Kuppuswami Aiyer, J.
1. This is a petition to revise the conviction and sentence passed by the Joint Magistrate of Coonoor in C.C. No. 328 of 1942 for an offence punishable under Section 266, Penal Code. The sentence imposed was a fine of Rs. 50. The charge was framed against M.A. Abdul Latiff & Co., of Coonoor market and was to the effect that the accused noted in column 2, namely, Abdul Lattiff & Co., was using false measures, namely, a brass half measure and another full iron measure seized by the Circle Inspector of Police from the shop on 29th September 1942, which were found to be false measures. Notice was issued to the company and one Mohamed Ibrahim appeared in person and pleaded not guilty. He it was that was also examined under Section 342, Criminal P.C. He was asked whether his shop was in possession of a brass measure and one full iron measure which were false measures. He replied that the measures were correct and that the measures in Court were seized from him.
2. In the judgment it is stated that M. Abdul Latiff was charged by the Coonoor Police with an offence under Section 266, Penal Code, and sentenced to a fine of Rs. 50. It is that Abdul Latiff that has filed this petition. His case is that he was only the senior partner of the firm of Abdul Latiff & Co., that he is generally a resident of Keeranur and that he was in Keeranur at the time of the alleged seizure of the measures. It is contended that the partner of a firm like the petitioner could not be convicted for an offence under Section 266 unless it is proved that he was present in the shop and was fraudulently using these false measures knowing that they were false. So far as he is concerned, there is no evidence to show that he knew the fact that they were false measures or that he had any fraudulent intent in having those measures. It is further stated that he ought not to have been convicted without specific notice being sent to him and without proving that he was the person that committed the crime.
3. I think it is unnecessary to go into this question, for even on the merits the conviction is not sustainable. The prosecution has to prove that the person in possession of a false measure knew it to be false and was in possession intending that the same may be fraudulently used. It is true that there is evidence that the two measures that were seized were false measures in the sense that the capacity of these two measures did not conform to the standard fixed by Government. But it has also to be proved that the person in possession knew them to be false. These two measures admittedly bear the stamp of the taluk office showing that they were checked and were found to be correct. If a dealer has a measure in his shop which has been tested by Government and certified to be a proper measure there is no reason to presume that he could have known that it was not a correct measure or that at the time when the stamp was put on this measure it was not up to the prescribed standard. The learned Magistrate observes in para. 4 of his judgment:
There has, therefore, been no attempt on the part of the accused to have them cheeked since, though he should know that in the course of time and with wear and tear the measures would have tended to get smaller.
4. Evidently the learned Magistrate did not notice that this is not a case of a false weight but a false measure of capacity and on account of wear and tear such measures would tend to get bigger instead of becoming smaller. It has not been shown that there is in law any duty cast on the shop-keeper to have the measures tested periodically. The learned Magistrate observes that if he did not have his measures tested regularly and if the measures were found to be short, there is a presumption that he was using them fraudulently. Such a presumption cannot arise unless there is evidence to show that he was aware of the fact that the measures were smaller than the standard ones. In these circumstances it could not be said that the prosecution has proved that the person in possession of these measures knew them to be false, especially when there is the stamp of the taluk office on them. In the result the conviction and sentence are set aside, and the fine, if already collected, will be refunded.