Thakur Das and Others vs Emperor

Allanson, J.

Petitioner 1 has been convicted u/s 420, I.P.C., and sentenced to three months'' rigorous imprisonment and a fine of Rs. 1,000 and the other two petitioners have been convicted u/s 420/114 and sentenced to one month''s rigorous imprisonment and a fine of Rs. 500 each.

The complainant Madhoji is a partner in the firm of Ramji Madhoji at Sambalpur which deals in kendu leaves. The petitioner Thakur Das is a managing partner in the firm of Nathu Bhai-Kharson Das, Calcutta, and Mohan is an agent of that firm. Briefly, the prosecution story is that on the 13th November 1926 the accused Thakur and Mohan came to the complainant and agreed to buy 81,000 bundles of kendu leaves at Rs. 61 a thousand. The leaves were there and then booked in three waggons to Shalimar station, and it was arranged that the complainant should go with the railway receipt to Jharsaguda where Mohan lives and receive payment in return for it. The same evening, at the shop of the accused Kishen at Jharsaguda, the money, Rs. 4,947, was counted out, and the complainant endorsed the railway receipt in Mohan''s name. Mohan took it, and left the place with Thakur, saying Kishen would pay the money. Kishen then refused to do so. Next morning, after returning to Sambalpur, the complainant wired to the District Traffic Superintendent to detain the goods as there had been a breach of contract. He says he also wired to the Jharsaguda police, but there is apparently no evidence beyond his statement on this point.

The complainant then went back to Jharsaguda, and on his way to the police station met the accused, and Thakur Das asked him not to go to the police as they would pay the money. By arrangement they all went that evening to the shop of one Ramji Pursottam, Kishen gave Ramji a bundle of notes saying they amounted to Rs. 4,947. The complainant signed a receipt which is an exhibit in this case, and gave it to Thakur. The complainant waited for the money, but one after another the others left the place. Ramji then refused to pay. In fact it was a repetition of the scene of the previous day with a change in the role of the person who held the money. The complainant returned next day to Sambalpur, but it was too late to file a complaint, and so he did so on the 16th. The charges against the accused are in relation to the incident of the 13th.

The defence is that in the preceding Asar the complainant''s firm had contracted with the accused''s firm to supply 120,000 bundles at Rs. 24-8-0 a thousand; that on the 3rd September 500 empty gunny bags were sent by the accused''s firm to the complainant; that on the 19th October one waggon containing 32,000 odd bundles in 162 sacks were delivered. Thakur came to Sambalpur on the 13th November to expedite the delivery of the other bundles. The leaves that had been loaded were found to be of inferior quality. Premji, the complainant''s nephew, agreed to consider a, reduction in price. The railway receipt was delivered to Mohah at Jharsaguda and the complainant said that he would return next day with Premji to settle the matter. On the 14th Ramji Pursottam was asked to settle the rates. The sum settled was Rs. 1,845-8-0. The complainant and Mohan settled up the old accounts, and Rs. 2,120-8-0 was paid to the complainant and the receipt (Ex. C) executed by the complainant. This receipt is in Gujerati, the complainant''s own language, and was admittedly signed by him. It runs as follows:

Rai Bahadur Mohanlal of Jharsaguda written by Ramji Madhoji of Sambalpur, The bargain of leaves between you and us up to date have been delivered to you completely and have received the accounts of the same with annas pies in full. We have nothing to do now, and 394 bags have been filled and sent to Shalimar from Sambalpur, in 3 waggons on Saturday 13th November 1926, and have received the account of the same in full to-day dated 14th November 1926, Sunday, Sambat 1983 of Kartik Sudee 10. Signed Chuni Lal Kathiawadee. Signed Ramji Madhoji himself, dated 14th November 1926. Witness--Signed Ramji Pursottam himself.

Bhagirath, one of the two persons who had supplied the complainant with the leaves, demanded payment of his dues from the complainant. Ramji stood surety on the complainant depositing with him Rs. 1,845. After this amicable settlement each side agreed to pay Rs. 101 Goshala fund, and most of the persons present including the complainant, went to a party at another firm''s premises.

The following facts are either admitted or are supported by reliable documentary evidence; the sending of the empty gunny bags in September, the despatch of some leaves by the complainant''s firm to the Calcutta firm in October, the loading of the waggons at Sambalpur on the 13th November, that complainant handed over the railway receipt at Jharsaguda to Mohan, that there was no payment then, that a telegram was sent by the complainant to the District Traffic Superintendent next morning, and that there was a meeting at Ramji''s house on the evening of the 11th when the complainant signed and'' handed over the receipt (Ex. C).

