HARISH CHANDRA BAGLA Vs. EMPEROR

JUDGEMENT

(1.) The applicant, Harish Chandra Bagla, has been convicted under Rule 81 (4), Defence of India Rules, and sentenced to rigorous imprisonment for a period of three months, and to a fine of Rs. 500 or two months rigorous imprisonment in default. The accused is the proprietor of a firm known as Durga Prasad Harish Chandra in Generalganj, Cawnpore. The charge against the accused was that on 7 March 1944 the accused sold 48 pieces of malmal cloth No. 6772 of Swadeshi Mills, Bombay, at the rate of Rs. 14 per piece when the control price of the same was only Rs. 13-4-6, fixed by the Textile Commissioner under the provisions of Clause 12 (4) of the Cotton Cloth and Yarn (Control) Order of 1943. It is not denied that the control price of this quality of cloth was Rs. 13-4-6 and it is further not denied that the price charged was Rs. 14 per piece. The defence of the applicant was that on 4 March 1944 the applicant had left for Bombay in connexion with a marriage and did not return to Cawnpore till 15 March 1944, that he had left his Munib, Badri Prasad, in charge of the shop during his absence, and that if, against his instructions and without his knowledge, his Munib sold the cloth at a rate higher than the control rate, the accused was not liable and should not be punished for contravention of the above rule. The next objection was that the accused could only be prosecuted if his prosecution was sanctioned by the Provincial. Government and it was not proved in the case that there was any such sanction. Lastly, it was submitted that in view of the facts of this case the sentence awarded was too severe and the fine imposed was excessive.

(2.) The only witness produced on behalf of the prosecution was Harish Chandra C. P. I. Harish Chandra gave evidence that the control price of this cloth was Rs. 13- 4-6 and that 48 pieces were sold from the shop of the accused to Messrs. Mannoo Lal Kishen Gopal, Commission Agents, Cawnpore, at Rs. 14 per piece. He also stated that Ex. P-2 was his report and Ex. P-3 was the sanction from the Government. In cross-examination he admitted that he had not stamped the control price on these 48 pieces and that when he went to the shop to make enquiries he was told that the control price was not known and the goods were sold at a loss. The accused in the statement made by him before the learned Magistrate stated that he had gone to Bombay in connexion with the marriage of the daughter of Rai Saheb Rameshwar Das Bagla on 4 March 1944 and remained in Bombay till 13 March 1944 and that he had no knowledge or information that the goods were sold by his Munib above the control rate till the Inspector came to make enquiries, and then he asked, his Munib who told him that he did not know the control price and had therefore made a mistake. He further added that he tried to get a copy of the paper giving the control rates, but he could not get one till April 1944. Mr. K. C. Shukla, District Supply Officer, was then examined by the prosecution. He stated that the rates were published by the Publicity Commissioner of Bombay and he had given 30 copies of this publication to the Kapra Committee of Cawnpore and later he had got many more copies for distribution to the various dealers. The accused produced two witnesses. Rameshwar Das came to give evidence that the accused was in Bombay from 4th March to 13 March 1944 on the occasion of the wedding of his daughter. He is the uncle of the accused. The other witness produced was Badri Prasad Munib who stated that these pieces had been purchased prior to the control order at the rate of Rs. 16-12-0 per piece and he did not know the rates fixed by the Government. There were various rates fixed for various kinds of malmal manufactured by different mills and he was under the impression that he was entitled to charge Rs. 14 for this type of malmal. According to him he sold these goods at Rs. 14 at a loss, thinking in good faith that this was the rate at which he was entitled to sell. This is the entire evidence on the record.

(3.) The fact that the accused was not in Cawnpore but was in Bombay has been accepted by the Magistrate and by the learned Sessions Judge. The fact that cloth was sold at a rate higher than the control rate could not be denied by the accused. There is no evidence that the accused had fixed the rate at Rs. 14 or had directed his Munib to sell the cloth at a rate higher than the control rate. Prom the fact that cloth was purchased at Rs. 16-12-0 and was sold at Rs. 14 it may be that the statement of Badri Prasad that he in good faith believed that Rs. 14 was the proper rate may be true. But the question of good faith can only be taken into consideration in awarding the sentence. Even if under a mistake or misapprehension cloth was sold at a rate above the control rate, the person so contravening the provisions of the Cloth Control Order was clearly guilty. The question that has arisen for consideration is whether on these facts the accused could be held to be guilty.