JUDGMENT
Charu Chunder Ghose, J.
1. The appellant before us Marilal Bwwas has been convicted by the learned Chief Presidency Magistrate under Section 103 of the Presidency Towns In-solvency Act and has been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000 in respect of each of the three counts, the substantive sentences being directed to run concurrently.
2. So far as the question of the imposition of the fines is concerned, that portion of the order is clearly wrong and must be set aside because it will appear from a reference to Section 103 of the Act that there is no provision made for the imposition of any fine. That being so, as indicated above, the portion of the Magistrate’s order imposing a fine of Rs. 1,000 in respect of each count must be set aside.
3. It appears that the appellant before us formerly, that is, prior to 1329 B.S. carried on business in the name of Bepin Chandra-Matilal. He was a partner in the firm, the other partner being his brother Bepin Chandra. The two brothers quarrelled and separated and the accused started a new business in the name of Matilal-Monindra Nath Biswas, Monindra Nath Biswas being the name of his minor son. That business was in scented oils, patent medicines, biscuits and stationery, and it is said that the firm had no business of any description whatsoever in galvanized screws. Apparently the appellant did not do well in his business and it appears that he experienced considerable difficulties in meeting the claims of his creditors. It is said that his creditors assembled one evening in front of the place of his business and continued to press him for payment of their dues. The creditors were not paid and on the following day the appellant closed his doors. He then went to the Court of the District Judge of Faridpur and applied for relief under the Provincial Insolvency Act. Certain creditors in Calcutta coming to know of these proceedings in Faridpur applied to the learned Judge on the Original Side exercising the Insolvency jurisdiction of this Court for transfer of the proceedings to this Court. It appears that the learned Judge on the Original Side being satisfied that this was a case which ought to be transferred to this Court made the order applied for and accordingly transferred the proceedings to this Court.
4. Thereafter there was an order made for the public examination of the insolvent, under the provisions of Section 27 of the Presidency Towns Insolvency Act. The record of that examination has been tendered in evidence in this case and is Ex. 5. Subsequently it appears that the insolvent was also examined under Section 36 of the Act, the record of that subsequent examination being Ex. 6.
5. After the public examination of the insolvent had been concluded, certain creditors, who are described as B. N. Pal and B. K Pal made an application to the learned Judge in Insolvency for the framing of certain charges under the provisions of Section 103 of the Presidency Towns Id solvency Act, it being alleged against the insolvent that he had been guilty of offences tinder the Insolvency Act. It appears that at first the learned Judge was of opinion that no definite case has been made out against the insolvent. He, therefore, dismissed the application with liberty to the creditors to put in a fresh application for a similar order, if they were so advised within one month from the date of the learned Judge’s previous order. Such a fresh application being made to the learned Judge, the latter by his order dated the 12th July, 1927, directed, in terms of Section 104 of the Presidency Towns Insolvency Act as amended by Act IX of 1926, that a complaint should be made to the Chief Presidency Magistrate, Calcutta, in respect of three matters which had been brought to his notice. Thereupon the enquiry under Section 104 of the Presidency Towns Insolvency Act as amended by Act IX of 1926 was held before the Magistrate. A number of witnesses were called to give evidence against the accused and it is said that they made out a prima facie case against the accused that he had been guilty of certain offences under the Insolvency Act, to wit, keeping false documents and books of account and making false entries therein,
6. The charges against the accused framed in the Chief Presidency Magistrate’s Court were these: (1) keeping a false roker book and showing a false debit entry therein in the name of Kasinath Mandal of Sibganj for a sum of Rs. 429 6 0; (2) keeping a false roker boot and showing a false entry therein in the name of Kunja Behary Saha for Rs. 1,402-8-0, and (3) keeping a false challan book stowing a fake debit entry therein in the name of Kanhaiya Lal-Routh Mull for Rs. 3,340.
