually subject to the provisions of Section 537 of the Code, then subject to the principle which is embodied in that section, namely, that no error or irregularity in a charge will call for a reversal of an order unless it in fact has occasioned a failure of justice, and in determining whether this is so the Court shall have regard to the fact whether the objection could, and should, have been raised at an earlier stage of the proceedings.

5. No objection was taken to any of the charges at the trial. It cannot be contended reasonably that we should not act on a principle governing the trial of oases in the criminal jurisdiction proper. Here it is objected that the notice as regards the first charge runs ' Wilfully withheld ' whilst the charge runs ' Purposely withheld.' It is obvious that a trivality of this kind does not count. 'Wilfully' and' Purposely' have the same or approximately the same sense. This objection fails.

6. It was at first objected that the notice states the intention alternatively by the word ' Or ' and the charge cumulatively by the word ' And.' This objection refers to several of the charges, but there is no substance in it and it was subsequently withdrawn. If an accused receives notice that the prosecution may seek to prove against him either of two alternative intentions he cannot, as he must be ready to meet a charge in respect to both, be prejudiced by a charge of having had both intentions. The intentions mentioned in the Act are 'to conceal the state of the insolvent's affairs' or 'to defeat the objects of the Act.' Concealing is doubtless a form of defeating the object of the Act and, therefore, the second intention must refer to other modes of defeating the Act. There is nothing to prevent an accused having had both intentions. He might wish to conceal the state of his affairs and also have some other object within the definition of the second intention. If it were the fact that the allegation of the second intention called for particulars, we must take it there was no need for them here, as they were not asked for and no objection was taken.

7. The objection, therefore, that the charges are not in conformity with the notice is not substantiated.

8. But then a more serious objection is taken, it being said that no notice was given as regards charges (2) and (4). I think it is generally necessary that the insolvent should have notice of the charge which it is proposed to make against him. The notice does not contain anything about preventing the production of the stock book which is the subject of the 2nd charge and the reference to the diary in the notice (clause G) runs 'surreptitiously and dishonestly removed or caused to be removed from the custody of the Official Assignee your diary for 1918.' The terms of this offence are not those mentioned in Section 103, though there is a reference to removal in Section 43 of the Provincial Insolvency Act, but removing a document is a mode of preventing its production and I think, therefore, that the notice was sufficient. As regards the second charge as there was no notice at all, I should have been disposed to hold that it was bad were it not that no objection was taken to any of the charges and the accused could not have been prejudiced, for the act charged by charge 2 is practically the offence charged in charge 3 in different language, and of this latter charge the insolvent bad full notice.

9. It was then argued on the strength of the decision in Lucas v. Official Assignee of Bengal (1) that the charges (2) and (3) are inconsistent or that at any rate the prosecution must state on which charge they ask a conviction and that there cannot be a conviction on both charges. For the case cited holds that to establish that books are purposely withheld it must be shown that they exist, for preventing presupposes existence. It is to be observed that the act charged in charge (2) is the same act as is charged in charge (3), for the prevention of production is by removing the pages 5--22 and the destruction is by removing the same pages and the acts charged took place at one and the same time and were one alleged event. I am somewhat doubtful, therefore, whether the accused could be convicted and sentenced under both charges (2) and (3). It is not necessary, however, to decide the point, because Mr. Gregory has said that in the event of there being any doubt in the matter he would elect to proceed under charge 3. The point, moreover, has no practical interest because if the insolvent is acquitted under charge (2) he must be convicted under the circumstances of this case under charge (3).

10. The result then is that the charges stand except the second which, to avoid an unnecessary discussion, is withdrawn because a conviction on charge (3) would be sufficient and an acquittal on that charge carries with it an acquittal under charge (2). It was then said that the judgment was defective because there is no finding as to the intent with which the accused committed the acts of which he has been convicted: R. v. Ingham (1859) 29 L.J.M.C. 18 : 8 Cox C.C. 240 : 24 Jur. 55 : 8 W.R. 28. It is to be observed that that decision is a Jury case. I am not prepared to hold that this Court with all the materials before it could not, in appeal, make a finding of the intent if this had been omitted per incuriam by the Judge. But I am not satisfied that the judgment is so defective in this respect as that it cannot stand, though it would have been better if the finding were more specific, The learned Judge had obviously the question of intent in his mind and expressly mentioned it as regards the first charge, and I think he meant to find the intention which is involved in his convicting the accused on this and the other charges. In that conviction is implied a finding of the intention with which he has been charged. I hold that this ground fails.

