L GILLUMAL Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application in revision by one Lala Gillumal who has been convicted of an offence under Section 13, U.P. Cotton Cloth and Yarn Control Order, 1943, and has been sentenced to a fine of Rs. 100. The applicant is admittedly a partner in the firm of Arjun Das Shankar Lal which deals in cloth. It is also admitted and found that he is a registered retailer. It appears that the shop was visited by one J.S. Singh, who is presumably an officer of the Supply. Department, and he found that certain copies of cash memos retained in the shop in accordance with the provisions of Section 6, U.P. Cotton Cloth and Yarn Control Order, 1943, did not contain all the particulars which should have been mentioned therein. Section 6, U.P. Cotton Cloth and Yarn Control Order, 1948, runs as follows: Every manufacturer, selling agent, wholesale dealer, commission agent and retailer shall, if the value of goods purchased is Rs. 10 or more in all oases and if the value of goods is less than Rs. 10 when so requested by the purchaser give to the purchaser of cotton cloth or yarn a memo stating the quantity and description of cotton cloth or yarn sold by him and the price charged and shall keep a copy thereof. Explanation - The description must include the variety and dimensions in the case of cloth and the number of counts in the case of yarn, and trade mark or trade number and name of manufacturing mill and its tex mark and number in the case of both cloth and yarn.

(2.) THE prosecution case is based upon copies of two cash memos that were found in the shop. It is urged that the name of the mill was not mentioned and also that there was no correct description of the kind of cloth sold. Upon these facts the applicant was tried for an offence under Section 13, U.P. Cotton Cloth and Yarn Control Order and convicted and sentenced, as mentioned above, hence this application in revision. THE defence of the applicant was that though he was one of the partners owning the shop in question yet he had nothing to do with the actual management of the shop and hence he could not be held liable for any defects in the two copies, of cash memos upon which the prosecution case was based. This defence was rejected by the learned trying Magistrate who pointed out that the responsibility for any illegal omission in the copies of cash memos is still on the applicant, who is admittedly a proprietor of the firm, though he may not have been actually managing the firm or might not have been present when the two documents were prepared. THE learned Sessions Judge also arrived atthe same conclusion and dismissed the application in revision made by the applicant. THE only point which arises for consideration in this application is whether the applicant can be found guilty because he was admittedly the proprietor of the shop even though the two documents upon which the prosecution case is based may not have been actually prepared by him or that he may not have been present in the shop when they were prepared. Learned Counsel for the appellant who raised this question wanted it to be answered in the negative on the strength of a decision of a learned Single Judge of this Court in Chotey Lal V/s. Emperor Cri. Ref. No. 1348 of 1944. In that case it was held by the learned Single Judge that Chotey Lal, who was the proprietor of the shop, could not be held responsible for the refusal on the part of his servant to issue a cash memo because he himself was not present at the time of the transaction in question. That case is not exactly on all fours with the present one, but I feel that it lends some support to the contention advanced by learned Counsel for the applicant in the present case. With due respect to the learned Single Judge who decided this Chotey Lal V/s. Emperor Cri. Ref. No. 1348 of 1944. I find myself unable to accept the view taken by him. In my opinion, Section 6, U.P. Cotton Cloth and Yarn Control Order, lays certain duties upon every manufacturer, selling agent, wholesale dealer, commission agent and retailer, and one of those duties is to issue cash memos in certain cases and to keep copies thereof. THE cash memos so issued and their copies must contain all the particulars which are mentioned in the explanation to the section. THE applicant in this case is admittedly a partner in the firm and a registered retailer. THE law laid certain duties on him and he cannot escape the consequences of not performing those duties by saying that he entrusted the performance of those duties to someone else, either a servant or an agent. As there is a conflict of opinion I do not think it proper to decide this case - for contrary decisions of this kind are apt to mislead the Courts below. I would, therefore, recommend that this case should be decided by a Bench. It will be laid before the Hon ble the Chief Justice for constituting a Bench for its decision.