1. This is an appeal by the Government of Bombay against certain orders of acquittal recorded by the Sessions Judge of Khandesh in a case in which two accused persons, Mansing Daji and Jalalsing Daji, had been charged with an attempt to commit the offence of cheating. They were both convicted by the learned Magistrate, but these convictions were reversed on appeal to the Sessions Judge.
2. Briefly the accusation against the two appellants was this : That having contracted with Ralli Brothers to deliver a certain quantity of good cotton, they delivered instead for acceptance by Rallis 30 dokras of bad cotton, i. e., cotton heavily adulterated with rubbish, and adulterated in such a manner that the fraud would be likely to escape the usual inspection which is had on such occasions. According to the evidence this attempt to cheat stopped at an attempt only because Ralli's agent, to whom delivery was offered, suspected the character of the goods and declined to accept them. The learned Magistrate, in a very careful judgment reviewing all the evidence, came to the conclusion that the matters of fact alleged on behalf of the prosecution had been satisfactorily proved. With B 72 the learned Sessions Judge's judgment it is somewhat more difficult to deal. As I understand it, he does not express dissent from the Magistrate's finding on any questions of fact, but his judgment seems to proceed on the footing that even if the Magistrate's findings of fact are correct yet -his conclusion as to the guilt of the respondents was wrong in law. And he holds that Magistrate was wrong in law, because he is of opinion, first, that the facts alleged for the prosecution, if proved, do not amount to an attempt to cheat, but amount only to a preparation for cheating, and, secondly, he is of opinion, apparently as a matter of law, that there could have been no attempt to cheat in this case, seeing that the contract, in respect of which the cheating is alleged, had terminated before the respondents are said to have offered this adulterated cotton for acceptance.
3. Speaking for myself, I am glad to notice that neither of these two points on which the learned Judge relied has been adopted in this Court, and, that being so, I do not propose to devote many words to showing that these points are both unsustainable. In the first place assuming, as we must for the purposes of argument assume, that the facts alleged for the prosecution are proved, there can, I think, be no doubt whatever but that we have here a complete case of an attempt to cheat. Indeed, on the evidence, as I have said, the only reason why the offence stopped short at an attempt and did not proceed to the cheating itself, was because the party who was sought to be cheated was cautious and not confiding. The respondents, on the evidence, did all they could do to perfect their offence. That is to say, the overt act was begun which would have led to the finished offence but for an interruption arising independently of the will of the respondents. As to the expiration of the term of the civil contract it appears to me that that is quite irrelevant. If the evidence is believed, there can be no question that it was with a view to fulfil this contract and with no other view whatsoever that this adulterated cotton was tendered to Rallis, and if that be so, then it appears to me that the offence of attempting to cheat would be complete. I notice, however, as a fact, though it seems to me irrelevent, that the contract at this time was still on foot. For Rallis, with whom lay the option to close it, had not exercised that option. Leaving these unprofitable topics, therefore, we may now come to the case itself. Concerning a great many of the learned Magistrate's findings, I may observe that they have not been attacked on behalf of the respondents in this case, and many of them rest upon such convincing and unimpeachable evidence that I propose to accept them without wasting words in discussing them. On this footing then I hold that the respondents being joint Hindu brothers exercised all their trade jointly. Included in this trade was a certain cotton business, of which one asset was the ginning factory, at Mhaswad. The contract with Rallis was made by the 2nd accused Jalalsing and was also signed by the 1st accused Mansing. From the respondents' gin at Mhaswad the adulterated cotton was sent to Gokuldas Madhavji's compound in which Rallis' offices are situate. It was brought to the notice of Rallis' agent. It was refused at first on suspicion, and subsequently on discovery that it was so largely adulterated.
4. Shortly afterwards the Mamlatdar and other officers swooped down upon the respondents' gin at Mhaswad, and there they found certain rollers some of which were actually working, while other had just been removed from the gin, which rollers are found to have been specially designed in order to perpetrate just this particular kind of fraud. The design consisted in the enlarging of the grooves. of these rollers so that they would let in kapas and other worthless stuff which would be thrown out by what I may call an honest roller. In the above recital of facts I believe that I have stated nothing which is not either uncontested on behalf of the respondents or supported beyond all doubt by incontestible evidence. The main ground upon which Mr. Inverarity has addressed us on behalf of his clients are two, viz. first, is it proved that this cotton was sent from Mhaswad for delivery to Rallis and not merely for storage in Gokuldas' compound and, secondly, is it shown against each accused that he was party to the fraud, if fraud there was ?