11. The 32nd ground of appeal submits that the examination of the insolvent should not have been admitted and that, therefore, the judgment proceeds upon what is not legal evidence. The insolvent was examined apparently under Section 36 of the Act. It was contended that the insolvent could not have been examined under this section, and that under English law admissions obtained under compulsion are only evidence ''against a party ' if the compulsion was legal, but not if it was illegal, and a number of decisions of the English Courts have been cited to us as they were also referred to in the judgment under appeal. It seems that there is a practice to examine the insolvent under Section 36. It is doubtful, however, whether this is provided for by that section. Under Clause (1) the Court may summon the insolvent or other person there mentioned. The words 'Any person' in Clause (2) appear to refer to the same words in Clauses (1). Such person may be brought up for examination. But this can hardly be the insolvent, seeing that the person summoned must be tendered a reasonable sum. Clauses 3, 4, 5 refer to persona other than the insolvent. Apparently Section 27 which provides for the examination of the insolvent could not be held applicable. Mr. Gregory suggests that though the examination was nominally held under Section 36, it was justified under the provisions of Section 33 which compel an insolvent to submit to such examination as may be required by the Official Assignee or may be directed by the Court. It is to be noted that the examination of the accused was held without objection from him and was, therefore, voluntarily made just, as it has been held as regards witnesses that Section 132 of the Evidence Act makes a distinction between those oases in which a witness voluntarily answers a question and those in which he is compelled to answer, and gives him a protection in the latter of these oases only. We are, however, in my opinion, not concerned with the English decisions cited, nor with the principle that an accused is not called on to incriminate himself. There is no question of that here. In this trial he has not been called on to say anything. What has been done is to put in evidence against him something said by him in other proceedings in the insolvency.

12. These statements are relied on as admissions of fact. There is no doubt that the answers given by the insolvent now accused on the former proceedings are admissions under Section 17 of the Evidence Act. Being so, they are relevant and admissible unless they are excluded by sections 18--31 of the same Act. None of these sections exclude the evidence. On the contrary Section 29 states that even a confession (and not merely an admission as here) otherwise relevant does not become irrelevant merely because it was made in answer to questions which the party need not have answered. Even, therefore, assuming (which I do not decide) that the examination of the insolvent was not authorised, the answers given on such examination without objection are nonetheless admissible. Even if there were compulsion not being of the kind which excludes a confession (such as the illegal compulsion suggested), then under the Evidence Act the fact of compulsion might affect the weight of the evidence but not its admissibility. Apart, however, from this I am not satisfied that the Court had not power to examine the insolvent even if Section 36 were not applicable and that there were any illegal compulsion. It is obvious that the Court must have full control of the insolvent. Nextly there being no objection to the examination there was no compulsion in fact but voluntary answers, and lastly even if there were illegal compulsion, this would not under Indian law affect the relevancy and admissibility of evidence, though it might in particular cases affect the weight of the evidence. I, therefore, overrule the objection and hold that the examination of the insolvent which was purported to be taken under Section 36 is admissible, and we have accordingly referred to it. It is chiefly relevant as shewing that the accused kept an account of his dealings in his diary, that it was used in such a way as to be a book of account and for the admissions which it contains that if the missing diary were available, it would afford evidence of transactions which might not otherwise be had.

13. I now proceed to the case upon the merits. At the beginning I may point out that it is admitted that if the other and more serious charges fail, it is not contended that there can be a conviction on charge ( ). The learned Judge has said that the acts and conduct on the 5th March that might in an ordinary case have an innocent appearance take on a very different appearance if the other charges are established. It has been contended that mens rea as regards the events of the 5th Marsh cannot be inferred from the subsequent facts. On the other hand it may be replied that if in oases this be so, all the acts charged may be taken to be part of one common design, which is again contested, Bat as I have said, even upon the view taken by the learned Judge the first charge fails if the others fail and it is, therefore, to them that we must first look. Moreover I think that if the evidence shews that the insolvent was buna fide acting under the advice of his solicitor as to what books were necessary to be produced, the fraudulent intent mentioned in the notice is negatived.