7. In support of the case for the prosecution the three principal witnesses were Kasinath Mandal (P. W. No. 7), Surendra Lal Saha (P. W. No. 4) and Tamsukh Das (P. W. No. 5). The prosecution alleged that this accused, who did not do any business in galvanized screws, suddenly took it into his head to have large dealings therein and with that view purchased a very large lot of galvanized serews from a dealer during a period exceeding eight months and that he disposed of the same within the brief space of three days. It is further alleged by prosecution that the books of account show that the persons named above, namely, Kasinath Mandal Kunja Behari Saha and Kanhaiya Lal Routh Mull from whom the appellant had purchased diverse goods had been paid in part in kind, that is, in certain quantities of galvanized screws being handed to them and that the balances due to them were paid in cash, those balances being the amounts mentioned in the charge. It is suggested on behalf of the prosecution that the whole thing was false from start to finish, that the insolvent, as a matter of fact, did not have any transaction with the firms whose names are mentioned in the charges mentioned above, and that he made false entries in his books of account.
8. The witnesses whom I have referred to above gave evidence that they had no transaction of any sort whatsoever on the dates mentioned in the appellant’s books and that they were not the persons who had taken payment in kind in the shape of galvanized screws from the appellant or that they had been paid in cash the alleged balance due to them.
9. The defence was that the entries in question were genuine and that prosecution witnesses Nos. 4, 5 and 7 had really nothing to do with the firms whose names are mentioned in the charges framed against the accused and which were the firms with whom the petitioner had dealings in respect of his business and in respect of which dealings the entries in question had been made.
10. The learned Chief Presidency Magistrate went into the matter at some length. He had the oral evidence of these witnesses before him. He had the books of the appellant before him and he came to the conclusion that the persons or the firms who were referred to by the accused in the entries in question were fictitious and had no existence whatsoever. He further came to the conclusion that having regard to the way in which the appellant had kept his books of account there was abundant evidence for coming to the conclusion that those books had been kept in a fraudulent manner and that the entries in question were false. Upon these findings he convicted and sentenced the accused as indicated above.
11. This appeal being an appeal from a judgment of the Chief Presidency Magistrate has been argued at considerable length both on law and on facts.
12. The learned Advocate appearing for the appellant has argued in the first place that the Magistrate had no jurisdiction whatsoever to try this case because, at the date when the proceedings in insolvency were initiated, Act IX of 1926 had not come into force at all and that the procedure for the trial of the appellant, assuming that he was guilty of offences under the Insolvency Act, should have been under the old Section 104, that is, under the section as it stood before its amendment by Act IX of 1926, and, in support of this contention, has drawn our attention to a large number of cases in which the position is canvassed to as whether Acts passed by the Houses of Parliament or by the Legislature in this country have or have not a retrospective effect. The cases to which our attention has been drawn have, in our opinion, really no bearing whatsoever on the precise question, that we have got to determine in the present case and it would serve no useful purpose if we were to go through at length through the long catena of cases to which our attention has been drawn. Now, this amendment by the Act of 1926 is really an amendment affecting procedure and it is apparent from a perusal of the dates in this case, that on the 12th July, 1927, when the learned Judge preferred a complaint before the Chief Presidency Magistrate Act IX of 1926 had come into operation and, therefore, the only section which could be brought into play was Section 104 as it was amended by Act IX of 1926. The complaint itself is one under Section 104 as, amended, and that being so the Magistrate was the proper person who could hold, the enquiry on the complaint of the learned Judge exercising the Insolvency jurisdiction of this Court. We think that there is no substance whatsoever in the point which has been taken and that it must be negatived.