5. Dealing with the first of these questions, I cannot resist the conclusion that the cotton was despatched for no other purpose than for offer and delivery to Rallis' agent in fulfilment of the respondents' contract with Rallis. Rallis' agent is the witness Manjinath, who has been in the same service for the last twenty years and who is drawing a salary of Rs. 150 a N month. He deposes that it was in pursuance of this contract that Mansing sent to Rallis 30 dokras of cotton. He says that Mansing's clerk Madhavrao informed him of these facts. He explains that the actual agent Mr. Calfapoulo was temporarily absent from Jalgaon, and that therefore he himself proceeded to make a casual inspection of the goods, since in the absence of the agent it was customary for him to take delivery. His casual inspection revealed to him the fraud which was being attempted, and on Mr. Calfapoulo's return he was communicated with accordingly. Corroborative evidence is given by the broker Narayan Parashram and by Gokuldas' manager Mr. Tokarshi Nainshi. Mr. Tokarshi deposes that Mansing's clerk Madhav asked his permission to unload and store the cart loads of cotton brought from Mhaswad. Tokarshi at first refused permission to store, but he was assured by Narayan that the cotton was to be given to Ralli Brothers, whereupon permission was given for the carts to be unloaded. It has been suggested that possibly Madhav exceeded his instructions by representing that the cotton was for delivery to Rallis. There is, however, nothing whatever in the evidence to support such a suggestion. Madhav had no motive for exceeding his instructions, and on the record, I think, we are bound to hold that, in offering this cotton to Rallis, he was but carrying out the orders of his employers. It seems to me, indeed, that the whole case of -'' the respondents here is destroyed by the plain evidence that , in fact this cotton immediately on its arrival was subjected to inspection by Rallis' clerk, and afterwards by Mr. Calfapoulo on his return to the town. I am unable to understand what occasion there would have been for this inspection if the cotton had been brought in to Jalgaon not for delivery to Rallis but for indefinite storage in Gokuldas' compound.
6. Passing now to the second point as to the position occupied by each of these two respondents, it seems to me convenient to take first the case of the second respondent Jalalsing; for his case, in my opinion, is clearly beyond all possibility of doubt. He, it is proved, was the actual manager of this gin in which the fraudulent rollers were working. It was Jalalsing who day by day directed the working of the factory. When we remember the nature of the fraud, that it was a designed and elaborately prepared fraud carried out by means of mechanical alterations in the grooves of the rollers, it appears to me that we do not need, though in fact we have, evidence to prove that all this was done by the direct orders of Jalalsing himself.It seems to me that no reasonable man could suppose that it was done in any other way. That being so, I think that we may safely believe the evidence of the witness Fattu when he tells us that it was Jalalsing himself who directed that these fraudulent alterations should be made. The case of Jalalsing then is, I think, too clear for argument.
7. It remains only to consider the case of Mansing. Is it shown that he too was privy to this fraud Mr. Inverarity has contended that there is no proof of such privity, and that the Court should not rest a criminal conviction on mere possibilities or weak probabilities. It will be convenient, I think, to refer for a moment to the Evidence Act to ascertain precisely what is meant by 'proof in law. In the 3rd section of that Statute it is laid down that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. Is there then upon this record such proof that Mansing was privy to this fraud I am of opinion that there is. In the first place, Mansing was the elder brother in whose hands would naturally lie the main conduct of the business, and we find that the accounts run in Mansing's name. There is no question but that this cotton trade, like the other trade which the brothers carried on, was of joint, so that Mansing had a large personal interest in its conduct. The defence witness Shanker Vinayak, when questioned upon this point, deposes that all the business of the shop was carried on jointly. As regards cotton business, he says, Mansing supervised it. As regards the gin factory Jalalsing supervised it, that is to say that there was a mere division of labour for the purpose of convenience, but that the brothers were jointly interested in all the undertakings. It is clear, moreover, that Mansing's interest did not stop at that, but that he personally supervised the working of this gin. The evidence upon this point is almost uniform and is to the effect that Mansing was in the habit of visiting the gin three or four times a week. To these circumstances must be added this, that this particular contract with Rallis was signed by Mansing not carelessly or as a matter of unheeded routine but after the terms of it had been vary carefully explained to him.
8. It is quite clear, I think, that' this cotton business of the brothers formed a very important part of their family business though the direct management was entrusted to Jalalsing as a matter of convenience. I cannot believe that Jalalsing, the younger brother, either could or would have altered the machinery of the gin in this fraudulent manner without his consent and privity. It must be remembered that the profits of the fraud which was thus contemplated would belong equally to the two brothers. The witness Damle, whom I see no reason to distrust, tells us that the gin was worked by both the respondents in .consultation, and I do not find that the effect of this statement is destroyed by the later passages in cross-examination to which Mr. Inverarity drew the Court's attention. Mr. Tokarshi Nainshi, to whom I have referred above, says in one sentence that ' like Mansing other dealers too keep their cotton in our compound for sale.' It appears to me that from all this evidence only one conclusion clearly arises and that one conclusion ought to be accepted. The conclusion in my judgment is that this was not an isolated fraud which the younger brother on his own account perpetrated behind the back of the elder brother, but that both the brothers, who were jointly carrying on the business, were jointly interested in the results of the fraud and were jointly consenting and privy to it. I think, therefore, that the orders of acquittal passed by the Sessions Judge ought now to be reversed and we ought to restore the convictions and sentences passed by the Magistrate.
9. I concur.