Munshi Ashrafur Rahaman vs Munshi Rafikur Rahaman alias Moyna and Others

Shamsuddin Ahmed, J.—The application is directed against order dated 16.12.85 passed by the learned Executive Magistrate, Arambagh in Misc. case no. 161/77 u/s 145 of the Cr.P.C. On 17.11.77 the Id. Executive Magistrate attached the disputed land and opposite party no. 3 and Anr. was appointed receiver and thereafter opposite party no. 4 Bishnupada Pal was also appointed receiver. On 19.10.84 the Id Magistrate decided that the petitioner was in possession of the disputed property on the date of the proceeding and was entitled to retain such possession until ousted by due course of law. The petitioner filed an application before the Id, Magistrate for direction for payment of different amount to him by the receivers. The ld. Magistrate issued notice and his prayer was allowed by the Id. Magistrate. The ld. Magistrate issued notices by registered post to opposite parties 1 and 3 and asked opposite party no. 4 to pay Rs. 54,000/- being the value of different kinds of products received by him from the scheduled land upto 1983. On 27.9.85 the petitioner filed an application for taking proper steps against the opposite parties for not complying with the order of the ld. Magistrate. On the said application, the ld. Magistrate passed the impugned order. The Id. Magistrate held that as it was a fact that both, the receivers referring to opposite parties 3 and 4 have misappropriated the entire produce during the period of their receivership one of them has submitted accounts but not delivered the same, while the other has submitted no account. Accordingly he directed the petitioner to take shelter before the Civil Court under Order 40 Rule 4 of the C.P.C. He also directed the petitioners to lodge a complaint against the receiver. Under the Contempt of Courts Act. The petitioner has challenged this order passed by the Ld. Magistrate. Mr. Dey appearing for the petitioner ''has submitted that the order passed by the ld. Magistrate'' is on the face of it bad in law. In a proceeding u/s. 145 Cr.P.C. the ld. Magistrate is empowered to attached the subject of dispute and to appoint receiver u/s. 146. Power of appointment of receiver is with the ld. Executive Magistrate before whom the proceeding u/s. 145 is pending. Since the ld. Magistrate has the power to appoint a receiver he has also power of control over them and also to pass necessary direction on them. In the instant case opposite party no. 3 Dr. Munshi Afzalur Rahaman has appeared and took time for making payment to the petitioner. Time was granted to him. He also submitted accounts before the Id. Magistrate. It has been submitted by the ld. Advocate for the petitioner Mr. Dey that he has no further claim against opposite party no. 3. Accordingly no further direction is necessary to be passed on opposite party no. 3 excepting that he is discharged from the office of the receivership after making full accounts. The allegations against opposite party no. 4 Bishnupada Pal remains. The Id. Magistrate decided that he should pay Rs. 54,000/- to the petitioner as value of produce he received during his tenure as receivership. Opposite party no. 4 has appeared and stated that he never took charge of the property, but he has not challenged the order passed by the Id. Magistrate directing him to deposit the aforesaid amount. Therefore it is not open to this Court at this stage to entire into that question. It has to be accepted that opposite party no. 4 has not challenged the order passed by the id. Magistrate directing him to make payment. The ld. Magistrate by the Impugned order directed the petitioner to go to the Civil Court and to take recourse Order 40 Cr.P.C. The question is whether the order passed by the ld. Magistrate is a proper order. I have already noted that power of appointment is with the ld. Magistrate and he has made the appointment. In the instant case he has also directed opposite party no. 4 to make payment of Rs. 54,000/- to the petitioner.

Let us now see if the Criminal Procedure Code has made any provision authorising the Id. Magistrate to realise the amount directed to be paid by the opposite party. Section 431 of the Cr.P.C. provides that money ordered to be paid is recoverable as a fine. It provides that any money (other than a fine) payable by virtue of any order made under this code and the method of recovery of which is not otherwise expressly provided for shall be recoverable as it was a fine. In the facts and circumstances of the case the provisions of Section 431 are clearly attracted. Proviso to this section has no application on the facts of this case. Ld. Magistrate is, therefore, made a patent error directing the petitioner to take recourse to Civil Court for recovery of the amount due to him by the receiver. He himself is authorised u/s. 431 to recover the amount which he himself has directed to be paid by opposite party no. 4 Bishnupada Pal. Accordingly, the impugned order passed by the Id. Magistrate is set aside. He is directed to proceed to recover the amount from opposite party no. 4 Bishnupada Pal in accordance with section 431 of the Cr.P.C. Mr. Dey has also submitted that in the facts of this case the Id. Magistrate can also lodge a complaint for prosecuting the opposite party no. 4 for an offence of criminal breach of trust u/s 406 of the I.P.C. Ld. Magistrate is also directed to consider this aspect of the matter and decide if such a complaint can be made him.

This application is accordingly disposed of.