Prinsep and Hill, JJ.
1. This is a reference made by the Chief Presidency Magistrate of Calcutta under Section 432 of the Code of Criminal Procedure, and arising out of a prosecution under Sections 61 and 64 of the Indian Stamp Act of 1879.
2. The persons accused are (1) Khetter Mohun Chowdhry; (2) 'the members of the firm of Nobin Chunder Coondoo & Co.,' namely, Nobin Chunder Coondoo, Radha Mohun Coondoo, Cheytan Chunder Coondoo, Gopal Chunder Coondoo and Jadu Nath Coondoo; and (3) Nobin Chunder Coondoo of the firm of Nobin Chunder Coondoo & Co.
3. From the formal charge sheet, it appears that the first accused and the members of the firm of Nobin Chunder Coondoo & Co. were charged with having, on the 24th November 1898, granted an unstamped receipt in respect of a sum of Rs. 200, and also with having, on a date which is not specified, refused to grant a duly stamped receipt. The third accused was charged in his individual capacity with having abetted the commission of these offences.
4. The scope of the prosecution has, however, been amplified by the Magistrate so as to embrace two other letters similar in their character to that of the 24th November 1898, and dated respectively the 11th July 1898 and the 3rd February 1899.
5. But inasmuch as the alteration does not affect the answers which we propose to return to the questions submitted to us, this point need not now be dwelt upon.
6. The facts of the case, in so far as they are at present material, may be shortly stated. It appears that the members of the firm of Nobin Chunder Coondoo & Co. carry on business in Calcutta as general dealers. In that character they sold goods from time to time to a Mr. Lee of Purneah. In payment (whether partial or full payment is immaterial) for these goods, Mr. Lee sent to the firm on the 6th July 1898 a cheque for Rs. 400, on the 19th October 1898 a cheque for Rs. 200, and on the 28th January 1899 a cheque for Us. 200. All these cheques were duly received and cashed by the firm, and the receipt of them was acknowledged by the firm by letters, dated respectively the 11th July 1898, the 24th November 1898, and the 3rd February 1899. None of those letters bore a receipt stamp. Then on the 8th February 1899 a letter was written to Mr. Lee by the firm, in answer apparently to a demand on his part for a stamped receipt in respect of the above payments, declining to grant him a stamped receipt. It is upon the basis of this letter that the second head of the charge seems to have been framed.
7. For the present purpose, we may assume that Mr. Lee's requisition, to which the letter of the 8th February appears to have been an answer, was, duly proved. We think it right, however, to direct the attention of the Magistrate to the matter, since strict proof of the requisition is quite as essential to a conviction under Section 64 of the Act as proof of the refusal, and it is not clear that the law in this respect has been complied with.
8. With respect to the relation in which the first accused stood at the time of the writing of the above letters to the firm of Nobin Chunder Coondoo & Co., the finding of the Magistrate is somewhat vague. At the outset of the order of reference, he is referred to as 'a writer employed occasionally by the firm to write English letters for them.' Later on he is described as 'a bazar writer who is employed by the firm of Nobin Chunder Coondoo to write their English letters,' and reference is made to an admission of the first accused in another trial that 'he signs all letters in English for the firm under a verbal authority given him by Nobin Chunder Coondoo.' Again it is said to be proved that the letters now in question were written and signed by the first accused, 'the manager of the firm stating that these letters... were all written by the first accused at his dictation and order, he being authorized to empower the first accused to write in the name of the firm'; and again, 'he, however, is more or less in the position of a mere amanuensis.... He states that his power, however, is derived from Nobin Chunder Coondoo, and Bycunto (the manager) says he dictated the letter to him and caused him to write and sign it.' It seems to us difficult upon these statements to arrive at a very precise conclusion as to the position which the Magistrate would assign to the first accused; but in the first question which he submits for our opinion he assumes as its basis that the letters were signed by the first accused under the authority of Nobin Chunder Coondoo, and it is on that footing, we think, that the question must be dealt with.
9. With respect to the remaining accused, the Magistrate has devoted some space to the consideration of the question whether they were all present in Calcutta at the time at which the letters on which the trial is based were written. The Magistrate has not indicated in what way he considered that the mere presence of the accused in Calcutta could affect the question of their guilt. He may, perhaps, have regarded it as bearing on the question of knowledge, but as to this he has arrived at no finding. But however this may be, the inquiry whether the members of the partnership were present in Calcutta or absent when the letters were written is, in our opinion, immaterial, their liability depending, not on whether they were present at the writing of the letters, or knew of the writing of them, but, on their being, in contemplation of law, the persons who signed the letters of acknowledgment or refusal to give the receipt.
10. To revert to the case of the first accused, he is charged, under Section 61 of the Act, with having signed the letters of acknowledgment, which were unquestionably chargeable with duty, without their being duly stamped, and under Section 64 with having refused to give a duly stamped receipt. The latter branch of the charge has, however, as we gather from the order of reference, been dropped by the Magistrate in so far as he is concerned, and properly so, for in order to bring home the charge under Section 64, it must be shown that the person accused had been required under Section 58 to give a receipt, and there is no pretence for saying that, in the case of the first accused, any such requisition had been made. But with respect to the charge under Section 61 the matter is not so clear. The first accused did undoubtedly write the name of the firm at the foot of the letters in question, and what has to be determined is whether, by doing so, he signed these letters in the sense in which the term is employed in the section, which makes it punishable to 'sign' otherwise than as a witness, &c.; By 'signing' here, we take it, is meant (so far as the present question is concerned) the writing of a person's name by himself or by his authority with the intention of authenticating a document as being that of the person whose name is so written. An ordinary agent authorized to sign on behalf of his principal would fall within this description, and consequently we think within the purview of the section, and the circumstance that the letters, that is, the body of them now in question, were written at the dictation of the manager of the firm is not, to our minds, sufficient to distinguish the case of the first accused from that of any other agent if, in fact, he signed the firm's name under the authority of the firm, as appears to have been the case. The agency of the first accused was necessitated by the circumstance that neither his employers nor their manager understood English; but this cannot make any difference. Letters signed by him in the firm's name within the scope of his authority would undoubtedly bind the firm in their transactions with third persons. And he appears to have had authority to affix the firm's name, at all events, to letters dictated to him by the manager of the business as those now in question are found to have been. We are aware that a good deal might, perhaps, be said under the circumstances of this case in support of the contrary view; but, on the whole, we are of opinion that the first accused did sign the letters in question in the sense of Section 61 of the Act, and that he may be properly convicted under that section.
11. With respect to the members of the firm of Nobin Chunder Coondoo &Co.;, we are of opinion that they are all liable to punishment both under Section 61 and Section 64 of the Act, provided that in the latter case the requisition under Section 58 of the Act has been established by evidence. We have no doubt that the term person' in Section 61, as well as in Section 64, includes the members of a trading partnership [see the General Clauses Act (X of 1897), Section 3, Clause 391; nor can it, we think, be questioned that the partners in the firm of Nobin Chunder Coondoo & Co. were in contemplation of law the persons who signed the letters acknowledging the receipt of Mr. Lee's cheques, and who refused by the letter of the 8th February 1899 to give him a receipt. The signatures were theirs, and the refusal was theirs, though the hand which actually wrote the letters was that of the first accused; and having regard to the general scope and intention of the Act, we do not think, as we have already indicated, that the knowledge of these accused enters as an element into the offence with which they are charged.
12. It is unnecessary that we should say anything as to the charge of abetment preferred against Nobin Chunder Coondoo.
13. Let the record of the ease with the foregoing remarks be sent to the Chief Presidency Magistrate.