EMPEROR Vs. BHOLASINGH AMERSINGH

JUDGEMENT

(1.) The accused was charged with one Cassidy before Mr. Thacker, the Additional Presidency Magistrate, under Section 420, read with Section 114, Indian Penal Code, with having cheated the complainant on August 9, 1923, in respect of 139 tins of saccharine valued at Rs. 1,251, and having aided and abetted each other in the commission of the said offence. According to the complainant's story-Cassidy came to him on August 9, at 11-30 a.m. with a Mohamedan Pandit, bringing with him a tin of saccharine, saying that he wanted to sell that stuff and asked for orders. He again came at 3-30, when the complainant's father was present, with a sample tin which, the complainant said, was genuine, and accordingly he fixed the rate at Rs. 9 a tin, and at 3-30 he brought 139 tins of saccharine which looked similar to the sample. The complainant paid Rs. 1,251 and Cassidy passed a receipt, Exhibit A, signed in the name of J. Smith for P. Singh. Cassidy refused to receive a cheque for payment, the practice at the complainant's shop being to make all payments by cheques, as Cassidy said that he was at the time going to Poona and would prefer to have cash. The same day one Manek-lal, a dealer in saccharine, gave the complainant some information as regards the contents of the tins of saccharine. The complainant thereupon opened one of the tins and found it contained an adulterated mixture of saccharine and bicarbonate of soda. The complainant then went in searph of accused No. 2 and succeeded in finding him in the office of G. Mayadas and Co. in Frere Road. He told accused No. 2. that the stuff he supplied to the complainant was not genuine saccharine and demanded hack his money. Accused No. 2 said that he had sold it for accused No., 1 for whom, he acted only as a broker. The complainant's father informed the Police and accused No. 2 was arrested. Search was made for accused No. 1, but he could not be found. Enquiries were made and information was received that he was at Delhi, and the Police sent requests to the authorities at Delhi to send Bholasing to Bombay where he arrived on August 30. Meanwhile the Police received information that one Akbarali had some dealings with the accused No. 1 in saccharine. Akbarali was sent for, and he identified the first accused from amongst ten other persons as the purchaser from him of twenty-five tins of saccharine and one bag of soda bicarbonate on July 28.

(2.) After the evidence was recorded before the Magistrate, and the statements of the accused had been recorded, the Magistrate ordered that the second accused should be discharged as he did not consider the evidence against him sufficient to frame a charge. So a charge was framed only against the first accused. Cassidy was then examined under Section 256, Criminal Procedure Code, and cross- examined by the Pleader for the first accused. Other witnesses deposed to the connection between the first accused, and Cassidy. A person called Wiseman said that he was unemployed. He had been in Bombay for aboul a year and four months. In August, 1923, lie was sleeping and stopping in the office of G. Mayadas in Frere Road, where Cassidy also used to stop with him. The first accused was the only man who used to visit Cassidy, and used to give Cassidy tins of saccharine of the size of the tin Exhibit B in the case, and asked Cassidy to secure orders for them. Accused No. 1 also asked the witness to sell similar tins, but he declined to do so. He further deposed to the selling of tins by Cassidy at the instance of the first accused.

(3.) The witness Panjumal Laxmandas said he was a clerk and lived at the office of G. Mayadas and Co. He had known Cassidy for three or four months. He had known accused No. 1 for two years. He was a merchant dealing in provisions. The witness had sometimes seen him at the office of G. Mayadas and witness introduced accused No. 1 to Cassidy, as accused No. 1 told the witness that he had some provisions to be sold, and asked the witness if Cassidy could sell them for him.