FAZLUR RAHMAN SARKAR Vs. ATAL BEHARY GHOSE

JUDGEMENT

(1.) This rule is directed against the order of Moulavi Abul Hossain, Honorary Magistrate of Serajganj, dated 22 December, 1939 under which he convicted the petitioners under Section 379, Indian Penal Code, and sentenced them to pay fines of Rs. 50 each or in default to undergo rigorous imprisonment for two months each, The case for the prosecution appears to have been that the complainant was the mortgagor in respect of certain property which had been mortgaged to Fazlur Rahman Sarkar, petitioner 1 and also to the father of Abdul Gani, petitioner 2 under a usufructuary mortgage which was executed on 17 February 1932. In due course the complainant applied to the Mesra Debt Settlement Board for the settlement of his debts including the debt covered by the above-mentioned mortgage. The amount of these debts was duly determined under Section 18, Bengal Agricultural Debtors Act, and, on 8th October 1938 the Debt Settlement Board settled the complainant's debts under an award, one of the terms of which was that, as far as the debts due to the petitioners were concerned, these should be liquidated by means of annul payments of Rs. 7-5-0 a year for 20 years and that, in the meantime, the mortgaged property would be made over to the possession of the mortgagor with effect from the beginning of Magh 1345 B.S. It was the complainant's case that in accordance with the terms of this award the mortgaged property came to his possession and he cultivated it through his bargadars, but that on 17 July 1939 the petitioners together with a number of other people entered the land and cut away and took jute therefrom valued at about Rs. 80. The main defence of the petitioners before the trial Court was to the effect that they were not guilty and did not take part in the alleged occurrence. The learned Magistrate after a careful discussion of the evidence came to the conclusion that the complainant's debt to the petitioners had been settled under the award of the Debt Settlement Board on 8 October 1938, as alleged by him, and that as a result of the award he had obtained possession of the mortgaged property and had grown jute thereon through his bargadars, which had been cut and taken away by the petitioners. The learned Magistrate further found that the prosecution case had been satisfactorily proved and the petitioners were guilty under Section 379, Indian Penal Code.

(2.) The main point urged on behalf of the petitioners in connexion with this rule is that they should not have been convicted under Section 379, Indian Penal Code, because in view of the provisions of Section 27, Bengal Agricultural Debtors Act, the Debt Settlement Board had no jurisdiction to direct that the mortgaged property should be made over to the complainant and in this view of the case, this term in the award dated 8 October 1938, must be regarded as being without jurisdiction. It is, therefore, contended that the usufructuary mortgage dated 17 February 1932, should have been regarded as still subsisting on 17 July 1939, the date of the occurrence; and this being the case, the petitioners could not be convicted of theft. From a reference to the proceedings of the Debt Settlement Board there is no doubt that the debt due to the petitioners was duly determined under Section 18, Bengal Agricultural Debtors Act, and that this debt was settled by means of an award under Section 19 of the Act. Under Section 25 (1) (e) of the Act it is laid down that amongst other particulars which should be included in the award are directions as to the manner and the order in which and the times at which the amounts referred to in Clause (d) shall be paid. Clause (d) of this section refers to the amount to be paid to each creditor for each debt owing to him under the terms of an amicable settlement or of an order of the Board under Section 19 or Section 22. It is, therefore, clear that the Board had jurisdiction to give directions as to the manner in which the sum for which the debt had been settled should be paid; their directions on this point were to the effect that the debt should be settled for Rs. 151-4-0 which sum should be payable by annual instalments of Rupees 7-5-0 as already stated. Under the terms of the usufructuary mortgage, which was executed on 17 February 1932, it was stipulated that the amount of the debt together with the interest thereon would be liquidated by making over possession of the mortgaged property to the mortgagee for a period of 15 years. It would therefore appear to have been the intention of the parties according to the terms of the mortgage that the debt should be liquidated in the above mentioned manner.

(3.) Obviously, having regard to the provisions of S.25 (1) (e), Bengal Agricultural Debtors Act, the Debt Settlement Board had authority to prescribe some other manner for liquidating the debt and in my view, it cannot be said that the directions which they gave in respect of this matter were beyond their powers. In this connexion, it is argued by the learned advocate for the petitioners that, in view of the provisions of Section 27 of the Act, the Debt Settlement Board had no authority to alter the usufructuary character of the mortgage. Section 27 (1) of the Act is in the following terms: When an award is made as regards any debt which is secured by a mortgage, lien or charge on any immovable property of a debtor, such mortgage, lien or charge shall subsist to the extent of the amount payable in respect of such debt under the award until such amount has been paid or the property has been sold for the satisfaction of such debt or the debtor has been granted a certificate of discharge under Sub-section (5) of Section 22.