Janki Das Marwari vs Mangi Lall Bajrang Lall

Courtney-Terrell, J.—This is an appeal from an order of the District judge of Monghyr, directing a complaint against one Janki Das Marwari for having committed an offence under S. 69 (C) (2) Provincial Insolvency Act. This person together with his two sons Durga Dutt and Srinibas filed a petition for insolvency on 5th January 1932. A receiver was appointed who went to the house of Janki Das and made an inventory of the properties found there. When he entered the house it appears that some four ladies were in occupation. He searched the house and discovered certain articles some of which have been claimed by one of the ladies as her own stridhan property.

Now, the petition for insolvency lodged by Janki Das Marwari set forth the particulars of his assets amounting in all to a total sum of Rs. 564. Part of this was indebtendness to the appellant, part of it was house property and part of it was shop property. He also set forth a list of creditors, the total amount of his indebtedness being some Rs. 16,000. When the receiver went to the house he found that there were a large number of odds and ends of miscellaneous property, a large, proportion of the property discovered by the receiver consisting of clothing and having regard to the number of women in the house and the nature of the clothing it is not surprising that such property had been found there and it is hardly property which the insolvent can have been expected to disclose in minute detail. The judge agreed that as regards certain articles of jewellery found, these were in all probability the property of the lady who claimed them and that there was no evidence that it was the property of the insolvent or that the insolvent had concealed it. In the possession of one of these ladies was a slip of paper being a receipt for money supposed to have been given by her to her brother and the receipt is in the name of the lady herself. It is clear that this is not part of the insolvent''s property or if so it has certainly not been shown to be the insolvent''s property. There was also a quantity of cash amounting in all to Rs. 200 odd and this also has not been shown to be the insolvent''s property. Having regard to the position in life of the lady, who has a rich brother, it is not unlikely that her word is to be believed that that money is hears.

The learned advocate, who is supporting the order for prosecution by the District Judge, refers to certain utensils which were found by the receiver. They amount to nothing more than the simplest domestic articles without which the ladies could hardly carry on their domestic existence and the value can be nothing, but of an absurdly trifling amount. There were also a few silver ornaments and I think a silver plate. Now, even if it be assumed, and there is no ground for so assuming that these articles are the properly of the insolvent and even if it be shown that he had not disclosed these in his petition, nevertheless their value has not been shown and their presumptive value is very trifling.

Before directing a prosecution of the insolvent for concealing his assets in the proper exercise of the Judge''s judicial discretion, there should have been some sort of proportion between the value of the property alleged to have been concealed and that of the indebtedness of the insolvent. To take a hypothetical case to illustrate the principle; if the total amount of the indebtedness of the insolvent was say a crore of rupees and if the value of the articles said to be concealed was let us say ten rupees, it would be ridiculous to direct a prosecution of the insolvent for concealing these assets. In other words in the exercise of discretion a proper sense of proportion ought to be exercised by the Judge in directing the prosecution. Here the facts revealed before the Judge and mentioned in his judgment and in the report of the pleader commissioner are not such as would entitle the Judge in the proper exercise of his judicial discretion in directing the prosecution of the insolvent.

The order therefore directing a complaint will be set aside.

Dhavle J.

I agree.