K V RAMASWAMI NAICK Vs. RANGASWAMI CHETTIAR

JUDGEMENT

(1.) The petitioners, who are father and son, have been convicted by the Joint Magistrate of Sivakasi for the dishonest misappropriation of five bandy loads of cotton, the property of P.W. 1, on 19 June 1934 and sentenced to pay a fine of Rs. 1,000 each. The conviction and sentences have been confirmed on appeal by the learned Sessions Judge of Ramnad. The undisputed facts of the case are that P.W. 1 sent the cotton from a ginning factory at Erichanatham to Virudhunagar on 19 June; that accused 1 was a creditor of P.W. 1 who came to Erichanatham on that day to demand payment of his debt, which according to himself amounted to Rs. 360, that petitioner 1 accompanied the bandies to Virudhunagar, that at Virudhunagar petitioner 1 sold the cotton to an agent of Volkart Bros.; and that on 21 June petitioner 2 was paid Rs.1,200 for the cotton.

(2.) The points of difference between prosecution and defence are the following: P.W. 1 says he bought the cotton from P. Ws. 13 and 16 and other sellers; petitioner 1 says it was he who sold the cotton to P.W. 1 and that P.W. 1 was unable to pay him for it. P.W. 1 says that when petitioner 1 demanded payment of the debt he (P.W. 1) authorized petitioner 1 to obtain payment of Rs. 150--which alone P.W. 1 admitted--from one Palani Nadar in Virudhanagar. It was to Palani Nadar that the cotton was being despatched. Petitioner 1's case is that P.W. 1 authorized him to sell the cotton and pay his debt from the sale proceeds, less the charges due to P.W. 1 for ginning. The petitioners were first prosecuted on a charge of cheating. They were discharged by Mr. Wood, the then Joint Magistrate of Sivakasi. Further enquiry was ordered by the Sessions Judge. The judgment of Mr. Corleston, who convicted the petitioners Under Section 403 being possibly influenced by the Sessions Judge's order, seems to assume that a case has been made out against the petitioners which necessitates their conviction, if they cannot rebut it. In paras. 1.3 he states the facts and mentions that he has framed a charge. Almost the whole of the rest of the judgment is taken up with the criticism and rejection of the case for the defence. In appeal, the learned Sessions Judge states the issues briefly in para, 5 as follows: To succeed, the prosecution must establish that the cotton belonged to P.W. 1, and that the appellants had no right to take the sale proceeds.

(3.) In para. 6 he holds that the cotton undoubtedly belonged to the complainant. In para. 7 he holds that as it is admitted that petitioner 2 received the money for selling the cotton, there is a presumption against the appellants which they must rebut. In para. 8 he refuses to attach any importance to discrepancies on the question whether the petitioners were put in charge of the cotton or not, because of the existence of this presumption; finds that the petitioners were not authorized to sell; and finally holds that even if they were so authorized they had no instructions or right to keep the whole of the proceeds .