13. It is next argued that the record of the depositions under Section 36 of the Presidency Towns Insolvency Act could not be admitted in evidence in this case. It appears to us that the contention, so far as it goes, is sound and must be given effect to; and in coming to a conclusion as regards the guilt or otherwise of the appellant before us we have eliminated from our consideration entirely the record of the deposition under Section 36 of the Act. But while we have eliminated from our consideration the record of the depositions under Section 36 of the Presidency Towns Insolvency Act, we have taken into consideration the record of his examination under Section 27 of the Presidency Towns Insolvency Act, that being evidence which, according to the terms of the section itself, can be taken into consideration against the accused in proceedings held under the Act. It is, however, argued that although the record of an insolvent’s deposition under Section 27 of the Presidency Towns Insolvency Act can be taken into consideration in proceedings against an accused under the Insolvency Act, that record cannot be admitted in evidence in criminal proceedings against the accused. Now, the present proceeding is a proceeding under Section 103 of the Presidency Towns Insolvency Act and that being so, it is a proceeding under the Act. The question has been considered in England and it has been held in several cases that an insolvent’s answers to questions put in public examination under the Bankruptcy Act can be used against the insolvent in a subsequent criminal proceeding. [See in this connection the cases reported in R. v. Cherry (1872) 12 Cox C.C. 32 and R. Hillam (1872) 12 Cox C.C. 174.] That being so, we see no reason whatsoever why the record of the deposition of the appellant under Section 27 of the Presidency Towns Insolvency Act could not have been taken into consideration by the Magistrate in this case.
14. It is next argued that the charges are bad as the second charge could only be understood if two entries and not merely one entry were taken into consideration and, therefore, it is said that the charges, although three in number, were really four in substance, and that that being so the trial is vitiated. Now, what are the charges against the accused? The charges really are: keeping a false roker or making a false roker book and making false entries therein and also keeping a false challan book and making false entries therein. The references to the figures showing the moneys paid out by the appellant are merely illustrative and we do not think that any real prejudice of any description was or could have been caused to the appellant by reason of the charges being framed in the manner in which they were framed.
15. It is next argued that there is no evidence to connect in any way the terminal dates mentioned in the charges themselves within which period it was suggested the entries in question were made. In the charges definite indication are given as to the dates of the entries themselves. Therefore, assuming for argument’s sake that there was any confusion about the terminal date?, we are of opinion that no prejudice was or could have been caused to the accused, seeing that he was fully aware in respect of what entries the charges were being investigated against him.
16. It is also argued that the question of galvanized screws which was taken into consideration by the Magistrate in this case in investigating the charges against the accused should not have been taken into consideration at all because the learned Judge who made the complaint had himself in a prior proceeding come to the conclusion that the explanation of the accused so far as purchases of galvanized screws were concerned was satisfactory and, in support of this contention, we have been referred to an order made by the learned Judge in the insolvency jurisdiction of this Court dated the 14th June, 1927. So far as this point is concerned, it does not really come into this proceeding at all. The complaint was made not under the order of the 14th June, 1927 but under the order of the 12th July, 1927 and we must exclude from our consideration in investigating the present case against the accused any question which might arise on a construction of the order of the 14th June, 1927.
17. These are, as far as we can make out, all the points of law which have been canvassed before us. On the facts, it has been argued that the evidence shows that there is room for doubt as to whether the accused was really guilty. It is argued that the fact that three witnesses, viz., Nos. 4, 5 and 7 were called to prove that they were not the persons with whom the appellant had dealings does not exclude or negative any theory of there being other persons of the name of the persons or firms referred to in the charges in the places mentioned against their names who had done business with the appellant. As far as we can understand the evidence, the prosecution brought forward before the Magistrate evidence of a satisfactory character showing that the accused had committed the offences charged against him. It was the accused’s business to rebut the case made by the prosecution. There is no question of the Magistrate having gone wrong in having placed the onus on the accused. The Magistrate has not placed the onus upon the accused.
18. We think on the facts that the case made by the prosecution is such as to induce us to hold that the case is true. That being so, we have come to the conclusion that both on law and on facts this appeal must fail.
19. The appellant, who is on bail, will now surrender to his bail-bond and serve out the remainder of the sentence imposed on him.
Jack, J.
20. I agree.
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