SUDHINDRA NATH DUTT Vs. KING

JUDGEMENT

(1.) Messrs. Harold F. Ritchie and Co. Ltd. are a reputed business concern carrying on business at 11 Olive Street, Calcutta. Amongst other things they are importers & distributors of Eno's Fruit Salt, Germolene and Brylcream. It is said that on 14-5-1948, they received an order from Messrs. Section N. Siddique & Sons of 2 Waterworks Road Dacca for the supply of 100 cases of Eno's Fruit Salt, 50 cases of Germolene and 50 cases of Brylcream by a letter which has been marked as Ex. 1 in the case. On the same day at about 4.30 p.m. a man named A. Rahaman representing himself to be an agent of Messrs. S. N. Siddique & Sons of Dacca came to see the Manager of Messrs. Harold F. Ritchie & Co. Ltd., Mr. Maurice D. Sopher in connection with the order for sale; but as it was late in the afternoon & the office hour was over he was asked by the Manager to come on the following morning which was a Saturday. Next morning Rahaman again came at 9 O'clock but had to wait at the outer office for half an hour as the Manager was otherwise busy. At 9.30 a.m. Rahaman met Sopher and told him that his master was a big business man of Karachi who had advanced a loan of 25 lacs of rupees without interest to the Pakistan Govt. On these representations Mr. Sopher agreed to sell so much as he could supply provided payment was received in his office. Rahaman told Sopher that he was not allowed to handle cash by his master & accordingly arrangements were made for payment by a pay order issued by the 'Hindusthan Commercial Bank'. Sopher agreed to accept the pay order & instructed his Storekeeper, & D. D. Tamboli to draw up a pro forma invoice which was done & signed by Sopher. This document is Ex. 4 & it shows that 900 dozens of Eno's Fruit Salt, 600 dozens of Brylcream & 50 dozens of Germolene Ointment were to be sold for the total price of Rs. 33,187/8/-. It bears the date 15-5-1948. Rahaman took the pro forma invoice & promised to call on the next working day, i.e. 17-5-1948 with the pay order; on 17-5-1948 Rahaman came in the morning to enquire how many lorries would be-required to carry the goods & promised to call again in the afternoon with the pay order. Rahaman again came in the afternoon with the pay order, Ex. 6, & letter of authority Ex. 5, issued by the Hindusthan Commercial Bank, Bhowanipur. The delivery order Ex. 3 was prepared before the Pro forma Invoice & it was in the possession of the Store-keeper. Rahaman asked for a receipt for the pay order whereupon the Cashier, V. S. Narayan Swami prepared a receipt which was signed by Sopher & made over to Rahaman. Ex. 14 is the Counterfoil of the receipt. The Co. had two godowns one at 11 Clive Street & the other in Park Street. After taking the required quantity of Germolene from the Clive Street godown Rahaman went to the Park Street godown with the Store-keeper Tamboli & five coolies of the Co. in a taxi hired by Rahaman which was waiting outside. At the Park Street godown the Store-keeper delivered the remaining quantity of goods according to the pro forma invoice on taking a receipt from Rahaman on the delivery order. Rahaman's receipt is Ex. 3(1).

(2.) On 18-5-1948 Sopher sent the pay order to his Banker, the National Bank of India, in the usual course of business, for collection & very soon thereafter discovered that he had omitted to charge Sale tax in his pro forma invoice. Upon this discovery Sopher attempted to contact Rahaman without success & became nervous about) the pay order; on enquiry his Banker informed Sopher that the pay order had been sent out for clearing & that he would be informed as soon as any intimation was received. On 19-5-1948, one Swarup Prakash Puri, the Agent of the Hindusthan Commercial Bank at 11 Clive Street, informed Sopher that he had received a message from the Bhowanipur Branch of the Hindusthan Commercial Bank to the effect that the pay order presented by Sopher had never been issued by them. When Sopher was talking to Puri, the Cashier Narayan Swami came with the pay order which has been returned by the National Bank of India. After inspection of the pay order & the letter of authority (Exs. 6 & 5) purported to have been issued by the Bhowanipur Branch of the Hindusthan Commercial Bank, Puri confirmed that they had never been issued by them. Ex. 18 is a reply given, by the Agent of the Bhowanipur Branch of the Hindusthan Commercial Bank to Messrs Harold F. Ritchie & Co. to their letter dated 18-5-1948, by which the Agent of the Bank informed Sopher that he had not issued any pay order or letter of authority in favour of Messrs. Harold F. Ritchie & Co. This reply is dated 19-5-1948.

(3.) Upon these facts Swarup Prakash Puri & Sopher filed a complaint Ex. 9 with the Lal-bazar Police on the 19-5-1948 & under the orders of the Assistant Commissioner of Police investigation was taken up by Jyotsna Kumar Mitra, Sub-Inspector attached to the Detective Department. In the course of the investigation, the investigating officer went to premises No. 5/1 Bindubasini Street (Kidderpore) on 31-5-1948 at 3 p.m. & searched the house. The major portion of the goods delivered by Messrs. Harold F. Ritchie & Co. Ltd. was recovered from two rooms of the house both of which were locked. The key of one of the two rooms was produced by Sudhangsu Kumar Das Gupta who is a Sub-Inspector of Police attached to the Enforcement Branch. This room was a part of the main building. The other room from which also a portion of the goods was seized by the police was in the compound & it had to be broken open.