SRIKISHUN JHUNJHUNWALLA Vs. EMPEROR

JUDGEMENT

(1.) The petitioner, Srikishun Jhunjhunwalla, has been convicted under Rule 81(4), Defence of India Rules and has been sentenced to pay a fine of Rs. 1000, or, in default, to undergo rigorous imprisonment for six weeks. The petitioner is a wholesale dealer in sugar at Gopalganj, and the charge against him was that he had contravened a condition of his licence by selling five bags of sugar to one Sheodhan Sah. Apparently, in the month previous to that in which the sale took place, the petitioner had been authorised by the Sub-divisional Officer to sell six bags of sugar to this Sheodhan Sah. He had, however, been unable for some reason or other to supply, or, at any rate, had not supplied, him with more than two bags. It was apparently conceded in the Courts below that the petitioner would have been justified in supplying Sheodhan Sah with four bags but was not justified in supplying him with five bags. Sheodhan Sah did not take delivery of the bags of sugar himself but sent his servant, one Ramdas, to take delivery. In the morning after Ramdas took delivery, a Sub-Inspector of excise for some reason or other suspected him and seized the bags of sugar. He also seized a receipt which Ramdas said the petitioner had given him when he paid him the money and took delivery of the bags. Ramdas was examined-in-chief, but on the day on which he was to attend for cross-examination, the trying Magistrate was informed that he was dead. Mr. Jaleshwar Prasad for the petitioner has complained that the learned trying Magistrate should have called on the prosecution to adduce evidence to show that Ramdas was in fact dead. If it had been suggested by the defence that he was not dead but for some reason or other was keeping out of the way, the learned trying Magistrate would clearly have been under an obligation to do so. No such suggestion appears, however, to have been made, and, as a matter of law, it was not, I think incumbent on the learned trying Magistrate to insist on evidence of this kind being produced.

(2.) Mr. Jaleshwar Prasad then contended that the evidence of Ramdas should have been wholly excluded, and for this contention he relied on the decision in Narsing Das V/s. Gokul Prasad . That, however, was a case in which a woman was examined on commission in a civil suit and at a later stage of the trial it was sought to put in that evidence. The decision has been distinguished and explained in a later decision of the same High Court: Ahmad Ali V/s. Joti Prasad . As pointed out there, Section 33, Evidence Act, does not apply in this case.

(3.) In Ahmad Ali V/s. Joti Prasad it was decided that when a witness died after he had been examined-in-chief and before his cross-examination had been concluded, his evidence was admissible, but the degree of weight to be attached to it depended on the circumstances of the case. Rowland, J. of this Court, in Mt. Horil Kuer V/s. Rajab Ali A.I.R. 1936 Pat. 34, in which he reviewed a number of authorities, was of the same opinion. Even, however, if the evidence of Ramdas is excluded, there is other evidence sufficient to support the conviction. Ramdas employed one Shaikh Boharan to carry the bags of sugar on his bullock-cart to the premises of Sheodhan Sah. This man said that five bags of sugar had been made over to him at the godown, that the petitioner had been present there and that he had seen the petitioner give Ramdas a receipt. As I have already said, there were five bags of sugar on the cart when the sub-inspector of excise stopped it and Ramdas was in possession of the receipt which was produced at the trial. This receipt has obviously been taken from a receipt-book specially printed for the petitioner. No doubt, the petitioner produced a counterfoil purporting to show that he had sold four bags of sugar and not five to Ramdas. It is, however, quite clear, on the evidence, that he did in fact sell five bags of sugar to Ramdas and gave him a receipt; and if the counterfoil which he produced purports to show that he sold only four bags, the conclusion to be drawn is that he was maintaining two books of receipts, giving his customer a receipt from the one book and making a false entry in the counterfoil of the other. Lastly, Mr. Jaleshwar Prasad, for the petitioner, contended that there was no evidence to show that the order permitting the petitioner to sell a certain number of bags of sugar to Sheodhan Sah was made by the Sub-Divisional Officer, who, Mr. Jaleshwar Prasad says, was the licensing authority.