IN RE: B.R. VENKATACHALAPATHI CHETTER Vs. STATE

JUDGEMENT

(1.) PETITIONER No. 1 is the father of petitioner, No. 2. They are carrying on business in pulses at Salem. On 9th December 1967 the, want to Bangalore and entered into a transaction for purchasing one lorry load of peas -dhall from one firm called Habib Latif through its canvassing agent P.W.1. They are said to have represented on that day to P.W.1 that they would send the price by draft on receipt of the goods at Salem. P.W.2, the petitioner's agent hired a lorry and transported the bags to the petitioner. P.W. 4 came with the credit bill Ex.P.1 and contacted the petitioners in a cinema theatre. There they asked him to take the lorry and unload the bags in their godown. The bags were an loaded petitioner No. 1 gave Rs. 100 to P.W.4., P.W.4. wanted an acknowledgment. petitioner No. 1 told him that he would send it direct to the consignor. Then P.W.4 left the place. P.W.1 called upon the first petitioner over the phone and asked him about the amounts due. The latter told him that he would send it the next day. But it was not done. P.W.2 again came to Salem and tried to contact the first petitioner over the phone, but he could not get at him. Thereupon Ex.D.1 letter was written on 20th December 1967 calling upon the petitioners to pay the amount due for the goods supplied. On 25th December 1967, Ex. D.2 letter was sent with the same recitals. On 31st December 1967 a third letter Ex.D.3 was sent. There was no payment. Ex.P.3 telegram was sent on 3rd January 1968. Enclosing a copy of the bill Ex.D.5 registered letter was sent. Eventually Ex.P.6 notice was issued on 17th January 1968, through their advocate. By Ex.D.7 dated 20th January 1968, the petitioners repudiated their liability. This was reiterated in their detailed reply Ex.P.8 on 25th January 1968 and in it they stated that they did not have any transaction with Habib Latif. Finally, P.W.4, the driver of the lorry, contacted the petitioners. But there was no response. Then P.W.11, the owner of the lorry, gave the complaint Ex.P.20 with the Lorry Owners Association, of which P.W.9 is the Secretary. Thereupon this Secretary gave a petition Ex.P.1, to the Superintendent of Police requesting the latter to take action to obtain the said acknowledgment receipt from the petitioners. In the meantime P.W.4 gave the complaint, Ex.P.11 to P.W.12, the Sub Inspector, on 6th February 1968, The latter registered it as a crime and took up investigation, On 12th February 1968, the first petitioner approached P.W.8, the President of the Salem District Grain Merchants Co amber and requested him to arbitrate in the dispute. On that date he also deposited a sum of Rs. 15000. Five arbitrators were nominated and in the arbitration proceedings, the petitioner No. 1 and the representative on behalf of the firm also participated. petitioner No. 1 admitted receipt of the bags, but contended that the goods received were of a poor quality. On that score he wanted a reduction in the price stating that he had sustained loss. Eventually, the arbitrators directed that the petitioners should pay Rs. 8612 -35 to Habib Latiff in full discharge of the liability, This was less by nearly Rs. 2,000 than the amount mentioned in Ex. P. 1, the credit bill. Petitioner No. 1, paid the amount of Rs. 2001 which was needed for satisfying the claim as stated by the arbitrators However, he refused to sign in the award. Later he sent a telegram attributing fraud to the arbitrators. This resulted in the arbitrators filing O.P. 36 of 1968 on the file of the Subordinate Judge's Court, Salem. These proceedings were pending. In the meantime, on 29th February 1968, the first petitioner was arrested by P.W. 13. Finally, the charges sheet was filed against these petitioners under S. 420 I.P.C. on 12th March 1968. the petitioners in defence stated that their transaction was only with D.W.5. Observing that the goods were obtained by false representation on 9th December 1967, the Additional First Class Magistrate, who tried the case, convicted both the petitioners and sentenced them each to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500. On appeal, the learned Sessions judge, Salem, affirmed the conviction but set aside the sentence of Imprisonment and imposed a fine of Re. 1000 inclusive of the fine already imposed on each of the petitioners. The petitioners contend that the conviction and sentence are not correct.

(2.) THE prosecution case is that the petitioners made P.W.1 part with the bags of pulses in question on 9th December 1967 by falsely representing to him that they would send the amount due for these of bags by a bank draft on receipt of the goods at Salem. The further case is that after receiving the goods they failed to send the amount and refused to acknowledge the receipt of the goods. This circumstance is relied upon for showing that even at the inception the petitioners had no intention of making the payment at Salem by draft on receipt of the goods. This is the cheating attributed to the petitioners, This representation was made, according to the prosecution, on 9th December 1967. The goods were delivered on 10th December 1967. They promised to send the amount by draft. The amount was not sent. P.W.2 had contacted them over the phone on the succeeding Tuesday, To him. the petitioners promised to send the amount bat did not send. P.W.2 came to Salem and made a demand. But there was no response. Whereupon, Ex.D.1 letter was sent on 20th December 1967 by the firm to the petitioners. By this letter they drew the attention of the petitioners to the bill Ex.P.1 for Rs. 10862 -35 and said that the amount remains unpaid bill that day. They further say in this letter that such payment should generally be made within 15 days, and that since it was not made they call upon them to send the amount immediately by draft. There was no reply for the letter. Ex.D. 2 was written on 25th December 1967 making the same demand in the same terms. Ex.D.3 dated 31st December 1967 is the third reminder. These letters refer to the fact that in all cases of supply of goods, the payment should be made generally within 15 days and in the instant case the payment was not so made. Therefore, they want the payment to be made without any further delay. What is important is this. There is no reference in the above letters to any representation having been made by the petitioners on 9th December 1967 at Bangalore to the effect that they would send the amount by draft on receipt of the goods. This is the gist of the offence, and there is no mention about in these letters. On the other hand we see that these letters are in the rural commercial language calling upon the petitioners to make normally within 15 days after receipt of the goods. Therefore, these letters belie the prosecution case regarding the representation said to have been made by the petitioners on 9th December 1967.

(3.) THE learned Public Prosecutor relies on the decision reported in Mahadeo Prasad v. State of West Bengal : A.I.R. 1954 S.C. 724, and contends that the ingredients of the offence under S. 420, I P.C. have been made out in this case particularly in view of the subsequent conduct of the petitioners in refusing even to acknowledge receipt of the goods which were delivered on 10th December 1967. In that case there was material on record to show that on the date when the goods were taken delivery of the accused involved in that case had no funds and as such it was held that from that circumstance it was evident that he could not have had the intention of paying the amount as represented by him on that date. Where the charge against the accused is under S. 420 in that he induced the complainant to part with his goods on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay each against delivery an intention to do so, the fact, that he did not pay would not convert the transaction into one of cheating. In that case, there were circumstances which indicated that on the date when he made the representation ho could not have had any Intention to pay the amount on taking delivery of the goods. But here as I have already Indicated, even by Ex.D.1 to D. 3, the seller -firm does not advert to any such representation made by the petitioners on 9th December, 1967. On the other hand, the seller firm treated it only as a commercial transaction and called upon the petitioners to pay the amount without any further delay, even though in business practice normally and generally they should have paid it within 15 days after the delivery of the goods.