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Emperor Vs. Kanji Shivaji - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMumbai
Decided On
Case Number Criminal Appeal No. 424 of 1911
Judge
Reported in(1912)14BOMLR137
AppellantEmperor
RespondentKanji Shivaji
Excerpt:
penal code (act xlv of 1860), section 420-cheating-cotton bales-fraudulent admixture of inferior cotton.;the accused contracted to supply to the complainants -260 bales of fully good machine-tinned cotton. in fulfilment of this contract, he delivered 260 bales largely composed of cotton-seed, raw cotton and rubbish, carefully packed into the middle, while all round the sides was placed good ginned cotton. the percentage of the admixture was from 6 to 15 per cent., as against the normal admixture of 1/2 or 1 percent. the accused was shown to have business relations with a factory which owned ginning machines which were capable of-making the admixture, and was found to be present there whilst the machines were ginning such adulterated cotton.;that the accused was under the circumstances..........belongs to the two men mansing and jalalsing who, on the evidence in the case, were financing the present accused in his cotton ventures.8. the evidence shows, further, to my entire satisfaction, that when cotton is ginned the owner of that cotton or his agent is invariably present to watch the process. in this case, moreover, it is also shown that the accused either lived in the factory premises, or at least, regularly attended the factory. nor does the case rest there. for, when six days after the fraudulent delivery, a surprise visit was paid to this mhasawad factory by the mamlatdar and his party the accused was found present in the factory. lastly, and this is a point which seems-to me one of great consequence, it must be remembered that it was never accused's case in the court.....
Judgment:

Batchelor, J.

1. This is an appeal against an acquittal, and though the arguments have run to a considerable length, I am myself of opinion that the case is really a simple one. It appears to me that the learned Judge below involved himself in detail to such an extent that his attention was diverted from the cardinal points in the case. I regret to have to add that in my opinion the judgment is inaccurate in several statements as to the effect of the evidence, and that the strictures which the learned Judge allowed himself to pass upon the Committing Magistrate cannot be justified and should not have been made.

2. I note that counsel for the respondent has not attempted to support the acquittal on the grounds on which it was rested by the Sessions Judge, but has restricted himself to this contention, that whatever inaccuracies may be found in the judgment, they did not operate to the prejudice of the Crown case against the particular respondent now before us.

3. Then it was urged upon us that we are here confronted with a finding of the learned Sessions Judge, concurred in by two assessors, and we are invited to pause before upsetting such a decision, arrived at by the tribunal which had the witnesses before it. Full allowance must, no doubt, be made for the advantage which, in this respect, was possessed by the lower Court. At the same time the Government of Bombay have the right to appeal, and we are bound to form our opinion upon the evidence. This, moreover, is not a case where the decision turns upon the special credibility to be attached to one witness or another, so that we are not placed at so great a disadvantage as might otherwise be the case.

4. Now, the charge is that the accused cheated Ralli Brothers' agent, Mr. Calpapoulos, by delivering to him 260 dokras of cunningly adulterated cotton, by way of fulfilling a contract for the delivery of 26a dokras of fully good, machine-ginned cotton. That, I venture to think, is really a simple question of fact, and is to be decided upon evidence which is not specially difficult of appreciation.

5. The first great step to be taken by the prosecution in this case is not proved, but is also admitted. That is to say, it is admitted. This is to say, it is proved and admitted that the 260 dokras delivered in execution of the accused's contract were largely composed of cotton seed, Kapas and rubbish, carefully packed into the middle of the dokras, while all round the sides was placed good ginned cotton; the object of this manaeuvre being to evade the ordinary test, which is based upon the supposition that all the cotton to be found in any one dokra is of uniform character and quality. If, then, the accused can be fairly connected with this delivery, it seems to me clear that he is guilty of the offence charged against him. It is suggested that the prosecution have exaggerated the extent of the adulteration, but, upon the evidence, I cannot doubt that this admixture of inferior stuff was found in all the dokras and varied from 6 to 15 per cent., against a quantity of or 1 percent., which might be expected to be found in what I may call by contrast, honest dokras. Certainly the evidence is overwhelming that no such dokras as were tendered in satisfaction of the accused's contract could possibly have been honestly prepared or packed.

