ASHUTOSH GANGULY Vs. ELWATSON

JUDGEMENT

(1.) This is a Rule calling upon the Chief Presidency Magistrate and the opposite party to show cause why the conviction of the petitioner should not be set aside on the grounds : (1) that the conviction under Section 102 of the Presidency Towns Insolvency Act is bad in law, (2) that the joint trial of the petitioner with Monmohan Bose is illegal and (3) that the identity of the petitioner is not established. As to the third ground it has not been seriously pressed nor is tken any substance in it. The other two grounds are, therefore, to be considered in connexion with the facts of this ease which are : that the petitioner along with one Monmohan Bose was placed on his trial before the Chief Presidency Magistrate for an offence under Section 1o2 of the Presidency Towns Insolvency Act on the allegation that the accused contracted debts of about Rs. 6,000, while they were undischarged insolvents, and was convicted of the offence and sentenced to three months rigorous imprisonment. Section 102 of the Presidency Towns Insolvency Act is in these words: An undischarged insolvent obtaining credit to the extent of Rs. 50 or-upwards from any person without informing such person that he is an undischarged insolvent shall, on conviction by a Magistrate, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

(2.) It appears that the petitioner was adjudicated insolvent by the Court of the District Judge of Hooghly and his co-accused Monmohan Bose was adjudicated insolvent in the Original Side of this Court. The first question that arises is Can the petitioner be convicted tinder Section 102 of the Presidency Towns Insolvency Act? It has been urged on behalf of the Crown, and the trial Magistrate in his explanation has submitted the same view, that Section 102 enunciates an offence committed by an undischarged insolvent by whichever Court he may have been adjudicated. This view is clearly wrong. That section is included in Part VIII of the Presidency Towns Insolvency Act which deals with penalties presumably incurred by an insolvent so declared under the Act. Section 103 which also does not define the insolvent makes punishable certain acts of the insolvent which could only be done under the Presidency Towns Insolvency Act. The conviction of the petitioner under Section 102 of the Presidency Towns Insolvency Act is, therefore, illegal; but it is argued that he may be convicted under Section 72(1) of the Provincial Insolvency Act, 1920 and tried jointly with Monmohan Bose, under Section 239, Clause (d). Criminal P.C., as the facts found are that the two accused incurred the debts while carrying on a joint business under the name and style of the Indo- European Import and Export Company, Limited, in, the town of Calcutta.

(3.) Section 72, Clause (1) of the Provincial Insolvency Act is word for word the same as Section 102 of the Presidency Towns Insolvency Act III of 1909. The second clause of Section 72 runs thus: Where the Court, has reason to believe that an undischarged insolvent has committed the offence referred in Sub-section (1), the Court, after making any preliminary enquiry that may be necessary, may send the case for trial to the nearest Magistrate of the First Class, and may send the accused in custody or take sufficient security for his appearance before such Magistrate; and may bind over any person to appear and give evidence on such trial.