JOSEPH PERRY Vs. OFFICIAL ASSIGNEE OF CALCUTTA

JUDGEMENT

(1.) The insolvent is charged under Section 103A (1) of the Presidency Towns Insolvency Act (III of 1909) with four offenses. I deal now only with the charges upon which he has been convicted and which are the subject of appeal. These charges are (1) that the appellant on the 5th March 1919, fraudulently and with intent to conceal the state of his affairs and to defeat the objects of the Act, purposely withheld the production of his diary for the years 1918 and 1919 and his stock or invoice book, (2) that he, fraudulently with intent to conceal the state of his affairs and to defeat the objects of the said Act on the 7th March wilfully prevented the production of pages 5--22 of his stock book by removing or causing to be removed the said pages from the said book, the said pages and book relating to such of his affairs as are subject to investigation under the said Act; (3) that he, fraudulently and with intent to conceal the state of his affairs and to defeat the objects of the said Act, on the 7th March destroyed his said stock book by removing or causing to be removed therefrom the said pages relating to such of his affairs as are subject to investigation; and lastly (4) that he fraudulently with intent to conceal the state of his affairs and to defeat the objects of the said Act, on the 7th March 1913 wilfully prevented the production of his diary for 1918 relating to such of his affairs as are subject to investigation under the said Act.

(2.) A number of objections have been raised as regards the form and nature of these charges and to the formal findings thereon.

(3.) It was argued that Section 103 does not contain words as the Provincial Act does (Section 43) shewing that the offences there mentioned may be committed before or after the adjudication. I may say at once that I thick there is no substance in this point. But then it is said that the books the subject of charges (2) and (4) were produced and taken possession of by the Official Assignee on the 6th March and, therefore, it cannot be said that the insolvent prevented their production. The actual prevention is said to have been effected by removing the said pages of the stock book and, apparently, stealing the diary on the following day, the 7th March, at the Official Assignee s office after possession made over to the Official Assignee. Charge (3) is also, it is said, bad because the destruction there mentioned is a form of prevention or withholding, the words being " destroyed or otherwise wilfully prevented". It is, therefore, said that the destruction referred to in the section is destruction before the document has been produced before the Official Assignee and not the alleged destruction (as is here said to have taken place) in the Official Assignee s office after he had taken possession of the books. It is said that these acts may constitute the offences of mischief and theft under the Penal Code but are not specific insolvency offences. If the books were in fact produced having been taken possession of by the Official Asignee, it cannot, it is urged, be said that they were withheld from the Official Assignee or that their production was wilfully prevented. I am not prepared to uphold this construction of the section. In this case, it is to be observed there was an alleged withholding on the 5th March and the books were never produced by the insolvent but were seized upon on search by the Official Assignee. It would not, I think be reasonable to hold that if books were withheld on the 5th, and were taken possession of by the Assignee on the 6th at a search and were made away with by the insolvent* in the office of the Official Assignee before the latter even saw them, that no offense was committed under the Act. Moreover, objections which may have some force as regards the word "Withhold" are without them as regards the word "Destroy."