R.S. Broomfield, Ag. C.J.
1. This is an application for revision by one Kanayalal Gujar against his conviction under Section 266 of the Indian Penal Code of the offence of being in possession of a false weight or measure known toi be false with the intention that the same may be fraudulently used. The conviction was by the First Class Magistrate of Junnar, and it was confirmed on appeal by the Sessions Judge of Poona.
2. The learned advocate, who appears for the applicant, contends, in the first place, that the measures used in this case were not false within the meaning of Section 266, and, in the second place, that a fraudulent intention has not been established.
3. The facts are very simple. The accused is a Sawkar and he deals in hirda. He had purchased a quantity of about sixteen maunds of hirda from one Savleram, and he got the hirda measured by means of two measures called adhotis. The measurement was made by Savleram the vendor himself with the assistance of another person. The adholis are old measures and are not in accordance with the standard prescribed by the Weights and Measures Act (Bom. IV of 1932). The patil of the village was present at the time, and he says that he warned the accused not to use these old measures, and that, as the accused persisted in using them:, when the measurement of the hirda was completed he seized the adholis and handed them over to the police.
4. The view taken by the lower Courts was that the adholis in question must be regarded as false measures, because they are smaller than the adholi measures prescribed by the Weights and Measures Act. Because they are smaller, and the accused deliberately used these old measures, it has been held that he must have acted fraudulently. This finding has been arrived at in spite of the evidence making it clear that Savleram, the vendor, was himself using these measures and had consented that they should be used. In our opinion, the conviction of the accused for an offence under Section 266 of the Indian Penal Code cannot be sustained on these facts.
5. Under Section 12 of the Weights and Measures Act it is provided that, subject to the provisions of Section 46 (with which we are not concerned), all dealings or contracts in any area in which the Act is in force shall be deemed to be had or made according to one of the standard weights or measures, and it shall not be lawful to use any other weight or measure in relation to any such dealing or contract. The section further provides that any dealing or contract, so far as it contravenes the provisions of the section, shall be void, unless it is proved that such dealing or contract was had or made without intention to contravene the said provisions. By Section 31 of the Act it is made a penal offence punishable with imprisonment or fine or both to use any weight or measure fraudulently. But Section 44 of the Act provides that no prosecution under the Act shall be instituted, except by or with the previous sanction of the Collector, or an officer specially empowered by the Collector, or by Government.
6. The Weights and Measures Act applies to the District of Poona, and it may be that the transaction between the parties was void under Section 12. Provided the use of the measures was fraudulent, the use would be an offence under Section 31, although, as I have said, prosecution under the Act would require sanction. But the fact that an offence may have been committed under the Weights and Measures Act does not make the measures false within the meaning of Section 266. According to the ordinary use of language, if a measure is described as false, that means that it is something other than what it purports to be. In Ratanlal's Law of Crimes a passage is cited from Stokes' Anglo-Indian Codes, Vol. I, to the effect that the word 'false' in Section 264 and the following sections means ' different from the instrument, weight or measure, which the offender and the person defrauded have fixed upon, expressly or by implication, with reference to their mutual dealings.' No suggestion has been made that the accused represented in any way that the adiholis were of the standard measure In fact the evidence makes it perfectly clear that he did nothing of the scat. We hold, therefore, that the measures were not false measures within the meaning of this section of the Penal Code.
7. We are also not satisfied that there was any fraud. The vendor Savleram consented to the use of these measures. Whether he did so with reluctance, or not does not, in our opinion, make any difference. In Emperor v. Harak Chand Marwari I.L.R. (1917) All. 84 Mr. Justice Tuball, in dealing with a somewhat similar case under Section 266, observed as follows (p. 86):
A necessary ingredient of an offence under section 266 is fraudulent intent. One knows full well that the measures of weight and measures of length which are in use in this country in villages and towns differ considerably from the standard measures laid down by Government under Act II of 1889. Where both purchaser and seller are well aware of the actual measure being used, there can be no question of fraudulent intent. It is only when the seller purports to sell according to) a certain standard and sells below that standard, that he can be said to be guilty of fraud.
8. In the present case it appears to have been agreed between the accused and Savleram that the hirda was to be measured by the adholis produced by the accused, and we think it quite impossible to hold that under the circumstances the accused had a fraudulent intent.
9. The conviction and sentence must be set aside. The fine must be refunded.