14. I will deal then with charges (3) and (4).

15. The case for the prosecution is that Mr. Mandal, the insolvent's solicitor, was aiding and abetting his client in the commission of these offences and that three parsons were in conspiracy, viz., the insolvent, one Arnfield, the Official Assignee's assistant, now dismissed, and Mr. Mandal. It might have been possible to have so put forward the case that Mr. Mandal was not necessarily involved, for it might have been argued that the insolvent had an interest to make away with the diary and possibly also to tamper with Exhibit F and that he had an opportunity to do so first when he was with Arnfield before the Assignee came to office, and after Mr. Mandal had, according to the witness Blunder, left; the room of Arnfield and secondly when he was with Arnfield after the arrival of the Assignee when Mr. Mandal was admittedly absent. But reliance has not been placed on the second opportunity (if it was one) nor evidence given directly with reference thereto, and as regards the first opportunity the witness Harish Dey, going beyond his written statement to the Assignee, gives evidence that Mr. Mandal was seen by him handing the papers. Though this does not necessarily carry with it an inference of guilt, for such inspection might have been (so far as the prosecution case was concerned) with the leave of Arnfield, it was in fact relied on as an Incident showing complicity.

16. I think, therefore, that the Advocate-General was right when he said that the case of Perry and his solicitor must stand or fall together and, therefore, that anything which renders the case as against Mr. Mandal improbable, weakens the case against the insolvent. Mr. Gregory admits that the case made and the evidence given was that the offences charged were so charged to have taken place before the arrival of the Official Assignee, when according to the prosecution evidence Mr. Mandal and his client were in Mr. Arnfield's tiffin room. The case, therefore, against the insolvent will be weakened by anything which is shown which indicates that Mr. Mandal was not involved. Not only this, for to the extent that Mr. Mandal is freed from suspicion, to that extent he becomes a reliable witness as to what actually occurred unless on the face of the evidence it is unacceptable.

17. At the outset it is to be observed, that whilst it is easy to speculate as to the motives of the insolvent and Arnfield, I am unable to imagine why Mr. Mandal should have, as alleged, implicated himself in this affair. He is a solicitor. He must know that to do what is here charged might result in his being struck off the rolls and convicted of a grave offence. And for what was he undertaking this risk? After all people who take such grave risks must do so in the hope of some good to themselves. Mr. Gregory was unable to say what this good might be. This is not a case in which so far as I can see there is any money. On the contrary the complaint is that there is to little. The insolvent is a man of no substance who has been hawking about for sale the jewellery of others--some of it obtained on credit. Until a short time before his insolvency he was an entire stranger to Mr. Mandal. All that Mr. Gregory could suggest was that the solicitor was too zealous on his client's behalf and had been thus led away to tamper and make away with documents and perjure himself--an explanation I cannot accept as sufficient. I am wholly unable to accept such an explanation in this case, where (so far as the record is concerned) there is no suggestion which shows that the solicitor in question has any but a good reputation, where until the insolvency proceedings he was a stranger to the insolvent, and where no advantage to him, pecuniary or otherwise, is suggested in return for the risk incurred by him in aiding and abetting offences of a criminal character under the Insolvency Act and in return for his bolstering up such conduct by perjury on the trial of such alleged offences.

18. Whilst, however, there is nothing to shew why the insolvent's solicitor should make himself a party to the commission of these offences, we must see whether the evidence offered is sufficient to prove that he did so. Not of course that the solicitor is on his trial; for the issue is as to the insolvent's guilt, but as part of the case which is made against the latter. It has not been made at all clear when the conspiracy was entered into, and a criminal intention first entertained by Mr. Mandal. Some of the evidence and argument would go to shew that the two--the solicitor and client--were both in it from the first. On the other hand Mr. Gregory, when pressed to explain certain incidents, put forward the theory that Mr. Mandal had no criminal design until after the search when he wrote the letter of the 6th March to the Official Assignee. If this be so, then there are certain objections to the earlier part of the case which are unanswered.

