STATE OF MAHARASHTRA Vs. ABID HUSEN SAHIB HUSEN

JUDGEMENT

(1.) THIS is an appeal by the State challenging the order of. the learned Judicial Magistrate, First Class, Dhulia, dated 16th Aug. 1974 acquitting the accused who was charged along with two others for an offence Under Section 420 read with Sections 34 and 511 of the IPC

(2.) BRIEFLY stated the allegations on which the prosecution was founded are these: On 5th March 1974 between 4. 00 and 4. 30 p. m. , Mr, Chandrakant Bharati (P. W. 1) the Office Superintendent of Vidhya Vardhini College, Dhulia, Mr. Desh-pande (P. W. 2) a Chartered Accountant who was working as a part-time Professor in the said college and Professor Jain and Librarian Surya-vanshi were sitting in the office of the college at Dhulia. At that time respondent-accused No. 1 entered the office and asked these persons viz. Bharati and Deshpande as to whether they wanted cement. It may be mentioned that at that time construction of some portion of the college premises was in progress. Mr. Deshpande gave a reply in the affirmative and they asked the accused from where he had brought it and the accused replied that he had some work at Sakri and that after finishing that work about 50 bags had still remained with him for disposal. The accused further stated that the cement was of A. C. C. Company. They asked the accused about the rate. The accused initially quoted the rate at Rs. 18/- per bag but came down to Rs. 15/- per bag. It may be mentioned that at that time the market rate was Rs. 25 to 30 per bag. That is why both Bharati and Deshpande became suspicious. Both Bharati and Deshpande asked the accused as to how he could afford to sell at a cheaper rate. The accused-respondent replied that he was selling the cement at a cheaper rate to the educational and religious institutions. Another reason which tw. accused gave was that because he was short of money for storing the cement he was selling at a cheaper rate. That again aroused the suspicion of these gentlemen. The accused, however, called Bharati and Deshpande to see the cement which according to him was loaded in a lorry which was parked in front of the college on the Nagpur-Dhulia road. That is why at the instance of the accused Mr. Bharati and Mr. Deshpande, Mr, Jain and Mr. Suryavanshi together went near the lorry. Accused Nos. 2 and 3 who were driver and cleaner of the lorry were present there. Accused No. 1 showed the cement which was in the lorry. He also showed some sample. But Mr. Deshpande did not feel that it was cement. On the other hand he suspected that- it might be stone powder. Accused No. 1 said that they can show the cement to their mistry. He also asked for a bearer cheque from Mr. Deshpande and offered to bear the commission charges. Thereafter , Desh- pande and Bharati returned to the college office and Deshpande rang up the police station and informed P. S. I. Mohamad Altaf Ahmedi {p. W. 7) that one truck was parked in front of the college and that the owner was representing that it was loaded with cement and that he himself suspected that it was not genuine cement. That is why P. S. I. Ahmedi went to the college. He contacted M/s. Deshpande and Bba-rati and the accused. The accused then produced one receipt from R. Hiralal and Sons' issued in his name. The P. S. I, then attached the bags and the accused stated to him at that time that the bags contained stone powder. A sample of the contents of the bag was also taken and sent to the Chemical Analyser. The Chemical Analyser reported that it was not cement but stone powder. On these facts, the accused, his driver and cleaner were all prosecuted for an offence Under Section 420 read with Sections 34 and 511 of the I. P. C.

(3.) ALL of them pleaded not guilty to the charge. So far as accused No. 1. the present respondent is concerned, he admitted of his having gone to the college office and contacted the prosecution witnesses Bha-rati and Deshpande. His defence is that he did not represent to them that he had cement to sell and that on the other hand he had told them that he had stone powder to be sold. When asked as to why they should falsely depose against him he stated that the prosecution witnesses Bha-rati and Deshpande had demanded the cement on credit, and, therefore, they have falsely involved him.