BALAKRISHNA CHETTY Vs. SHANMUGAM

JUDGEMENT

(1.) THESE revision petitions are directed against the order of the Sub Magistrate, Vellore, dismissing the two petitions wherein the petitioner raised the ground assailing the maintainability of the complaint filed by one Shanmugham that no sanction of the Insolvency Court has been obtained. Mr. T. R Ramachandran, the learned Counsel for the petitioner, abandoned the argument based solely on S. 28 (2) of the Provincial Insolvency Act, 1920, wherein the construction of the phraseology "any suit or other legal proceeding, except with the leave of the court and on such terms as the court may Impose " would cover only civil proceedings in relation to 'any suit'. But his main argument is this: The petitioner was adjudged as an insolvent en 6th September, 1969 and the Receiver took charge of all his assets including his business. The whole of the property of the insolvent has been vested in she Receiver with effect from 6th September, 1969. Whatever is the nature of the crime committed In respect of theses properties of the insolvent vested in the Receiver, it is the insolvency court that ought to be satisfied after a preliminary enquiry that there is ground for enquiring into any offence referred to in S. 69 (c) of the Act. The complainant, Shanmugham cannot move legally a criminal court independent of the procedure embodied In S. 70 of the Provincial Insolvency Act, 1920. The learned Counsel laid particular emphasis on the language of S. 69 (c) and contended that substantially the offence defined in S. 421, I. P. C. is the same offence referred to in S. 69(c). In my view, a comparison of the Ingredients of S. 421, I. P. C. and the ingredients of the offence referred to in S. 69(c). of the Provincial Insolvency Act, would disclose that these are not exactly similar, although some elements in both the offences may overlap of appear to be similar. But, all the Ingredients of S. 421, I. P. C. are not the came at the offence referred to in S. 69(c). of the Provincial Insolvency Act. The argument of the learned counsel is that when S. 70 provides for the Insolvency Court to make a complaint of the offence in writing to the Magistrate, the creditor cannot legally move a criminal court independent of the procedure found in S. 70 of the Act. I am unable to accept this argument, for it is ruled in Segu Baliah v. Ramasamiah, 1917 L. W. 6 283 that such as argument which would involve an implied repeal of S. 421 of the I.P. C. should be rejected. No doubt, that was an ease under Provincial Insolvency Act (III of I907), but the legal principle covered by the decision of this Court will apply to the facts of the present case with equal force and validity. Abdur Rahim, J. held that "taking for instance S. 421, the offence with which it deals is not exactly the same as is covered by S. 43 of the Insolvency Act. But apart from that, S. 26 of the General Clauses Act is quite empress on this point. It says " where an act or emission constitutes a offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for the same offence." The authority relied upon on behalf of the petitioner, i.e., the ease reported In Chandi Prasad v. Abdur Rahman, I.L.R. 22 Cal. 131, 139, was not one in which the prosecution was under S. 421 or 424 I.P.C But I may observe that If this case is intended to support a general proposition that because a special enactment deals with an offence similar to the offence which is dealt with by the Indian Penal Code, therefore, the provisions of the Indian Penal Code should be taken to have been repealed to that extent. I am not prepared to accept that proposition. In the Calcutta case the provisions of S. 26 of the General Clauses Act were not apparently brought to the notice of the learned Judges and those provisions to my mind are too clear to be ignored.

(2.) IN my view, the rationale found in the decision in Lucas v. Official Assignee, Bengal,, AIR 1920 Cal 624 is not really of any assistance to the petitioner, Jenkins C.J. and Woedreffe, J. held that though no invariable rule can be laid down. It is ordinarily undesirable to institute criminal proceedings until the determination of civil proceedings in which the same issues are involved, Criminal proceedings lead themselves to the unscrupulous application of Improper pressure with a view to influencing the course of the civil proceedings, and beyond that there is the mischief of criminal proceedings being instituted with an imperfect appreciation of the facts where they have not been ascertained in the more searching Investigation of a civil court. It is obvious that this position of law does not render an independent resort to the criminal court by a creditor against the insolvent for investigation complaint under S. 421 I.P.C. Illegal.

(3.) MAUNG Ba, J in U. No Gaung v. U Po Sin, A.I.R 1929 Rang. 14 (2) held that the Presidency Towns Insolvency Act does not take away a magistrate's jurisdiction to try the insolvent for an offence under S. 421 and 424 I.P.C. The learned Judge held that nothing contained in the Presidency Towns Insolvency Act takes away a Magistrate's jurisdiction to try the insolvent for an offence under those section. This view was held by a Bench of the Bombay High Court in Emperor v. M.H. Bhatt, (1910) 35 Bom 63.