19. It is thus said that on the 5th March they--the insolvent and his solicitor--saw the Official Assignee together. Mr. Falkner says that he asked ''Have you brought your books' when a book (Exhibit B) was produced which is said to be both sash and ledger. In examination before the Registrar the latter asked the insolvent whether he (the former) did not say 'Is this your only book.' In his evidence, however, taken later, Mr. Remfry says he asked whether this book was the only book of account and he understood from Mr. Mandal that that was so. (Mr. Mandal) also says (and in this he agrees with Mr. Remfry) that the latter seeing the receipt for Exhibit B asked him 'Is that the only account book.' On which he Mr. Mandal said 'Yes.' As regards the interview he says the Official Assignee asked (and in this he disagrees with the latter) 'Is this the only cash book' on which the insolvent said 'Cash and ledger combined.' Mr. Mandal says that he could not have said that Exhibit B was the only book because he knew that there were others, though he had not seen them. Rightly or wrongly he believed that it was only necessary to put in the main book and not the other books, which it is contended are not strictly books of account though ancillary thereto. There is no doubt that only one book Exhibit B was at first produced. The dispute turns on the question whether the insolvent or Mr. Mandal (it matters not which, for they were present together) said it was the only book the insolvent had or the only book of account. No ore, of course, suggests that either Mr. Falkner or Mr. Remfry were telling other than what they believed to be true. The question is one of recollection and seeing that at the trial Mr. Remfry says the question was as to the book of account and Mr. Mandal says so also, and as Mr. Falkner is not certain of the exact words used or who said them, I do not think that this part of the case standing by itself has been made out.

20. But whatever the words used, whether book, or book of account, the Official Assignee directed a search at the instance of the creditor Mr. Svamvur and his solicitor Mr. Perkins. Then at the Grand Hotel where the insolvent was staying other books were certainly found, which related to his business, whether they can be technically called books of account or not, and whether Mr. Mandal was right or wrong in supposing that they need not be banded in at the first instance but later on. Of course the point is made that if the insolvent had been minded to destroy any of the books he would have done so whilst they were in his possession before the search. It is suggested in reply that he might not have known that there was going to be a search. In that case if his solicitor was aiding and abetting him as alleged, he might have warned his client, either before the search was ordered or possibly afterwards, to get rid of what was against him in his books. According to the evidence of Mr. Savamvur he found Mr. Mandal and Mr. Arnfield in earnest private conversation before the search, suggesting that something was being got up there. It would have been possible then to have delayed the search and communicated with the insolvent. But it is not suggested that this was done. The search took place without objection. Mr. Mandal wanted a list to be made and in fact prepared one himself. It would on the hypothesis of fraud have been more useful if the books had been bundled into a box without any list whatever. Mr. Mandal's list is in fact correct and would on any abstraction of the documents shew what had been taken. In fact he sent a copy of his true list to the Official Assignee after the time when he is alleged to have been a party to the abstraction of the diary for 1913. This is not the conduct of a guilty man. There is no doubt that two diaries were found on the search as also that one diary is now missing. According to Mr. Svamvur Exhibit F, the alleged stock bock, but which was said to be an invoice book, had pages in it with writing which have since been torn out. It is a curious fact that if this be so, the only page which was left was a page shewing goods supplied by Mr. Svamvur's firm. Why this was not also torn out is not clear, unless it be that it was an oversight. It is suggested that this was because the word 'sold' appeared on other pages. But why, it may be asked, leave anything at all seeing that the evidence of Mr. Svamvur, the creditor, as to what was said about the book at the search is denied. It must be noted also that the book contains 425 pages. Of these pages 1--4 are in existence and blank. Pages 5--22 are missing, 23, 24, 23 are in existence and blank and 26 only has some writing on it which happens to relate to Mr. Svamvur's goods. The remaining pages are blank.

