IN RE: GANGARAM SHIONNA KALAR Vs. STATE

JUDGEMENT

(1.) THE applicant Gangaram has been convicted under Section 409, Penal Code, and sentenced to one year's rigorous imprisonment and a fine of Rs. 800. Most of the facts are not in dispute. Gangaram is an adatiya in the Wun cotton market. Between 6th December 1939 and 2nd April 1940 the complainant Tukaram (P.W. 1) delivered 13 carts of cotton to Gangaram to be sold when instructions to sell were given.' Between 23rd December 1939 and 2nd April 1940 Gangaram sold this cotton for Rs. 1020-2-0. His case is that Tukaram instructed him to sell the cotton on 15th March 1941 and he credited him with the price at Rs. 50 per khandi, the prevailing rate, although he had actually sold the cotton at rates varying from Rs. 50 to Rs. 90 per khandi. According to Gangaram, Tukaram is entitled to Rs. 716-8-6, which was what was due to him if the cotton were sold at Rs. 50 per khandi, less the advance he had received. Tukaram contends that he never instructed Gangaram to sell at all.

(2.) THERE is evidence on both sides to show the practice that prevails in the Wun cotton market. Cotton sellers, if they do not wish to sell their cotton for cash at the rate prevailing on the day when they bring it to the market, leave it with an adatya to be sold when they give him instructions. The adatya at once hands the cotton over to the ginning factory. All cotton delivered to the ginning factory is lumped together and ginned and sold as the factory thinks fit. The factory keeps an account of the cotton delivered to it by each adatya and has nothing to do with the cotton-sellers. When the adatya demands payment the factory pays him at the rates prevailing on that day; and when the seller demands payment the adatya pays him at the rate prevailing on that day. Gangaram's contention is that he was merely liable to pay Tukaram at the rate prevailing on the date of demand. If that is so, he was liable to pay him at the rate prevailing on 15th March 1941, if in fact there was a demand on that day, and, if there has been yet no demand, he is not yet liable. The lower Courts however have held that when he sold the cotton to the ginning factory between 23rd December 1939 and 2nd April 1940 he sold the cotton on behalf of his principal, that the principal Tukaram is entitled to the sale proceeds, and that Gangaram dishonestly misappropriated the money to his own use.

(3.) TUKARAM admitted that there was no particular agreement between him and Gangaram and that the understanding was that the transactions should be governed by the custom of the market. The learned Additional Sessions Judge has suggested that Tukaram and Gangaram were bailor and bailee, but where there is no obligation to return identical subject-matter, either in its original or in an altered form, there can be no bailment. The question is whether the property in the cotton remained with Tukaram. He must have been well aware of the custom of the market and that by that custom the ginning factory was entitled to gin and subsequently to sell the cotton. Tukaram had impliedly agreed to this and he could not reasonably expect his particular cotton to be kept in deposit unless he provided or paid for facilities fox so keeping it. According to the custom of the market, he was entitled to payment at the rate prevailing on the day on which he asked for payment. If he chooses not to sell on the day he hands over the cotton but to wait in the hope of a rise in price, I do not see that he has any right to complain if he misjudges the trend of the market and misses his opportunity of asking for payment when the price is favourable. His position is not materially affected by any agreement between the adatya and the ginning factory. Provided he gets the price prevailing on the day when he asks for payment, he gets all that he expected to get when he handed over the cotton for sale.