EMPEROR Vs. MANSING DAJI PATIL

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against certain orders of acquittal recorded by the Sessions Judge of Khandesh in a case in which two accused persons, Mansing Daji and Jalalsing Daji, had been charged with an attempt to commit the offence of cheating. They were both convicted by the learned Magistrate, but these convictions were reversed on appeal to the Sessions Judge.

(2.) Briefly the accusation against the two appellants was this : That having contracted with Ralli Brothers to deliver a certain quantity of good cotton, they delivered instead for acceptance by Rallis 30 dokras of bad cotton, i. e., cotton heavily adulterated with rubbish, and adulterated in such a manner that the fraud would be likely to escape the usual inspection which is had on such occasions. According to the evidence this attempt to cheat stopped at an attempt only because Ralli s agent, to whom delivery was offered, suspected the character of the goods and declined to accept them. The learned Magistrate, in a very careful judgment reviewing all the evidence, came to the conclusion that the matters of fact alleged on behalf of the prosecution had been satisfactorily proved. With B 72 the learned Sessions Judge s judgment it is somewhat more difficult to deal. As I understand it, he does not express dissent from the Magistrate s finding on any questions of fact, but his judgment seems to proceed on the footing that even if the Magistrate s findings of fact are correct yet -his conclusion as to the guilt of the respondents was wrong in law. And he holds that Magistrate was wrong in law, because he is of opinion, first, that the facts alleged for the prosecution, if proved, do not amount to an attempt to cheat, but amount only to a preparation for cheating, and, secondly, he is of opinion, apparently as a matter of law, that there could have been no attempt to cheat in this case, seeing that the contract, in respect of which the cheating is alleged, had terminated before the respondents are said to have offered this adulterated cotton for acceptance.

(3.) Speaking for myself, I am glad to notice that neither of these two points on which the learned Judge relied has been adopted in this Court, and, that being so, I do not propose to devote many words to showing that these points are both unsustainable. In the first place assuming, as we must for the purposes of argument assume, that the facts alleged for the prosecution are proved, there can, I think, be no doubt whatever but that we have here a complete case of an attempt to cheat. Indeed, on the evidence, as I have said, the only reason why the offence stopped short at an attempt and did not proceed to the cheating itself, was because the party who was sought to be cheated was cautious and not confiding. The respondents, on the evidence, did all they could do to perfect their offence. That is to say, the overt act was begun which would have led to the finished offence but for an interruption arising independently of the will of the respondents. As to the expiration of the term of the civil contract it appears to me that that is quite irrelevant. If the evidence is believed, there can be no question that it was with a view to fulfil this contract and with no other view whatsoever that this adulterated cotton was tendered to Rallis, and if that be so, then it appears to me that the offence of attempting to cheat would be complete. I notice, however, as a fact, though it seems to me irrelevent, that the contract at this time was still on foot. For Rallis, with whom lay the option to close it, had not exercised that option. Leaving these unprofitable topics, therefore, we may now come to the case itself. Concerning a great many of the learned Magistrate s findings, I may observe that they have not been attacked on behalf of the respondents in this case, and many of them rest upon such convincing and unimpeachable evidence that I propose to accept them without wasting words in discussing them. On this footing then I hold that the respondents being joint Hindu brothers exercised all their trade jointly. Included in this trade was a certain cotton business, of which one asset was the ginning factory, at Mhaswad. The contract with Rallis was made by the 2nd accused Jalalsing and was also signed by the 1st accused Mansing. From the respondents gin at Mhaswad the adulterated cotton was sent to Gokuldas Madhavji s compound in which Rallis offices are situate. It was brought to the notice of Rallis agent. It was refused at first on suspicion, and subsequently on discovery that it was so largely adulterated.