21. According to Mr. Svamvur when Exhibit F was found he said 'This is one of the principal things we want. It is the key to the situation. It is just the book we want, shewing the stuff which he should have on hand.' When asked whether it was written up, he replied 'Absolutely full' at least up to a certain page and at page 26 there was his own firm's stock purchased by the insolvent on the 1st October. He says he shewed that page to Mr. Perkins. The latter's examination is not before us as he left before cross-examination, but as regards this particular page there is no dispute because it is still curiously enough in the book. According to Mr. Svamvur other invoices were copied in Exhibit F. It is to be noted here that there are a number of invoices and if these were those copied in F, then if F were destroyed, the materials from which F was suppessed to have been made are available. When asked whether he examined the diary for 1918 the witness Mr. Svamvur said 'We had no time to examine the books. I just looked through it. I took charge of it.' Mr. Mandal on the other hand denies that there was any discussion about Exhibit F. When asked whether any observation was made by any one when that book was found, he replied 'None whatever.'' It said that Mandal did contradict Mr. Svamvur as to the latter's statement as to the contents of Exhibit f and that he knew himself from before what they were. But his evidence, which I accept, is that he had not previously seen the book and at the search he did not examine it.

22. On the other hand it is a circumstance in favour of Mr. Svamvur's evidence that he told the Official Assignee that he had brought the stock book (which properly speaking it was not, judging from present contents), for it may be said he would not have done this if it contained one page only. The evidence, therefore, as to the supposed contents of the book other than the page now existing is contradictory. Whether Exhibit F contained the pages which have been it is said torn out, depends on Mr. Svamvur's evidence along. Without impeaching the truth of that evidence it would not, therefore, be safe to convict the accused in a matter of oath against oath unless it were shown that there was good reason to believe that Mr. Mandal was a party to the alleged offences and that his evidence was on this or other grounds untrustworthy.

23. As regards however, the diary the case stands on a different footing, for it is common ground that two diaries were in fact found at the search, that they were taken in a locked box to the Official Assignee's office and that the box was in Arnfield's keeping, and there is no doubt that one diary is now missing. The case, therefore, now resolves itself now resolves itself into this-has it been shewn that the insolvent abstracted or was a party to the abstraction of this diary from the box of the Official Assignee which was in the keeping of his assistant Arnfield?

24. There is no question but that Arnfield is prima facie responsible. For the diary was in a box in his keeping, the key was with him and the box was kept in his tiffin room. No one, therefore, could have made away with that document except Arnfield aided and abetted that act. At least that is the conclusion on the evidence before us, though of course Arnfield's guilt is not directly in question. It is only relevant so far as it bears on the charge against Perry. It may also, I think, be said on the evidence that the insolvent may have had an interest in getting rid of the diary. But the question is did he in fact give reality to that interest by actually abstracting the book? Has that been proved clearly and beyond all doubt? The first suggestion made is that Mr. Mandal put forward a pretence for the purpose of getting access to the box Mr. Mandal says he saw the Official Assignee at about 4 45 on the 6th March after the search, when he explained to him that certain documents found on the search were relevant for the insolvent's defence against a criminal charge, which one of his creditors was making from Delhi, but that the documents were not required for the administration of the insolvent's estate He says that the Official Assignee agreed to make over the documents on Mr. Mandal writing to him on the subject, on which he (Mr. Mandal) went back and wrote the Official Assignee a letter on the 6th March. This is Exhibit I. The letter commences 'With reference to my interview with you this afternoon.' Mr. Falkner denies having had any such interview, and in fact Mr. Avetoon appearing for the Official Assignee on the trial actually charged that the letter was a fabrication but subsequently withdrew this charge, as he stated that he was instructed that the letter of the 6th March had been received, and in fact it bears Mr. Falkner's initials. The suggestion, however, now is that the letter was written for the purpose of making evidence that is for the purpose of explaining Mr. Mandal's presence with the in-solvent at the office of the Assignee on the 7th March. Mr. Mandal says he did not get the documents. On the 7th, therefore, he went to the Official Assignee's office a few minutes after 10 a.m. As Mr. Falkner had not arrived he went into Arnfield's office and asked for inspection of the press copy letter book, but Arnfield refused this without the permission of the Official Assignee. Mr. Arnfield, however, said that the Assignee would come shortly, and Mr. Mandal and his client sat in Arnfield's office until news was given of the arrival of Mr. Falkner about a quarter of an hour later. Mr. Mandal and his client then saw the Assignee, when the former explained his business and the Assignee gave directions that Arnfield should give inspection to Perry. Mr. Mandal, however, himself went away as he had business in Court. Apparently Mr. Perry then went and saw Arnfield. Mr. Falkner says that though the insolvent and his solicitor, when they saw him on the 7th asked for a copy of a letter from press copy letter book for the purpose of the criminal charge, yet that no copy was taken that day or any other day, and that when ha pointed out that to Mr. Mandal he explained that he only wanted the date. After the insolvent had seen Arnfield, the creditor Mr. Svamvur arrived and on inspecting the documents discovered the loss and alleged tampering. So far as Mr. Mandal is concerned, it is to be noted that it was, therefore, possible on the evidence that the abstraction and tampering, if it took place, was done when admittedly ha was absent at the High Court and when Arnfield and the insolvent were together.