Certain considerations present themselves in view of the respective cases of the parties. If the complainant''s story is true, then the only possible motive the accused could have had was cheating pure and simple. In fact they successfully played a kind of confidence trick on the complainant on two successive days. It is difficult to understand how the complainant, after he had been cheated on the 13th over the railway receipt, a fact which he found out at once, should have allowed himself to be cheated in exactly the same way over the receipt (Ex. C) on the next day. It is also difficult to understand how on each day the accused Thakur and Mohan should have been able to enlist the active assistance of a different shopkeeper in their cheating. The charge relates only to the occurrence at Kishen''s shop on the 13th; but clearly on the prosecution story and on the findings of the Courts below there was also cheating of a similar kind at Ramji''s shop on the 14th, for which the accused Thakur and Mohan and also Ramji could have been put on their trial. For the details of the cheating on the 13th we have to depend practically only on the complainant''s evidence. I will refer later to the evidence of the chance witness Abdul Rahim. The trial Court has remarked as follows about the complainant''s manner of giving evidence. Referring to a number of contradictions in the complainant''s statement, the Court remarks that they

merely show his reluctance to exercise his mental faculties quickly and a habit of pleading lapse of memory when, with a little effort, he could reproduce memories which he later did on insisting in cross-examination. It is a case of perverse mentality without there being a deliberate intention to perjure.

The Courts below have written lengthy judgments and discussed in detail the evidence of the prosecution and defence witnesses. They have found that it has been proved that the market rate of leaves on the 13th November was about Rs. 61; that the price was settled at Rs. 61 for the three waggon loads; that there was no talk about the inferiority of the leaves; that there was no earlier written contract to supply leaves at Rs. 24-8-0; that the accused dishonestly induced the complainant to hand over the railway receipt by promising to pay him there and then; and that the story of payment of Rs. 2,000 odd on the 14th, of which Rs. 1,845 were deposited with Ramji, is false. The learned Government advocate contended that these are findings of fact, and that this Court should not interfere in revision with findings of fact merely because after examining the evidence, the Court might be inclined to take a different view of that evidence than that taken by the Courts below.

This is a proposition with which I am in full agreement. But as a result of the considerations mentioned above, I have thought it necessary to examine the evidence. The case is not an ordinary one, because there can be no doubt whatever that the two firms have had recent dealings with each other in these leaves. There may have been a breach of contract or even sharp practice on one side or the other, but for such disputes regarding contracts the most convenient forum is the civil Court; and I have thought it necessary, in the interests of justice, especially in view of the trial Court''s criticizm of complainant''s manner of giving evidence, to peruse the evidence to see if it establishes beyond reasonable doubt that on 13th November the complainant was induced by the dishonest acts of the accused to hand over the railway receipt.

The complainant''s answers in cross-examination were again and again disingenuous and as the lower Court says showed mental perversity. It must be remembered that the defence is that the complainant''s firm had arranged to supply a number of leaves at a certain rate and that before delivery of the greater part of the goods there had been a considerable rise in the price of the leaves. I give below an extract from the complainant''s cross-examination on this point of previous transactions:

Before 1926 I had no transactions with Nathu Bhai Kishendas, I cannot recollect if I had any transactions with them before November 1926. Without reference to my books I cannot contradict you if you say that I had transactions with Kishendas before Nathubhai Kishendas nor can I tell the terms of any such transaction. I cannot toll if I had. contracted with Nathubhai Kishendas in Asarh for l20,000 bundles of leaves, nor can I tell if I had contracted with him for Rs. 24-8-0. I do not know if I had any other transactions with Rai Bahadur Mohan before November 1926, I cannot recollect if I had contracted with him for 120,000 bundles in Asarh at Rs. 24-8-0. I cannot contradict any such statement. I do not recollect the details of any such transactions.

The following is another extract:

I did not know the firm of Nathubhai Kishendas. Exhibit A is in my handwriting. It was written to Nathubhai Kishendas. I said that I did not know Nathubhai Kishendas as I thought I was asked whether I knew the persons going by the name of Nathubhai Kishendas.

To Court--My brother might know about it.

