Y KOTHANDARAMA REDDY Vs. KANDRA BALARAMI REDDY

JUDGEMENT

(1.) THIS case arises out of an incident which is alleged to have occurred on the 8 January, 1936. The first accused is the guardian of two minor judgment-debtors against whom a decree-holder had obtained an order for attachment of a standing crop. On the 8 January, an amin was being sent from the District Court to harvest the crops which had been attached. The accusation in the complaint, which was filed by a surety in whose custody the attached crop had been left, was to the effect that the first accused, the guardian of the minors and the two lessees of the property had begun to harvest the crop before the amin came and refused to desist from their unlawful action when the amin arrived and protested. The complaint was laid under Section 379 of the Indian Penal Code. The prosecution evidence was over and a charge was framed under that section, and when all the prosecution witnesses except one had been further cross-examined after the charge, the accused raised the technical objection to the pro-Reddy. secution that the Court was incompetent to entertain the complaint on the ground that it disclosed an offence under Section 206 which required the sanction of the District Court. The learned Sub-Magistrate of Muthukur who tried the case thereupon wrote an order refusing to uphold this objection. The reason he gave was, that once the property had been attached and handed over to the custody of a surety, it could no longer be said that any action of the accused in harvesting the crop was done to prevent the crop being taken in execution . There can be no doubt, I think, that the particular reason which the Sub- Magistrate gives for his decision is not a sound one. As has already been pointed out in a judgment of mine in Sidhayyan V/s. Chinnamathayyan (1936) M.W.N. 212 the phrase taken in execution should be more widely interpreted, as meaning something equivalent to appropriated towards execution or utilised effectively in aid of execution . I have however been also referred to a judgment of Mr. Justice Burn in Crl. R.C. No. 311 of 1936, Ramaswamy Ambalam V/s. Nagasubramanih Aiyar (1936) M.W.N. 1150. In that case, the facts of which are almost precisely similar to the facts before me,. Mr. Justice Burn had to consider what was the meaning of the adjective fraudulently which is found in Section 206, Indian Penal Code. Mr. Justice Burn refused to accede to the proposition that fraudulently means nothing more than dishonestly . If I may say so with respect, he was amply justified in so holding. I may refer in this connection to Section 424, Indian Penal Code which deals with an offence very similar to that defined in Section 206. Section 424 contains both the words dishonestly or fraudulently . It is clear that if the two words mean exactly the same thing, there was no need for only one of them to have been used in Section 206 and for both of them to have been used in Section 424. In the head-note to the case, reference is made to a definition of Sir James Stephen, who says: Whenever the words fraud or intent to defraud of fraudulently occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, first, deceipt or an intention to deceive or in some cases mere secrecy.

(2.) ON the facts of the present case, there is no deceipt, there is no intention to deceive and there is no secrecy. All that has happened is that in order to forestall the action of the Court the accused are said to have gone openly to the field in question and harvested the crops. Their action is undoubtedly dishonest, if the prosecution evidence is to be believed, but it is not fraudulent within the meaning of that word as given by Sir James Stephen and as applied in the ruling in Ramaswamy Ambalam V/s. Nagasubramania Aiyar (1936) M.W.N. 1150. I am therefore of opinion that although the reason given by the Sub-Magistrate for refusing to entertain the objection of the petitioners in this case is not a correct one, the Magistrate's order, is after all correct for the other reason which I have applied. In the result, this revision petition is dismissed.