Decided on March 28,1961



Amaresh Roy, J. - (1.) This Rule was issued upon an application tor Revision made On behalf of an accused person in a case which is now pending in the Court of a Presidency Magistrate and raises a question about the admissibility of books of account and documents produced on behalf of the Official Liquidator and also the manner of proof of the entries in those books of account and documents. A short history of the proceeding will be necessary for appreciation, of the points raised and decision thereon, in a liquidation proceeding of a banking company of the name of Bank of Commerce, Limited an order for winding up was made by this Court on 7-8-1950, and in course of that proceeding Mr. G. K. Dutt, Bar-at-Law was appointed Liquidator. On 7th September, 1950, Official Receiver was appointed the Official Liquidator in place of Mr. G. K. Dutt. Thereafter an order under Section 179 of the Indian Companies Act, 1913, was made by Bachawat, J., on 15th January, 1951 authorising the Official Liquidator to institute or defend any suit or prosecution or other legal proceeding civil or criminal in the name and on behalf of the Company. Thereafter upon an application of the said Official Liquidator praying for directions S.N. Banerjee, J., passed an order under Section 237 (1) of the Indian Companies Act, 1913 on 22nd July, 1952. After that order was made a petition of complaint was filed On 23rd July, 1952, in the court of the learned Chief Presidency Magistrate, Calcutta by one Jasada Dulal Adhikari, an assistant incharge under the Official Liquidator and that petition of complaint stated that it was filed for and on, behalf of the Official Liquidator and an authority signed by the Official Liquidator was attached to the petition of complaint as Schedule A thereto. By that petition of complaint it was grayed that processes may be issued against the two accused persons named therein (1) Dr. Sailendra Nath Sinha (2) Sudhendu Prosad Roy Choudhury for alleged offences under Sections 120-B, 406, 467 and 477-A Indian Penal Code and also Section 282-A of the Indian Companies Act, 1913. Cognizance of the alleged offences was taken by the learned Chief Presidency Magistrate on 23rd July, 1952, upon that complaint. Thereafter the case passed through various stages which are rot relevant for the purpose of the present Rule except that on 10th October, 1958, an application was made for cancellation of bail bond of accused No. 1 by K.N. Ghosh Hazra, Advocate who stated that he had been appointed special public Prosecutor to conduct the case on behalf of the State and by an order dated the 16th December, 1958, directions were given to ascertain whether the complainant Jasada Dulal Adhikari had given instruction to the Public Prosecutor to proceed with the case on his behalf. On 6th January the complainant appeared in Court and informed the Court that he had entrusted his case with the Said Mr. K.N. Ghosh Hazra, Advocate. On 28th May, 1959, a point was raised on behalf of the accused persons that as the case was instituted upon a complaint it could not proceed as a 'State case' and by an order dated the 4th June, 1959 the learned Magistrate decided that point and rejected the defence contention and directed that the case should proceed as a case conducted by the Public Prosecutor on behalf of the State. Evidence commenced on 11th August, 1959 and while adducing evidence prosecution wanted to adduce in evidence certain books of account of Bank of Commerce, Limited under the provisions of Section 45F of the Banking Companies Act (Act X of 1949). This was objected to by the accused persons and the matter was heard on 13th August, 1959 and by an order dated the 20th August, 1959 the learned presidency Magistrate held that provisions of Section 45F of Banking Companies Act will apply and the documents wore admissible in evidence in conformity with those provisions.
(2.) Against that order of the learned Presidency Magistrate accused No. 1 Dr. Sailendra Nath Sinha has invoked the revisional powers of this Court and has prayed that the order of the learned Presidency Magistrate dated the 20th August, 1939 should be set aside. Rule issued on 13th August, 1959, pending the disposal of this Rule the proceeding before the learned Presidency Magistrate has remained stayed.
(3.) The learned Advocate Mr. Nalin Chandra Banerjee appearing in support of the Rule contended at the outset that: (1) Section 45F of the Banking Companies Act (Act X of 1949) is limited in its application only to winding up proceedings of prosecution on criminal charges, (sic) (2) That Section 45F applies on its own terms in proceedings "By or against the banking company". Mr. Banerjee contends that the criminal case now pending before the learned Presidency Magistrate is not a proceeding by the banking company. (3) Even if Section 45-F applies that makes the books of account and other documents admissible in evidence, and, according to Mr. Banerjee, proof according to the provisions of the Evidence Act is necessary before the contents of those books of account and documents can be accepted in evidence.;

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