Narsing Das Modi vs Emperor

Shearer, J.—The petitioner, Narsing Das Modi, is a cloth merchant of Cuttack and has been convicted for having sold small quantities of cloth to each of two customers at a price in excess of the controlled price It is admitted that the cloth in question was actually handed over to the customers and the money for it received, not by the petitioner but by a salesman of his, one Kanhaya Lal. It is also admitted that on 4-7-1944, when the sales took place, the petitioner was not in his shop, and, indeed, was not in Cuttack and had not been in Cuttack for same time previously. It is contended that on this ground the conviction was wrong and must be set aside In Halsbury''s Laws of England, Edn. 2, Vol. 9, para. 4 p. 12, it is stated:

The condition of mind of a servant or agent is not imputed to the master or principal so as to make him criminally liable A master is not criminally liable merely because his servant or agent commits a negligent or malicious or fraudulent act. But in the limited class of oases where u particular intent or state of mind is not of the essence of the offence, the acts or defaults of a servant or agent in the ordinary course of his employment may, make the master or principal criminally liable, although he was not aware of such acts or defaults, and even, where they were against his orders.

Section 12, Cotton Cloth and Yarn (Control) Order, 1948, states :

No manufacturer or dealer shall sell or offer to sell any cloth or yarn at a price higher than the maximum price specified in this behalf under Clause 10.

The word "dealer" which occurs there means.

a person carrying on the business of selling cloth or yarn or both, whether wholesale or retail, and whether or not In conjunction with any other business.

It is quite clear, therefore, that, in law and in fact, although the cloth was handed over to the customers and the money was received by a salesman, Kanhaya Lal, the sales were actually made by the petitioner whose servant Kanhaya Lal was. It is also quite clear that it was not incumbent on the prosecution to show that either the petitioner or Kanhaya Lal knew that the price which" was charged for the cloth Was in excess of the controlled price The point raised, by the learned advocate for the petitioner was considered by Malik J. of the Allahabad High Court in Harish Chandra Bagla Vs. Emperor, , That learned Judge in a most exhaustive judgment reviewed all the authorities bearing on the point and came to the conclusion that, where a salesman employ, ed by a cloth merchant had sold cloth at a price in excess of the controlled price, the cloth merchant or dealer is criminally liable I respectfully agree with the decision and, in general, with the reasoning by which it was supported.

On behalf of the petitioner, reliance was placed on the decision of Beevor J. in Ram Narain Kedia v. Emperor AIR 1946 Pat. 30. In that case two partners of a firm of cloth merchants were tried and, convicted on a charge of having been in possession of certain cloth which did not bear the requisite marks or stamps. One of the partners was in the shop when the cloth was seized; the other apparently was not and apparently also there was no evidence of the cloth The conviction of the latter was, on this ground , set aside by Beevor J. This case can, however I think quite easily be distinguished When a firm consists of several partners, each one of the partners may no doubt be regarded as an agent of the firm Strictly speaking, however, it was impossible to say in the case which Beevor J. had to deal with that the relationship of principal and agent subsisted as between the partner who was in charge of the shop merely a sleeping partner.

In other words, the maxim respondeat superior which applies in this case The petitioner was in my opinion, rightly convicted, and I would accordingly dismiss this application.

Sinha J.

I agree.