Bansidhar and Another vs Emperor

Varma, J.—The petitioners have been convicted under Rule 81(4), Defence of India Rules, read with Section 3, Bihar Cotton Cloth and Yarn Control Order. The charge against them was that they failed to give cash memo to purchasers Mannu Modi, Govind Modi and Masudan Modi for purchases made by them and thereby committed an offence under Rule 81(4), etc. The date of the occurrence in the charge is 13th February 1945. The prosecution story is that an Assistant Sub-Inspector of Police on getting some report came near the shop of the petitioners and noticed a bullock cart loaded with six bags of cloth said to belong to Mannu Modi of Parsada. The cart was standing in front of Benarsi Modi''s shop. The Assistant Sub-Inspector demanded the permit of the Sub-divisional Officer and the cash memo. Mannu Modi could not produce them. Then the Assistant Sub-Inspector seized the cloth in the presence of Benarsi Modi, prepared a list and then took him to the police-station. The Sub-Inspector visited the shop on 14th February 1943. He found that three cash memos were issued. He also got from the petitioners three permits, Exs. 7, 8 and 9 and this was between 8 and 9 A.M. in the morning of 14th February. The date of occurrence is said to be the previous day between 8 and 8-30 P.M. The learned first Additional Sessions Judge has pointed out certain illegalities in the procedure and recommended that the conviction and sentence should be set aside.

In fact he points out that the charge was defective but he himself does not attach much importance to that defect. But then he lays emphasis upon the fact that seizure was by a person not authorised by the law and that the examination of Bansidhar u/s 342, Criminal P.C., through a pleader was not proper. But apart from these grounds, what strikes me is that the condition of the licence, for infringement of which the petitioners have been convicted, runs as follows:

All licensees (except holder of hawker''s licence) shall issue to every customer a correct receipt--cash or credit memo, or invoice, as the case may be, in which is set forth clearly the name, the licence number, police-station, subdivision and district of the licensee as well as the quantity of cloth and/or yard sold, the rate charged, the total amount charged and the date of transaction. A duplicate of each such receipt, memo, or invoice shall be maintained and made available for inspection when required.

Can it be said that the condition has not been satisfied? The trial Court has observed in his judgment:

It is admitted that the three cash memos Exs. 4, 5 and 6 were issued next morning in accordance with the permits granted by the S.D.O. Exs. 7, 8 and 9. I have examined the three cash memos and I find that as usual, details of each kind of cloth, their quantities and rate of each have been mentioned therein and in fact it must have taken some time to write them out, as each cash memo occupies the whole of a half paper of fool-scape size, perhaps larger. The accused had pleaded that the three dealers were supplied cloth in accordance with the S.D.O.''s permit, and as there was great rush and much work to do, the cash memos could not be issued in the night and they were issued next morning. It is admitted that out of the three dealers, who were supplied the cloth, two remained behind to take the cash memos (which were really Bijaks) and only one, viz., Mamu Modi, was carrying the cloth when he was caught by the police.

Later on he says,

the facts indicate that the offence has really been of a technical nature and so I take a lenient view of what they have done.

Now, it is not clear as to how long before the police arrived on the scene the transactions had taken place. On the back of the permits themselves there is a sort of receipt noted. The learned Magistrate himself admits that it was a fairly large transaction and the making out of the cash memos must have taken some time. He, however, says that a technical offence has been committed. But he has lost sight of the fact that when two of the traders remained behind to take the cash memos, the idea was to get them from the petitioners, and it must also be remembered that the arrival of the police must have disturbed the routine work of the shop. The only element upon which stress has been laid in the judgment and by the Government Pleader before me is that the cash memos were not handed over that very night, and for that the coming in of the Assistant Sub-Inspector of Police, who, as the Judge points out, has not been proved to be one of the officers authorised to "take steps in such matters, must have contributed towards the delay. The learned Magistrate himself observes that an offence under Rule 81(4), Defence of India Rules, may be of two kinds, (1) deliberate and dishonest refusal to grant a cash memo and (2) failure, which is not dishonest or deliberate under certain extenuating circumstances.

He observes that the present case appears to be of the second kind. So, according to the learned Magistrate there was no dishonesty in issuing cash memo and the papers of the shop were found in order.

The only fact that could have brought the petitioners within the mischief of the rule was the delay in granting the cash memo, and that delay may well have been caused by the intervention of the Assistant Sub-Inspector at the time or immediately after the transaction took place. In any case, this is not a case in which a conviction should have been recorded against the petitioners. Section 95, Penal Code, may well have been utilised in this case.

Therefore, agreeing with the views of the learned Judge, and chiefly on a consideration of the facts mentioned above, I would allow this application, set aside the conviction and sentences against the petitioners and direct that the fines, if paid, be refunded.