EMPEROR Vs. MOHSINBHAI FATEALI

JUDGEMENT

(1.) This is an appeal from a conviction by the Presidency Magistrate, Third Court, who convicted the accused of cheating and sentenced him under Section 420 of the Indian Penal Code. The learned Magistrate gave a long and exhaustive judgment, but I think some of the facts with which he deals are not relevant. The relevant facts are very few.

(2.) The accused is a retail trader, and the complainant is a wholesale dealer, and on September 16, the accused, through his servant, ordered certain rolls of lead sheets which are referred to in the charge. The price to be paid was Rs. 561, and as the goods were not at the moment in Bombay but were on board a ship in the docks, they were to be delivered as soon as they were unloaded. They were in fact delivered on September 24, It is disputed in the evidence as to what the exact terms of payment were. According to the complainant's case the accusedpromised expressly to pay on October 1, According to the accused's case there was no express agreement for payment, and payment was to be on the date usual according to the custom of the market, which on the evidence I think was on the expiration of one month. But for the purposes of the charge I think it makes no difference whether there was an express promise to pay on October 1, or an implied promise to pay at the expiration of a month, Before the goods were paid for, viz., on October 1, a mortgagee of the accused's stock took possession of the accused's place of business with all the stock therein, including the goods purchased from the complainant. On October 13, the accused filed his petition in insolvency. The accused is now charged with cheating by dishonestly inducing the complainant to deliver the rolls of lead sheets.

(3.) A certain amount of evidence was given on behalf of the accused to suggest that he had an inquiry for these goods from the Government of India and that he intended to sell them very quickly. That evidence is, I think, not of much importance. There was also some question as to whether when the goods were delivered from the docks the accused told the complainant's brother that they were wanted for sale up-country and the brother suggests that the goods would not have been delivered but for that representation. That, I think, is irrelevant, because the contract for delivery of the goods had been made on September 16, and the complainant could not impose a now condition on the 24th.