1. Having heard and carefully considered the arguments addressed to us by learned Counsel on either side and the evidence on the record, we are of opinion that the facts proved are not sufficient to support the conviction of the petitioner for an offence to cheat.
2. Octroi is charged upon certain goods brought into the Sambulpur Municipality. When dutiable goods are exported, a refund of the duty is allowed. The goods have to be presented in bulk at the Octroi out-post with an application for a pass in a prescribed form. In the ordinary course, the application is handed by the applicant or his agent to the out-post mohurir who makes it over to the daroga. It is the duty of the latter to check the applications and having done so to certify the description and quantity of the goods actually presented. The check has to be attested by a member of the Municipal Committee and in this connection the relevant portion of Rule (4) of part B of the supplementary rules for the refund of Octroi duty (dated 14th March 1910) may be quoted:
A Municipal member must attest the check at the exit station out post....
In the absence of attestation, the exit mohurir shall not sign the chalan.
3. The importance of the exit mohurir's signature lies in the fact that when the check is complete, the chalan or pass is made oat by the daroga which has to be signed by the mohurir. Under Rule (1) of part A of the supplementary rules, above referred to, the absence of the mohurir's signature is one of the reasons for which an application for a refund should be rejected. Before refund is allowed, the railway receipt for the goods has also to be produced [Rule (2) of part A],
4. On the 31st May last, the petitioner, at the daroga's request, consented to act as Municipal member at the out-post in respect of goods brought there to be passed through. The request was made because the member whose turn it was to attend was ill. Among other goods brought to the out-post were some cart-loads of goods belonging to the petitioner's firm. In the application, the goods were entered as 460 bags of linseed and 40 bags of rice. As a matter of fact, however, only 230 bags of linseed were brought. It is equally a fact that the daroga, made out a chalan for the full number of bags specified in the application. These two facts in substance constitute the whole case against the petitioner.
5. Six other applications from persons or firms other than the petitioner's firm were received the same day and these were dealt with in the usual way. That is, the goods to which they referred were checked and chalans were made out which were attested by the petitioner.
6. The application of the petitioner's firm was not signed by the petitioner himself but his name was written by a gomastha. Prima facie, therefore, it is possible that the gomasta was acting independently and certainly every thing which he says as a witness for the prosecution cannot be treated as an admission by the petitioner. But it may be assumed that the petitioner was cognisant of the application of the details therein entered and of the number of bags brought to and passed through the out-post. Both the lower Courts have so found and there is evidence which to that extent supports their conclusions. The daroga and the mohurir are at variance on the question which of them received the application in the first instance, Bach says that he received it from the other. The theory of the prosecution--it is little more than a theory--is that the petitioner himself handed it to the daroga with whom he was in collusion. Let the question of collusion be put on one side for the moment and let it be supposed that the application was handed by the petitioner to the daroga. As to the latter then, it is obvious that whether he knew or did not know of the deficiency in the number of bags, he was very lax in the performance of his duties. He says himself that he was aware of the deficiency and that the petitioner, who is a big merchant and a Municipal member, assured him that he would make it good on the following day. If that be so, the two men were acting, if not in collusion, at any rate in concert, in doing an irregular thing and breaking the rules laid down for their observance. Still, their conduct was not necessarily dishonest. The laxity and irregularity certainly afford ground for suspicion, as laxity and irregularity often do. But the appropriate penalty for what is not shown to be more than an irregularity is to refuse the claim for a refund when made. The question is whether more than an irregularity is shown here and whether dishonesty of intention is established. As to that, it has to be observed that neither the petitioner the daroga did anything further to carry out the purpose imputed to them. That may be because the authorities came to know of what had been dona and made inquiries and took action. Nevertheless, the facts, as they stand, are, in our opinion, consistent with a more favourable view of the petitioner's conduct.
7. In the first place, in the case of the goods entered in the other six applications above mentioned, the daroga's check was, as we have said, attested by the petitioner in accordance with the rules. He did not, however, attest the check in respect of his own goods. The chalan for these goods was, therefore, one which the rules forbade the mohurir to sign and there is no suggestion that either the petitioner or the daroga made any attempt to induce the mohurrir to sign the chalan and he never did sign it. As it stands, therefore, the chalan does not appear to be a document on which under the rules a claim for a refund could be successfully made, even if it were accompanied by a railway receipt for the quantity of goods certified by the daroga. The Sessions Judge thinks that the petitioner could easily obtain such a railway receipt but that seems conjectural. At any rate, it is not shown that he made any attempt to obtain a receipt for 500 bags as representing the number actually passed through the out-post.
8. In the second place on the 1st June, the petitioner did try to send goods to the Railway Station. Some of his carts were intercepted and prevented from reaching the station by the Municipal authorities. No doubt, the sending of the goods direct to the station without passing them through the out-post was irregular, if it was intended to claim refund in respect of the goods. But it is not clear to us why the authorities took the course which they did take. They were quite right to be alert and watchful. But so far as we can see, there is no reason why the petitioner should not have been allowed an opportunity on the 1st June to make up the quantity mentioned in the application of the previous day. In other words, the action of the petitioner is capable of being regarded as affording an indication of honesty rather than of dishonesty.
9. On the whole, we are of opinion that the evidence on the record falls short of the evidence required to prove a dishonest mind or dishonest purpose on the part of the petitioner. We accordingly make the Rule absolute, set aside the conviction and sentence and direct that the petitioner be discharged from his bail bond. The fine imposed upon him, if paid, must be refunded.