25. As an answer to this case about the letter of the 6th March it is pointed out that it is an admitted fast that there was some discussion at the search as to some of the documents being necessary because of the possibility of a prosecution by the Delhi merchant Babumull. According to one hyhothesis put before us, Mr. Mandal had not at the time of the search determined that any document should he tampered or made away with. If this be so, the reference to these documents at the search could not have been a mere pretence. If so, there is nothing in the point that the information sought has been (sic) and was not obtained at the search, whether this was possible or act. It is suggested, however, that after the search when the documents were taken away the criminal intention may have been formed and in pursuance of it a demand was made on the 6th for documents relevant to the criminal charge, in order that there might be an excuse for the presence of the insolvent and his solicitor at the Assignee's office on the 7th. The two hypotheses do not work together. I think that the admitted fast that the need for the documents was mentioned at the search is a circumstance against the case made against Mr. Mandal that the letter of the 6th March and the demand for the documents was a mere pretence. As regards the reasons given by Mr. Mandal for wanting the documents it was not a date only which was required but the press copy book in which the telegram was copied, in order that the words used might be before him in dealing with the threatened criminal charge.

26. Reliance is placed on the fact that the statement in the letter of the 6th March is not challenged in the correspondence by Mr. Falkner, who in his evidence states that on the 7th the insolvent and his solicitor came to him for a copy of a letter in the press copy book 'as (to use his words) it was necessary in view of the criminal charge that they had spoken to me about the previous day.' Either this is an admission that the Assignee did see them the previous day or possibly Mr. Falkner meant to say that Mr. Mandal told him on the 7th that he had been spoken to on the previous day, If the latter, this supports the defence that Mr. Mandal did see Mr. Falkner. For it is then shewn not only that he wrote to that effect but re-stated the fact at the interview on the 7th. It is possible that Mr. Falkner's memory may not be accurate on this point. We have it that Mr. Avetoom (1 presume on instructions) stated that the letter of the 6th March was a fabrication, but subsequently had to withdrew it as it was found the letter had been in fact received.

27. I am unable, therefore, to hold that it has been established that Mr. Mandal was putting forward a pretended interest in the documents relating to the threatened criminal charge in order to account for his presence at the office on the day of the alleged tampering and theft.

28. If this be so, I cannot say that there was no reason for Mr. Mandal visiting the office of the Assignee with his client the next day. It is said that he went early though it is to be observed as to this that the' adjudicating orders shew that the office hours were from 10 to 4. But apart from this Mr. Mandal wished to get away to Court and he in fact left immediately after the arrival of the Official Assignee. If in fact, as the evidence generally stater, Arnfield used to some late after the Assignee, this is a circumstance unexplained and to that extent a circumstance of suspicion but does not by itself go far. This is a matter for Arnfield himself to explain but he is not called, though I think that the Official Assignee was justified under the circumstances in not calling him as his witness as he could not put him forward as a witness of truth.

