EMPEROR Vs. UTTAMLAL NAROTTAMDAS

JUDGEMENT

(1.) The accused was charged before the First Class Magistrate of Surat City with having cheated one Nagin Dulabhram with Rs. 5,000, an offence punishable under Section 420, Indian Penal Code. The Magistrate found the accused guilty and sentenced him to suffer rigorous imprisonment for two years and pay a fine of Rs. 1,000 or in default to suffer rigorous imprisonment for six months more. On appeal that conviction was set aside by the Acting Sessions Judge. From that order of acquittal the Government of Bombay have appealed. There is no dispute about the facts of the case. The accused, a young man of twenty-two years old, a resident of Gandevi in the Baroda Territory, came down to Surat and opened a business on the 1st of February 1919 in his own name in partnership with one Harkisondas Motiram. After the 1st of February the accused entered into certain transactions. He contracted to buy a certain quantity of sesamum from one Vijubhai Hargovan of the value of over Rs. 5,000. He entered into a contract with one Aslaji for the purchase of empty kerosene oil tins of the value of Rs. 1,100. He entered into a contract to purchase twenty five shares of the Finlay Mills for which the broker wanted Rs. 1,600 as margin money. He also entered into a contract for some cotton business with one Govindji Girdharlal. It does not appear that the accused had any money whatever to finance these transactions. After the middle of February it seams that he went to Bombay and had an interview with one Parbhudas who carried on business as a commission agent with a view to enter into business transactions with him. What the result of that interview was is not quite clear. But we have letters written by the accused to Parbhudas about business. The answers sent by Parbhudas before the 28th February have not been kept by the accused, and there are no press copies, but from the letters written by the accused it is impossible to suppose that any definite arrangements for entering into business were made. Then, on the 27th February 1919, the accused wrote to Parbhudas : Tomorrow we will draw from here on you a hundi up to rupees ten thousand. Please take note of the same. Likewise we shall send under cover to you avej also to the extent of rupees five thousand. Please take note of the same. And in two or three days we shall send under cover the other avej. Please take note of the same. Therefore when the hundis come to you, please make it convenient to accept and pay for them immediately. Further, you were requested to write quoting the rates of kerosine oil, empty tins, safety matches, wax and other articles but there is no reply from you. Please therefore write forthwith. As far as practicable we are going to come to you personally on Monday. So that should we not send under cover other hundi then we shall come with cash. Please take note of the same.

(2.) Therefore in that letter the accused was asking Parbhudas to honour his hundi on the promise that he would be supplied with funds to meet the hundis when presented. There is no evidence, and I cannot say that there is the slightest reason to suppose, that on the 27th February Parbhudas had made any representations to the accused that he would honour the hundis drawn by the accused without first being placed in funds.

(3.) On the 28th February Parbhudas replied to that letter saying: Your letter was received. Further you wrote (asking me) to write about the particulars as to the drawing of a hundi. The same was noted. We (or I) shall do the work of (accepting) hnndi according to "avej" (the moneys deposited). Further you wrote about sending empty tins for being sold here. But we (or I) have got no such facilities. Therefore if we (or I) got such facilities we (or I) shall write to you (accordingly).