It is obvious that the witness must know about these transactions, which apparently he will neither admit not deny. Why he cannot absolutely deny them is because of a document like Ex. A, and because of the evidence regarding the receipt of empty gunny bags by his firm from the Calcutta firm in September. From his prevarication there can be no doubt that there was some kind of contract between him and Nathubhai''s firm before the 13th November. Neither side, has been able to produce any documentary evidence as to the actual terms of that contract; nor, of course, is there any documentary evidence of the alleged contract of the 13th November. If there was a contract earlier in the year to supply leaves at a particular rate, and if, as has been proved beyond any doubt, there was a very great rise in the price of the leaves during the latter part of the year, a reason for a dispute between the parties is at once apparent.

The only witness, besides the complainant, to the incident at Kishen''s house on the 13th November is Abdul Rahim. He is a clerk in the executive engineer''s office at Sambalpur. He wont to Jharsaguda on the 13th November, and as he was walking along the road he saw the complainant and the three accused in the accused Kishen''s shop; he saw the complainant writing, something; Thakur took a paper from the complainant''s hand; complainant said that he was taking away the paper without making payment; Thakur said that Kishen Was counting the money and he Would get it; Kishen was counting the money; some four or five minutes later. Thakur and Mohan went away; complainant asked Kishen to pay the money; Kishen said he had already been paid; the complainant protested and Kishen threatened to insult him. The witness then went away. Both the lower Courts considered that he is a respectable witness, and that he had no motive to speak falsely, as he had no connexion with either party. This witness may be speaking the truth, but unfortunately he presents the typical characteristics of the chance independents witness. He is not mentioned in the complaint and the complainant says that he does not know him; he happens to be passing along the road and sees and hears the above. It is not clear how the prosecution came to know of this witness who was not known to the complainant. According to his own account he stayed listening several minutes. He says he did not know any of the accused before. Why he should have stopped several minutes on the road to listen to a conversation in a shop between persons whom he did not know is not apparent.

Comment was justifiably made on the absence from the witness-box of the complainant''s nephew Premji. This is not the Premji who is P.W. 7, whose evidence is of little or no value to either side. A Premji is named as a witness in the complaint. The complainant says that Premji is not a partner in his firm, but only a servant. He is, however, the son of one of the three brothers who form the firm. The complainant admits that he and Premji look after the business. The complainant says that Premji was in his (complainant''s) shop when Thakur and Mohan came on the 13th, and he was a witness to the contract. In regard to Premji''s presence at the loading of the waggons, which is the case of the defence, we have typical prevarication on the part of the complainant. He says as follows:

I myself and Premji got the goods loaded in the waggons. Premji was not present when the waggons were being loaded. Premji was a witness to the contract. I did not examine him on the point as he is a near relation. Premji was near the place whence the goods were being dispatched.

Premji was also with the complainant when he went to Jharsaguda. on the I4th, and was with him when he signed the receipt. There was presumably some reason for not calling this witness, and in view of the complainant''s prevarications regarding any earlier contract it is probable that awkward questions might have been asked of Premji, and so he was not examined.

That the complainant thought himself aggrieved over the events of the 13th is indicated by his telegram to the District Traffic Superintendent. But for the reasons already given, I am entirely unable to believe the prosecution story of what happened on the 14th. If the prosecution story is true, the incident of that day amounted to far more serious cheating than the incident of the 13th, and it took place in the presence of a number of witnesses. If, however, the story about the 14th is false, grave doubt must be thrown on the truth of the prosecution story of a similar incident on the 13th. The complainant is no fool; that is apparent from his cross-examination, and I am unable to believe that, after he had been cheated on the 13th in the way described, he should have allowed himself to be cheated in exactly the same way on the 14th. The receipt signed by him on the 14th is utterly inconsistent with the prosecution story. This is not a case of swindlers going round and cheating traders by posing as agents of other firms. There had been previous transactions between the two firms, and it seems improbable that Thakur Das should have come up from Calcutta with the express purpose of cheating the complainant in this way. Owing to the curious circumstances of this case I have had to give it the most careful consideration, especially in view of the fact that the Courts below have discussed the evidence at very great length. It is probable that neither party has told the whole truth, and that a serious dispute arose between them over a contract. It is true that it is difficult to understand how, if the defence story is true, the complainant should, two days later, have filed his complaint; but this difficulty is after all no greater than the difficulty of believing that the complainant could have allowed himself to be cheated on two successive days in the way he has described, and on the second occasion with his eyes open. The dispute between the parties seems to be of a civil nature, and, in my opinion, the convictions on a charge of cheating are unsustainable. The complainant has pleaded ignorance of important matters which must be within his knowledge. His deposition which I have read carefully, shows him to be a thoroughly unreliable witness.

This application is allowed and the conviction and sentences of the accused are set aside.

The fines, if paid, should be refunded.