29. I now pass to the evidence of what occurred at the office when the insolvent and his solicitor were there. This depends entirely on the evidence of the witness Bamdeo whom the learned Judge thought to be a trustworthy witness and I accept his impressions on this point. I say 'entirely,' because the witness Harish Dey the learned Judge thought to be not satisfactory and accepted only his evidence so far as it was corroborated by Bamdeo. It is of course open to the Court to accept part of the story of one witness who is not reliable if it be corroborated by another who is reliable. But to accept the story is not necessarily to say that the evidence is stronger because of its being spoken to by two witnesses; since the acceptance of one witness's statement is not on his credit but on that of the other reliable witness who supports him. There is some ground for believing that this witness Harish was inimical to Mr. Mandal and he in fact introduces features in the evidence not spoken to by Bamdeo or mentioned in the statement to Mr. Falkner or Harish himself, namely, the important alleged incident of Mr. Mandal handling the documents in the tiffin room of Arnfield, which is in contradiction to Bamdeo's evidence who says nothing about handling papers and that Mr. Mandal left the room leaving Perry and Arnfield there. Bamdeo's evidence is that' Arnfield arrived at 9-45 and Mandal at 9.50. The witness was told to fetch Perry who was outside. Then Arnfield opened the tiffin room where the box with the documents was and all three went inside. After two or three minutes Mr. Mandal went out leaving Perry and Arnfield together for 10 minutes. Then Perry went out, Harish Day's account is discrepant with this, but both agree that Mandal and Perry were in the tiffin room, and this seems to have been reported to the Official Assignee. It is noteworthy that Perry and Arnfield were together on the two occasions, before and after the arrival of the Official Assignee, and Mr. Mandal was there on the first occasion, and it is possible that there may be gone confusion in Bamdeo's mind in mixing up these two occasions. However this be, I am not prepared to bold that the evidence of Bamdeo is sufficient unless it were shewn (as in my opinion it is not) that both the events leading up to and following the fact spoken to by him sufficiently support the respondent's case. It is certainly noteworthy that if these persons had the intention before the Official Assignee came to tamper and abstract the documents, that they should have left the door open for others to see what they were doing and that the peon was not sent away on some business or other. Then we find both, after the supposed incident, going to the Official Assignee. It is noteworthy also that it was at one time proposed to bring criminal proceedings against Perry and Arnfiled alone, no mention being made of Mr. Mandal.

30. It was suggested that Mr. Svamvur and Arnfield may have been in complicity. This I do not believe. The insolvent's charges on this head have been disbelieved by the learned Judge and his case has not been advanced thereby, nor by his absurd allegation that the Official Assignee himself was withholding books. It could not have been to Svamvur's interest to get rid of either any pages of Exhibit F or the diary. But though the making of such unfounded charges may detract from the insolvent's explanations, they cannot by themselves establish the Assignee's case.

31. It is possible that Arnfield, who on the evidence before us is prima facie responsible and an unreliable man, might have had some interest in embarrassing the creditor's case as regards Exhibit F, but this cannot, I think, be suggested as regards the diary the value of which way not apparent till the insolvent's examination later on. That the insolvent may have had an interest to make away with and tamper with the books is, I think, indisputable. But the question is, has it been made out that he did so? The case against him would have been stronger had it not been asserted that Mr. Mandal was aiding and abetting him. This on the evidence I cannot believe and as the charge against Mandal is mixed up with that against Perry it is not possible, I think, in this case in the view I take of the matter, so far as Mr. Mandal is concerned, to hold that the charges have been established against the insolvent though there are circumstances of suspicion against him.

32. In the result, therefore, I must hold that the charges against the insolvent have not been made out. I do not believe upon the evidence that Mr. Mandal was aiding and abetting as alleged. I accept his evidence that when he was in Arnfield's room there was no handling of the papers, and no case has been made that in his absence on either the first or second occasion of Perry's visit to Arnfield the insolvent committed the alleged offences. On the contrary the case throughout has been that the two were jointly concerned in committing the offences alleged--an allegation which in my opinion fails.

33. The appeal, therefore, succeeds and the' order' of the 28th May 1919 sentencing the insolvent to imprisonment is, as regards all the charges, reversed. The surety for the appearance of the insolvent during the hearing of this appeal is discharged.

Walmsley, J.

34. I agree in the judgment delivered by Mr. Justice Woodroffe.


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