EMPEROR Vs. JWALA PRASAD

JUDGEMENT

(1.) I do not agree with the District Magistrate. Mens rea has nothing to do with it. It is quite true that the section requires a wilful breach of the condition. A man may accidentally commit a breach. For example, if a man's watch was five minutes slow and he sold liquor at two minutes to eight by his own time, and it turned out to be two minutes past eight by the right time, that would not be a wilful breach. But a sale is a sale, and I have not the slightest doubt that the servant intended to sell the liquor and to take the money for it, and if he pocketed the money and refused to hand it over to his master and said that it was an accidental sale and not a wilful sale, and therefore the money did not belong Jo the master but to the servant, the master would have been very angry. The real test, so far as agency is concerned, is not the nature of the act but the nature of the business. The nature of the act is the test which decides the criminality. If the sale is wilful or the breach of the licence is wilful, then the servant has committed an offence. But the question still remains whether his master is liable, and in all these quasi civil transactions, which are really questions of contract, the view has always been held that the Legislature intended that the maxim making the superior answerable should apply to sales which are carried through in breach of the conditions of the licence by a man whom the master has put in the shop for the purpose of selling on his behalf and for his profit, and therefore if the man who actually took the money and transferred the liquor to the purcheser had been a servant, Jwala would have been answerable as his master. The law of partnership is merely a branch of, the law of agency, just like the law of master and servant, and for this purpose two partners stand to one another in the same relation as master and servant. This was a wilful breach of the licence. It was committed by Tika Ram as agent for Jwala the other partner, and in my opinion that makes Jwala equally liable, and the Magistrate was right. I see no reason to interfere and I direct the record to be returned to the District Magistrate. I may add that I agree with both the cases which have been cited, namely Queen-Empress V/s. Tyab Ali (1900) I.L.R. 24 Bom. 423 and Emperor V/s. Baba Lal (1912) I.L.R. 34 All. 319. It is hard on Jwala if he was on bad terms with Tika Ram and objected to this class of illicit dealing but if he can prove that, he can press for the recovery of his fine from Tika Bam, I think, in the taking of the partnership accounts. Let the record be returned.