Sohan Mundari and Others vs Emperor

Fazl Ali, J.—The petitioners have been convicted u/s 424, I.P.C. and sentenced to two months'' rigorous imprisonment and a fine of Rs. 50 each.

The facts of the case are briefly these One Gobardhan Sahu brought a money suit (No. 7 of 1925) against the petitioner Sohan and his uncle Golga Mundari. The suit was decreed against Golga only but it was dismissed against Sohan. Gobardhan proceeded to execute his decree against Golga and in execution of the decree he got certain crops attached. It may be mentioned that Golga has been away in Assam for the last eight or nine years and it is not disputed that the crops in question had been grown by the petitioner Sohan. Now the prosecution case is that after the attachment Sohan removed the crops and appropriated them. On-these facts Sohan was tried for an offence u/s 424 I.P.C. and convicted; and it is against this conviction that the present application is directed.

It is contended by the learned Counsel for the petitioner before me that a conviction u/s 424, I.P.C. is wholly improper on the admitted facts of the case. It is said that the accused persons cannot properly be convicted u/s 424 without there being a definite finding as to their dishonest intention. In this particular case it appears that neither the trial Court nor the lower appellate Court has found definitely in what manner the accused persons may be said to have acted dishonestly. It must be remembered that they cannot be said to have acted dishonestly unless their intention was to cause wrongful loss or wrongful gain. The question which therefore arises in this case is, in what way the accused persons intended to cause wrongful gain to themselves and wrongful loss to some other person and, if they intended to cause wrongful loss to some other person, who that person would be? It is true that there are some reported cases where it has been held that a judgment-debtor whose standing crops were attached having harvested them while the attachment was in force committed the offence u/s 424, I.P.C.; see Queen Empress v. Obayya [1899] 22 Mad. 151, and Queen Empress v. Daya Karsan [1899] 1 Bom. L.R. 515.

What distinguishes those cases from the present is that in those cases the accused was a judgment-debtor and the Courts had no difficulty in coming to a finding that he removed the crops with intent to cause wrongful loss'' to the creditor. In this particular case the accused who has admittedly grown the crops is not a judgment-debtor and it was definitely held in the money suit that he was not liable for the amount in respect of which the suit had been brought. It is also in evidence that the petitioner Sohan has filed a, claim case contending that the crops in question could not be legally attached and the fact remains that he may yet succeed in showing in the claim case that the present crops were not liable to be attached.

In these circumstances it is difficult to hold that he removed the crops with intent to cause a wrongful loss to the decree-holder. As to whether there might be any wrongful gain to himself it may be urged that he was gaining an advantage by taking away the crops when the attachment was subsisting. The reasoning, however, appears to me to be rather far fetched and at any rate when a particular kind of intention is an important ingredient of the offence, I should be reluctant to convict the accused of that particular offence unless there is a clear finding in the judgment of the Court below that the accused acted with that particular intention or unless the intention was clearly established on the evidence. In this case neither the prosecution nor the Courts below have devoted their attention to the question as to how and in what manner the intention of the accused was dishonest in the sense in which the word has been used in the Penal Code and it is therefore difficult to uphold the conviction of the petitioner u/s 424, I.P.C.

The learned Counsel for the petitioners has cited before me the case of Khushi Bam v. Emperor AIR 1921 Lah. 185. In that case the accused was convicted u/s 424, I.P.C. for dishonestly removing certain property from a shop upon which were the padlocks of K B and M B, the widows of one J D and it appeared that he removed the property probably at the instance of M B who claimed to be entitled to the whole of it. The accused moved the High Court against his conviction; and it was held that his conviction u/s 424 was not proper. It was pointed out that if eventually it be decided that K B was not entitled to a share in the property it would follow that the accused''s action in removing the property from the locked shop was not a dishonest one; for if the property belonged wholly to M B then its removal was not done with any intention to cause wrongful loss to K B or wrongful gain to M B. On the same lines it is contended by learned Counsel in the present case that if eventually it be decided in the claim case that the property was not liable to be attached and that the petitioner Sohan was entitled to the crops, then the crops could not be considered to have been removed with the intention to cause wrongful loss to the decree-holder. In my opinion the contention is a sound one and must prevail.

I would therefore allow this application and acquit the petitioners of the offence u/s 424, I.P.C. and set aside the sentences imposed upon them. I would also direct that the fines if paid by the accused will be refunded and that the bail bonds will be cancelled.

I may observe here that by setting aside of the conviction of the petitioners u/s 424, I.P.C. I do not mean to suggest that in removing the crops they committed no offence whatsoever; but I am at present concerned only with the question whether the conviction u/s 424 is proper or not and, in my opinion, this offence has not been committed by the petitioners.