SANTOSH KUMAR CAPOOR Vs. STATE OF U.P.

JUDGEMENT

(1.) SANTOSH Kumar Capoor, son of Late H.R. Capoor, resi­dent of Lucknow, has been convicted and sentenced under Sections 420 and 406 I.P.C. to undergo R.I. for one year and two years and a fine of Rs. 10,000/-. It means that on each of the two counts the appellant has been made to pay a fine of Rs. 5000/-. Facts giving rise to the conviction of the appellant, briefly stated, are these:

(2.) THERE is K.N. Govt. College at Gyan­pur. In the year 1960, Dr. Jhamman Lal Sharma was the Principal of this college. The college required two re­frigerators one for Botany Department and another for Zoology Department. Consequently quotations were invited. M|s. Industry and Finance, Capoors Hotel, Hazratganj submitted quotation Ex. Ka. 3. on January 29, 1960. In this quotation the particulars of refrigera­tors (called Capfrige) and their prices were mentioned. The quotation further indicated guarantee that the sealed units would have a guarantee of two years and the entire refrigerator would carry a guarantee of one year with free ser­vice. The quotation added that the ma­chines were fitted with imported refri­geration controls. The quotation further indicated that M/s. Industry and Finance were the manufacturers of Capfrige re­frigerators. The quotation of this firm was accepted by the college. The Firm then supplied two friges to the college and sent two bills dated March) 21, 1960 Ex. Ka. 27 and Ka. 28 for Rs. 2069.50 each. The college made payment of both the bills. The firm then issued re­ceipts dated March 26, 1960 Exs. Ka. 1 and Ka. 2. In March 1960 Dr. Onkar Nath was Professor, i.e. Head of the Department of Zoology. He received one of the refrigerators on March 24, 1960 (vide endorsement on the bill Ex. Ka. 28). Dir. Anant Pnasad Mehjratra was Professor i.e. Head of the Department; of Botany. He took the other frige on March 23, 1960 vide endorsement on the bill Ex. Ka. 27.

(3.) THE two refrigerators worked for a very short time. In April 1960 it was detected that they were not working well and their cooling system was de­fective. Consequently, Dr. Onkar Nath Srivastava approached the appellant and the latter promised to send his mecha­nic to set right the refrigerators. But the appellant did not send his mechanic for the purpose. There ensued corres­pondence in writing and Dr. Onkar Nath Srivastava also personally went to the appellant at Lucknow. On June 14, 1963 the appellant gave a letter Ex. Ka. 5 to Dr. Onkar Nath Srivastava that the previous letters were wrongly address­ed and as such had not reached him, that the machines would be set right as desired by him, that the refrigerators be sent to him at Lucknow for repairs and that he would bear half the cost of cartage. At the end he mentioned that the machines would be repaired free of cost. Consequently, on January 23, 1964 Dr. Satish Chand Gupta (P.W. 3) sent the two refrigerators in a truck to Lucknow along with Govind Ballabh Uprety (P.W. 1) a research scholar. He reached at Lal Bagh shop of the firm along with the refrigerators on January 24, 1964. The appellant was not there. His manager told him that the appellant had gone to Delhi to see Independence Day celebrations of January 26. A me­chanic of the appellant, however, gave him receipt Ex. Ka. 6. Govind Ballabh Uprety stayed on at Lucknow and met the appellant on January 30, 1964 at about 11 a.m. Under the instructions of the appellant, his manager wrote re­ceipt of the two refrigerators vide Ex. Ka. 24 on the letter Ex. Ka. 19 of Dr. S.C. Gupta, The appellant did not af­fect repairs and after sufficient corres­pondence and personal visits by Dr. Onkar Nath Srivastava, the two refri­gerators were returned to the college in October, 1965. In the meantime the appellant wrote a letter dated May 1, 1964 Ex. Ka. 16 to the principal of the college that he had sent a detailed quo­tation for the repairing of the two re­frigerators about 2 months back and that he had not heard any thing in the matter. On March 23, 1965 the appel­lant addressed another letter to the Principal Ex. Ka. 17 stating tha he has closed down his shop and that due to certain difficulties the refrigerators could not be repaired. He added that he would repair the refrigerators and send the same after repairs positively by April 7, 1965 (Ex. Ka. 17). When the two refrigerators were received in the college on October 29, 1965 it was found that they were not repaired and that their machines had been taken out and that the refrigerators were merely ske­letons. Sushil Kumar (P.W. 2), Proprietor Kumar Electricals, Varanasi hap­pened to be present in the college on that day. He also checked up the two refrigerators at the desire of Dr. S.C. Gupta. He gave his opinion Ex. Ka 26 in writing. He seated that the two re­frigerators were without any machines i.e. motor, compressor, wiring, switches etc., that they could hardly be called refrigerators and that they were not suitable for repairs. Dr. Onkar Nath Srivastava and Dr. S.C. Gupta submit­ted report Ex. Ka. 23 to the Principal on October 29, 1965. The Principal then reported the matter to the police on the same day. The Police then in­vestigated into the matter and submit­ted charge sheet against the appellant. Defence of the appellant was that he was not the Proprietor of the firm, that he was not its partner that his father used to do the work of refrigera­tors that he used to sign in the absence of he father. He asserted that he had not sold the refrigerators to the college. He, however, admitted his signatures on the quotation Ex. Ka. 3, bills dated March 21, 1960 Exs. Ka. 27, Ka. 28, letter dated June 14, 1963 Ex. Ka. 5 and letter dated March 23, 1965 Ex. Ka. 17. He showed complete ignorance in respect of the other allegations of the pro­secution.