MAHADEO PRASAD Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal by special leave from a decision of the High Court of Judicature at Calcutta upholding the conviction of the Appellant under Section 420 of the Indian Penal Code and the sentence of one year's rigorous imprisonment passed upon him by the Additional Presidency Magistrate of Calcutta.

(2.) The Appellant agreed to purchase from the complainant Dulichand Kheria 25 ingots of tin on the 5th May 1951. The complainant had in his stock 14 ingots only and purchased 11 ingots from the firm of M. Golam Ali Abdul Hossain. These 25 ingots were to be delivered by the complainant at the guddi of the Appellant and it was agreed that the price which was fixed at the rate of Rs. 778 per cwt. and amounted to Rs. 17,324/12/6 was to be paid by the Appellant against delivery. The Jamadar of the complainant went to the Guddi of the Appellant. The Appellant took delivery of the ingots but kept the Jamadar awaiting and did not pay the price to him. The Jamadar waited for a long time. The Appellant went out and did not return to the Guddi and the Jamadar ultimately returned to the complainant and reported that no payment was made though the ingots were taken delivery of by the Appellant. The complainant who was induced to part with these 25 ingots of tin by the Appellant's promise to pay cash against delivery realised that he was cheated. He therefore filed on the 11th May 1951 his complaint in the Court of the Additional Chief Presidency Magistrate, Calcutta charging the Appellant with having committed an offence under Section 420 of the Indian Penal Code. The defence put up was that the Appellant had no intention whatever to swindle the complainant, that the transaction was on credit and that the story of the promise to pay in cash was introduced by the complainant to give a criminal complexion to the case. It was alleged that the Appellant went of his own accord to the complainant 7 or 8 days after the transaction in order to settle the money to be paid in view of the fluctuations in the price of tin in the market and was arrested at the place of the complainant while he was thus negotiating for a settlement.

(3.) It transpired in the evidence that the Appellant had an overdraft account with the Bank of Bankura Ltd. in which account he had overdrawn to the extent of Rs. 46,696-12-9 as on the 4th May 1951, the overdraft limit being Rs. 50,000/-. On the 5th May 1951 the Appellant hypothecated with the bank 70 ingots of tin as additional cover against the overdraft account. There was no satisfactory evidence to show that these 25 ingots of tin which were taken delivery of by the Appellant from the Jamadar of the complainant were included in these 70 ingots which were thus hypothecated with the bank on this date. There was however sufficient evidence on the record to show that on the 5th May 1951 when such delivery was taken by the Appellant he had not with him any assets beyond the margin of the overdraft account to the extent of Rs. 3,303-3-3 which certainly would not go a long way towards the payment of the price of these 25 ingots. The question to be determined by the Court of the Additional Presidency Magistrate was whether having regard to the surrounding circumstances it could safely come to the conclusion that the Appellant had no intention whatsoever to pay but merely promised to pay cash against delivery in order to induce the complainant to part with the goods which otherwise he would not have done. The Additional Presidency Magistrate, Calcutta held that the charge against the Appellant was proved and convicted him and sentenced him as above. The Appellant took an appeal to the High Court against this conviction and sentence passed upon him. The High Court dismissed the appeal and confirmed the conviction and sentence passed upon the Appellant by the Additional Presidency Magistrate, Calcutta.