6. It seems to me that the next step in the case is equally clearly made out, and that accused's connection with this dishonest packing is established. The dokras were sent in fulfilment of his contract, and it matters little that the actual delivery was made, not by him personally, but by his agent his own brother, in his behalf. He gives no explanation of how his dokras came thus to be adulterated. But the evidence leaves no doubt upon the point.

7. For the fraud, it is plain, was perpetrated at the ginning factory of Mhasawad, which belongs to the two men Mansing and Jalalsing who, on the evidence in the case, were financing the present accused in his cotton ventures.

8. The evidence shows, further, to my entire satisfaction, that when cotton is ginned the owner of that cotton or his agent is invariably present to watch the process. In this case, moreover, it is also shown that the accused either lived in the factory premises, or at least, regularly attended the factory. Nor does the case rest there. For, when six days after the fraudulent delivery, a surprise visit was paid to this Mhasawad factory by the Mamlatdar and his party the accused was found present in the factory. Lastly, and this is a point which seems-to me one of great consequence, it must be remembered that it was never accused's case in the Court below that he had been the victim of fraud on the part of Mansing and Jalalsing.

9. There is further the important evidence of the state of affairs at the Mhasawad factory when this sudden visit was paid by the Mamlatdar, in company with the expert and independent engineer, Mr. Hormasji, At this time the accused had no knowledge that he was to be charged with any offence and no reason to anticipate this visit, but not only is he found present at the gin, but at the gin are found the precise instruments which appear to have been designed to effect this fraud- that is to say four rollers, with such large grooves that cotton seed would be passed through. Mr. Hormsji, whom I can discover no reason whatever to distrust, deposes that such large grooves as these could not be the result of accident or of use. They must, he says, have been prepared intentionally, that is, with the intention to commit just this kind of fraud. Three of these fraudulent rollers were actually working when the party arrived, though two of them were surreptitiously removed by the employees of the gin, while the inspection was in progress. This is deposed to by Mr. Hormasji whose evidence, I repeat that I accept.

10. It comes to this then, that not only was the accused found present at this gin, not only is it proved that he, or his agent for him, delivered this adulterated cotton to his purchaser, but he is found present at the place where, under his eyes, the machinery was at work, to produce just the fraud, which is charged against him here.

11. It was urged that the accused could not have been guilty of the fraud imputed, for such a fraud invited detection and was bound to be discovered without delay. As is usual in a defence of this kind, there are many answers to it. I will content myself with this one, that the fraud in this particular case was within an ace of succeeding, and it must be remembered that it was planned to operate on a day when Mr. Calpapoulas, the European Manager of Rallis', was temporarily absent from Jalgaon.

12. An argument was also sought to be based upon the circumstance that in fact Rallis actually pressed 133 out of these 260 dokras, and shipped them to Bombay in the ordinary course of business. It appears to me, that this circumstance has no bearing upon the present criminal prosecution. It is plain, through every page of this record, that Mr. Calpapoulas' business and interest was to obtain cotton, not to promote public justice. And when this is remembered his conduct throughout seems to me not only consistent with, .but strongly corroborative of, the truth of the case for the prosecution.

13. As to the argument that the two acquitted men Mansing and Jalalsing must, in this present appeal, be assumed to be guiltless I have nothing to say except that Mansing and are not now before the Court and the question of their guilt or innocence does not arise. The charge against them was one of abetment, the charge against the present accused was, and is, of substantive cheating.

14. On these grounds, it seems to me, the evidence on behalf of the Crown fully made out the charge upon which the accused was indicted, and I am of opinion that he ought to be found guilty upon that charge. The accused should, I think, be convicted of cheating under Section 420, Indian Penal Code, and sentenced to one year's rigorous imprisonment and to a fine of Rs. 500, or in default three months' further rigorous imprisonment.

Chandavarkar, J.

15. I concur.


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