STATE OF MAHARASHTRA Vs. ABDUL AZIZ

JUDGEMENT

(1.) THIS is an appeal by the State from an order of acquittal. The material facts lie within a narrow compass and may be briefly set out as follows: There is a Co-operative Society known as Malegaon Powerloom Said Manufacturers Co-operative Association, Ltd. , Malegaon. This Society was registered under the Co-operative Societies Act. The respondent (original accused No. 1) was the Chairman and Mohamed Gofran, Mohammed Amir Gofran, Mohamed Ishak, Mohammed Siddik, Abdul Majid, Abdul Rehman and Haji Imamuddin were members of the Society at the material time. On 10th January 1955 accused No. 1, as the Chairman of the Association, made an application for the issue of a licence for importing silk yarn for consumption in the powerlooms of the members of the Association. On 2nd January 1956 a licence was issued to the said Association permitting imports upto the limit specified therein. Warden and Co. , who have their office at Bombay represent certain manufacturers in foreign countries. On 13th May 1956 accused No. 1 placed an order with Warden and Co. , for importing 120 deniers and 150 deniers of silk yarn. Accordingly, Warden and Co. , placed order with the foreign manufacturers for supplying them with the necessary quantity of silk yarn. Letters of credit were opened by the Association and Wardan and Co. , stood guarantee in respect of the payment of the amount of the price of the goods to be imported. The goods ordered by Warden and Co. , were received in the months of July and August. The particulars relating to the arrival of these goods have been mentioned at Exhibit E by Warden and Co. , and these particulars are as follows:

(2.) 65 cases of 120 deniers bright I.

(3.) 25 cases of 150 deniers Bright Hanks. In all, 239 cases containing silk yarn, arrived and were taken delivery of by Warden and Co. , in the months of June and July. Out of this 25 cases of 120 deniers Bright I, were delivered to the Silk Processing and Lace Mills, according to the instructions of the Association for doubling the yearn. Similarly, 25 cases of 150 denier bright hanks were also delivered to the Association, 13 cases were delivered on 19th September 1956 and 12 cases on 27th September 1956. Considerable correspondence took place between Warden and Co. , on one hand and the Association on the other regarding the delivery of the remaining quantity. On 17th July 1956, Warden and Co. , wrote a letter to the Association stating that they had written letters requesting the Association to take delivery of the ordered goods, but that they had not yet heard anything from the latter in that respect. They further stated that the market in art silk yarn was going down every day. Therefore, they requested that immediate arrangement for delivery may kindly be made to avoid further unpleasantness. They wrote a second letter on 27th July 1956 pointing out that on the credit and reputation of accused No. 1 the Chairman of the Association, the Company indented the goods without asking for any deposit. They also pointed out that the market rates of art silk yarn had already gone down and were still showing a downward tendency. They, therefore requested the Association to make full payment and to obtain delivery of the goods within a fortnight and in case, it did not do so, Warden and Co. , would be forced to sell the goods in the market at the risk and cost of the Association. On 16th August 1956, accused No. 1 as the Chairman of the Association, wrote a letter to Warden and Co. , stating that the Association had received art silk of 60 deniers dull III, but the consumers complained that they were not of the same quality as the goods ordered by them. He, therefore, refused to accept delivery of the same. Accused No. 1, therefore, requested Warden and Co. , (hereinafter referred to as the Company) to exchange the silk yarn with one of better quality. On 22nd August 1956, the Association, wrote a second letter, which is in the nature of a reminder. On 28th August 1956 it wrote a third letter stating that the Association had received three cases of 60 deniers dull III cones and it was found that they are below the standard of the sealed sample given to it by the Company. The letter then refers to certain conversation that was supposed to have taken place between Abdul Latif and the Managing Director of the Company and adds: