# Virendra v. The State of ~Punjab and Another

- **Citation:** [1958] 1 S.C.R. 328
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Criminal Appeal No. 200of1956
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/virendra-v-the-state-of-punjab-and-another-1458
- **Pages:** 33

## Headnote

1957
Virendra
v.
The State of
~Punjab
and
Another
Das C, J.
1957
September6
328
SUPREME COURT
REPORTS
[19581
section. It is surprising how in the same statute the
two sections came to be worded differently.
For reasons stated above petition No. 95 of 1957
(Virendra v. The State of Punjab) which impugns the
Notifications issued under s. 2(l)(a) must be dismissed
and petition No. 96 of 1957 (K. Narendra v. The State
of Punjab) which challenges s. 3 must be allowed.
In
the circumstances of these cases we make no order as
to the costs of these applications.
Petition No. 95 of 1957 dismissed.
Petition No. 96 of 1957 allowed.
MOBARIK ALI AHMED
v.
THE STATE OF BOMBAY
(JAGANNADHADAS, JAFER
GOVINDA MENON
IMAM
JJ.)
and
Criminal Law-Foreigner-Resident outside India-Offence
committed in India-Conviction by Indian Court under the Indian
Penal Code-Legality-Offender extradited and brought to IndiaArrest for a fresh offence and conviction-Validity-Charge under
s. 420 read with s. 34 of the Indian Penal Code-Conviction under
s. 420 a/one-Legality-Extradition Act, 1870 (44 & 34 Viet. c. 52),
s. 3 (2)-Fugitive Offenders Act, 1881 (44 & 45 Viet. c. 69), s. 8Indian Penal Code (Act XLV of 1860), ss. 2, 34, 420.
·
The appellant,
a Pakistani national doing business
in
Karachi, was convicted of the offence of cheating under s. 420 of
the Indian Penal Code. The prosecution case was that with a
dishonest intention he made false representations
to
the
ci>mplainant at Bombay through letters, telegrams and telephone
talks, that he had ready stock of rice, that he had reserved
shipping space and on receipt of money he would be in a position
to ship the rice forthwith, and that the complainant who was
anxious to import rice urgently sent the amount to the appellant
on the belief of such representations. It was contended for the
appellant that the conviction was sad on the grounds inter alia
{I) that he was a Pakistani national who, during the entire period
of the commission of the offence, never stepped into India and
was only at Karachi and that he could ·not be tried by an Indian
Court nor be punishable under the Indian Penal Code, (2) that he
S.C.R.
SUPREME COURT REPOR.'.fS
329
was brought over from England, where he happened to be, by
1957
virtue of
ex~radition .proceedings in
c<;mn~ctioa
wit~ another MobarikA/i Ahmid
offence the tnal for which was then pendmg m the Sess10ns Court
v.
at Bombay, and that he could not be validly tried and convicted
The"Btate of
for a different offence like the present, and (3) that the charge
Bomhay
being one under s. 420 read with s. 34 of the Indian Penal Code
for alleged conjoint acts of himself along with three others and
those three not being before the Court, and himself not having
, been in Bombay at the time, the conviction was unsustainable.
Held : (I) that, on the facts, all the ingredients constituting
the offence of' cheating under s. 420 of the Indian Penal Code
having occurred in Bombay, the offence was committed there and
that, though the appellant 'was not corporeally present in India
at the time of the commission of the offence, his conviction under
the Indian Penal Code was valid in view of the terms of s. 2 of
the Code;
(2) that, as the appellant was surrendered to the
Indian
authorities under the Fugitive Offenders Act, 1881, and there was
no provision in that Act preventing arrest in India for the
purpose of a trial in respcet of a fresh offence, his
conviction
following upon his trial was valid.
H. N. Rishbud v. The State of Delhi, (1955) 1 S.C.R. 1150,
relied on.
(3) that the conviction of the appellant of the offence
of
s. 420 was valid, though the charge was one under s. 420 read
with s. 34. as the actual findings in the case could support a conviction under s. 420 itself.
Willie (William Slaney) v. The State of Madhya Pradesh,
(1955) 2 S.C.R. 1140, relied on.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 200of1956.
Appeal by special leave from the judgment and
order dated July 20, 1954, of

## Text

_Characters 0–39,671 of 73,652. This is a partial read: ask again with offset=39671 for what follows._

1957
Virendra
v.
The State of
~Punjab
and
Another
Das C, J.
1957
September6
328
SUPREME COURT
REPORTS
[19581
section. It is surprising how in the same statute the
two sections came to be worded differently.
For reasons stated above petition No. 95 of 1957
(Virendra v. The State of Punjab) which impugns the
Notifications issued under s. 2(l)(a) must be dismissed
and petition No. 96 of 1957 (K. Narendra v. The State
of Punjab) which challenges s. 3 must be allowed.
In
the circumstances of these cases we make no order as
to the costs of these applications.
Petition No. 95 of 1957 dismissed.
Petition No. 96 of 1957 allowed.
MOBARIK ALI AHMED
v.
THE STATE OF BOMBAY
(JAGANNADHADAS, JAFER
GOVINDA MENON
IMAM
JJ.)
and
Criminal Law-Foreigner-Resident outside India-Offence
committed in India-Conviction by Indian Court under the Indian
Penal Code-Legality-Offender extradited and brought to IndiaArrest for a fresh offence and conviction-Validity-Charge under
s. 420 read with s. 34 of the Indian Penal Code-Conviction under
s. 420 a/one-Legality-Extradition Act, 1870 (44 & 34 Viet. c. 52),
s. 3 (2)-Fugitive Offenders Act, 1881 (44 & 45 Viet. c. 69), s. 8Indian Penal Code (Act XLV of 1860), ss. 2, 34, 420.
·
The appellant,
a Pakistani national doing business
in
Karachi, was convicted of the offence of cheating under s. 420 of
the Indian Penal Code. The prosecution case was that with a
dishonest intention he made false representations
to
the
ci>mplainant at Bombay through letters, telegrams and telephone
talks, that he had ready stock of rice, that he had reserved
shipping space and on receipt of money he would be in a position
to ship the rice forthwith, and that the complainant who was
anxious to import rice urgently sent the amount to the appellant
on the belief of such representations. It was contended for the
appellant that the conviction was sad on the grounds inter alia
{I) that he was a Pakistani national who, during the entire period
of the commission of the offence, never stepped into India and
was only at Karachi and that he could ·not be tried by an Indian
Court nor be punishable under the Indian Penal Code, (2) that he
S.C.R.
SUPREME COURT REPOR.'.fS
329
was brought over from England, where he happened to be, by
1957
virtue of
ex~radition .proceedings in
c<;mn~ctioa
wit~ another MobarikA/i Ahmid
offence the tnal for which was then pendmg m the Sess10ns Court
v.
at Bombay, and that he could not be validly tried and convicted
The"Btate of
for a different offence like the present, and (3) that the charge
Bomhay
being one under s. 420 read with s. 34 of the Indian Penal Code
for alleged conjoint acts of himself along with three others and
those three not being before the Court, and himself not having
, been in Bombay at the time, the conviction was unsustainable.
Held : (I) that, on the facts, all the ingredients constituting
the offence of' cheating under s. 420 of the Indian Penal Code
having occurred in Bombay, the offence was committed there and
that, though the appellant 'was not corporeally present in India
at the time of the commission of the offence, his conviction under
the Indian Penal Code was valid in view of the terms of s. 2 of
the Code;
(2) that, as the appellant was surrendered to the
Indian
authorities under the Fugitive Offenders Act, 1881, and there was
no provision in that Act preventing arrest in India for the
purpose of a trial in respcet of a fresh offence, his
conviction
following upon his trial was valid.
H. N. Rishbud v. The State of Delhi, (1955) 1 S.C.R. 1150,
relied on.
(3) that the conviction of the appellant of the offence
of
s. 420 was valid, though the charge was one under s. 420 read
with s. 34. as the actual findings in the case could support a conviction under s. 420 itself.
Willie (William Slaney) v. The State of Madhya Pradesh,
(1955) 2 S.C.R. 1140, relied on.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 200of1956.
Appeal by special leave from the judgment and
order dated July 20, 1954, of the Bombay High Co11rt
in Criminal Appeal No. 1596 of 1953, arising out of
the judgment and order dated September 23, 1953, of
the
Court
of the
Additional
Chief Presidency
Magistrate, 3rd Court, Esplanade, Bombay, in Case
No. 31/W of 1953.
A. P. Gandhi and J.B. Dadachanji, for the appellant.
H. J: Umrigar and R. H. Dhebar, for the respondent..
1957. September 6. The following Judgment of the
Court was delivered by
330
S.UPREME COURT REPORTS
[1958]
~
57
l\GANNADHAOAS .1.-This is an appeal by special
"""w;k Ali Ah11wd leave.
The appellant before us was convicted by the
The I;,,,. 01
learned Presidency Magistrate, Third Court, Esplanade,
nomhay
·
Bombay, for the offence of cheating under s. 420 read
with s. 34 of the Indian Penal Code on three counts of
[J;.'111111ad/!ada.•·
J. cheating, vi:: .. the first relating to a sum of Rs. 81,000,
the second relating to a sum of Rs. 2.30,000, and the
third
relatin!~ to a sum 01· Rs. 2.36.900.
He was
sentenced by- the learned
Magistrate to two
years
rigorous imprisonment and a fine of Rs. l ,000 on the
first count, to twenty-two months rigorous imprisonment and a fine of Rs. 1,000 on the second count, and
two months rigorous imprisonment on the third count.
It was directed that the substantive sentences only on
the second and third counts are to run concurrently.
The prosecution was initiated on a private complaint
filed by one Luis Antonio Correa on June 30, I 952,
against four persons of whom the
appellant
was
designated therein as the first accused and one Sa ntram
as the fourth
accused and two other persons,
A. A. Rowji and S. A. Rowji, as second and third
accused respectively.
Bailable warrants were issued
against all the four by the learned Magistrate but it
appears that warrants could not be executed against
accused 2, 3 and 4.
They were reported as absconding.
The trial was accordingly separated as against them
and proceeded only as against (the first accused) the
appellant herein. The convictions and sentences have
been confirmed on appeal by the
High
Court
at
Bombay.
~he complainant is a businessman from Goa and
was the director of a Ji.rm in Goa which was trading in
the name of Colonial Limitada doing
business in
import and export.
At the relevant time there was
severe scarcity of rice in Goa. The complainant was
accordingly anxious to import rice urgently into Goa.
He got into touch with a friend of his by name Rosario
Carvalho in Bomhay who was doing business as a
commission agent. Carvalho in his turn got into touch
with one Jasawalla who was also doing business of
con:mission agent at Bombay in the name of Universal
Supply Corporation. This Jasawalla was previously
S.C.R.
SUPREME COURT REPORTS
331
in correspondence with the appellant about business
1957
in rice. The appellant was at the time in Karachi and Mobarik Ali Ahme<i
was doing business in the name of Atlas Industrial and
v.
The State oj
Trading Corporation and also in the name of Ifthiar
Bombay
Ahmed & Co. The telegraphic address of the complain- ,
_,. ,
J
.
f
ll
.agan11ac111aCtOs
.
ant was Colodmgco and that o the appe ant was
Ifthy. As a result of exchange of telegrams, letters
and telephone messages between Jasawalla and the
appellant on one side, Jasawalla and the complainant
on. the other, followed up by direct contacts between
the appellant and the complainant through telephone,
telegrams and letters, a contraet was brought about
for purchase, by the complainant from the appellant,
of 1,200 tons of rice at the rate of£ 51 per ton. to be
shipped from Karachi to Goa. The contract appears
originally to have been for payment of the price in
sterling at Karachi. But it is the prosecution case
(which has been accepted by both the courts below)
that a subsequent arrangement was arrived at between
the parties by which the payment was to be made in
Bombay in Indian currency, in view of the difficulties
experienced in opening a letter of credit in a Bank at
Karachi through the Portuguese Bank at Goa. It is
also the prosecution case, which has been accepted,
that the understanding was that 25 % of the price was
to be paid as advance by the complainant to Jasawalla
as the agent of the appeJlant for this purpose and that
on receiving intimation thereof the appellant was to
ship the rice and that the balance of the purchase
money was to be paid on presentation of the shipping
documents. It appears that at a later
stage the
quantity of rice to be ·supplied was raised to 2,000 tons
and advance to be paid to 50 % of the total stipulated
price. It is also the prosecution case that the appellant
represented at various stages by
telephone talks,
telegrams, and letters, to Jasawalla as well as to the
complainant directly that he had adequate stock of
rice and that he had reserved shipping space in certain
steamers which were about to leave for Goa and that
he was in a position to ship the rice on being satisfied
· that the requisite advance was paid. It is in evidence
that on receiving such assurances, the complainant
332
SUPREME COURT REPORTS
[1958)
195:
paid moneys as shown below to Jasawalla and obtainMobarik Ali Ahmeded receipts from him, purporting to be the agent of the
The ~late of appellant.
Bombay
1.
On July 23, 1951
Rs.
81,000
lagannadhadas J.
2.
On August 28, 1951
Rs. 2,30,000
3.
On August 29, 19.51
Rs. 2,36,900
All these amounts are held to have been received by
the appellant in due course. It is admitted, however,
that no rice was in fact shipped to the complainant
and the amounts have not been returned back to the
complainant. The defence of the appellant is to the
effect that the amounts were not in fact paid to any
person who was his agent and not in fact received by
him at all and that he was unable to supply the rice
as the complainant did not comply with the terms of
the contract by opening a letter of credit at Karachi
or paying him in Pakistani currency. This defence
has not been accepted and the appellant has
been
found guilty as charged by the courts below.
He was
therefore convicted and sentenced as above stated.
ft is necessary to set out somewhat in detail the
essential facts held to have been proved by the courts
below to appreciate the legal contentions that have
been urged before us.
As previously stated, the cgmplainant got into touch with his friend Carvalho of
Bombay to help him in getting rice for consumption in
Goa and Carvalho in turn contracted Jasawalla for the
purpose. Before that time, Jasawalla, in the course of
his usual business, had received a letter, Ex. 0, dated
June 5, 1951, from the appellant offering that
he
would be prepared to do business in rice if a letter of
credit is opened or cash payment is made in Karachi.
Carvalho came to know of this from Jasawalla and
informed the complainant. Jasawalla also wrote a
letter to the complainant. The complainant sent a
telegram showing his willingness to open credit, if
1,200 tons of rice could be shipped to Goa. Jasawalla
wrote a letter, Ex. P, dated June 6,
1951, to the
appellant quoting the telegram of the
complainant
and asking for an offer. The appellant by his letter
dated June 10 to Jasawalla, offered to supply as
S.C.R.
SUPREME COURT REPORTS
333
much rice as he wanted and demanded 25 % cash
1957
payment as advance. After
~ome tripartite corres- Mobarik Ali Ahmed
pondence, the appellant by his letter dated June 26,
v.
.
agreed to accept money in Bombay at the price of
The State 01
£ 51 per ton of rice. Jasawalla by 'telegram dated
Bombay
July 5, 1951, informed the
appellant that the Goalaga11nadhadas J.
party accepted the 25 % arrangement. The appellant
by a letter dated July 7, accepted the offer but wanted
50 % deposit and gave time till the 10th, suggesting
that since the rice was scarce the deal must be finished
at once. Jasawalla intimated this to the complainant
and asked him to start at once with money and
informed him that if there was delay the party at .the
other end would claim damages. The appellant did
not get any information for the next few days.
He
accordingly sent one Santram (accused 4 in the
·complaint) to Bombay as his agent for discussing the
matter in question and authorising him to fix the deal
on the spot. Santram appears to have fixed the
bargain for
shipping
1,200 tons of rice on
the
complainant paying an advance sum of Rs. 1,50,000
at Bombay as 25 % deposit towards the price of the
said 1,200 tons of rice. On receipt of this information
the appellant wrote a letter dated July 12, to
Jasawalla wherein he confirmed the arrangement
arrived at
by Santram. Jasawalla
was thereupon
taken by. Santram to accused 2 and 3. They were
introduced to him as the agents of the appellant who
were to receive the moneys in this
transaction on
appellant's behalf. At the same time the appellant
was also writing letters to Jasawalla which seem to
indicate that he was trying to shift his position by
asking for 50 % as advance deposit. For a few days
thereafter the complainant did not turn up at Bombay
with the funds and the appellant by his telegram dated
July 16, asked Jasawalla why there is no further information about the transaction. By a telegram dated
July 17, he informed J asawalla that S. S. Olinda was
sailing in a few days and that it would be too late to
ship the rice and that the matter should be hurried
up. On July 18, the complainant sent a telegram to
Jasawalla informing him that he -was coming with
334
SUPREME
COURT
REPORTS
[1958]
19s1
funds and that if the rice was not sl11pped it may be
MobarikAH A/1111edshipped by SS. Olinda which was about to start on
.
'·
July 21. The appellant also sent a telegram to
r11~0~;r,;~ of
Jasawalla on July 18, asking why the deal was not
·
coming on and that he had already reserved space by
.loga1111adhmlas J.
f h 21
O J 1 19
·
J
)J
the steamer o t e
st.
n u y
agam
asawa a
received a telegram from the appellant informing him
definitely that space was reserved in the steamer. The
complainant also sent a telegram to Jasawalla on the
same day informing him that he was coming and that
at least 500
tons must be shipped at once. The
complainant arrived at
Bombay on July 20.
The
indent, Ex. A, was prepared in triplicate and signed
by the complainant on the same day.
The complainant
brought cheques and drafts to the tune of Rs. 81,000.
It would appear that at this stage the complainant
was asking that he should be allowed (for the time
being) to deposit only Rs. 50,000 as deposit for a shipment of 500
tons.
But appellant insisted
that
Rs. 1,50,000 should be paid as advance for 1,200 tons.
On or about July 21, the appellant sent a letter to
Jasawalla with a
pro-forma receipt for Rs. 1,50,000
signed by him to be made use of by Jasawalla in whatever manner he thought proper in connection with the
transaction then under way.
The said receipt was
shown to the complainant who was shown also the
other correspondence that was received from the
appellant.
Jasawalla by his letter dated July 22, to
the appellant confirmed the shipment of the deal of
1,200 tons of rice and intimated that some portion of
the money was immediately ready and some portion
would be brought in a day or two, totalling over
Rs. 80,000 and that the balance would be paid after
hearing about shipment of 1,200 tons.
This
was
agreed to by the appellant.
On July 23, Jasawalla
telephoned to the appellant that he was going to pay
the money to accused 2 as directed by the appellant.
In the afternoon of that very day the parties went to
the office of accused 2 and there was again a further
conversation on the phone with the appellant who, on.
the phone, conveyed the assurance that payment to
accused 2 would be as good as payment to himself.
S.C.R.
SUPREME
COURT
REPORTS
335
The complainant and Carvalho were hearing both the
1957
morning and afternoon talks between the appeHant Mobarik Ali Ahmed
and
Jasawalla,
on a second line. Thereupon the
Th s
complainant paid the sum of Rs. 81,000 to Jasawalla
~o,:b~~ of
who passed a receipt (Ex. B) therefor on behalf of the ,
d'h d
1
Jl
d h
· J
d
~aganna a as
.
appe ant an
t e saio amount was
passe
on' to
accused 2.
The fact of this payment was intimated
to the appellant by telephone as well as by a telegram.
A letter was also written on July 24 to the appellant
referring to the telephone calls and
telegram and
informing him that the amount was paid.
He was
also asked therein to ship the rice at once promising
that the balance will be paid in a week.
On July 23
itself the appellant sent a telegram saying that he
had received the messages and was trying to book
1,000 tons.
According to the prosecution case the
appellant having received the sum of Rs. 81,000 as
above, changed his front from July 24, 1951. The
facts ·held to have been proved in respect of this
change of front may now be stated.
On July 24, 1951, the appellant sent to Jasawalla a
telegram mentioning difficulties
created by the
Exchange Controller in shipping the goods. When
Jasawalla conveyed his protest and insisted upon the
shipping of the goods at once, the appellant sent a
telegram on July 25, informing him that the difficulties ·were of a minor character and that the space for
shipping was
already
booked. Jasawalla by his
telegram of the same date asked for confirmation of
loading of 1,200 tons by S.S. Olinda and requested
him. that if the full quantity could not be loaded, a
portion thereof
might be sent immediately. The
appellant by his letter dated July 26, acknowledged
Jasawalla's letter dated 23rd (informing him to about
the payment of Rs. 81,000) and intimated that the
rice would be shipped by the next steamer S.S. Umaria
sailing for
Malaya and
that the said steamer
can touch Goa if the quantity of rice to be shipped
is raised to 2,000 tons. By a letter dated July 26,
Jasawalla protested against the new condition. The
complainant sent a letter dated July 27, to Jasawalla
asking whether the rice was shipped by S.S. Olinda
336
SUPREME
COURT
REPORTS [1958]
1957
or not. On July 27, the appellant sent a telegram to
.'ifobadk Ali AhmedJasawalla asking for bank-guaragtee (for payment of
11., ~tate 01
balance). Jt does not appear that any question of
Bombay
bank-guarantee was
raised in the
correspondence
.!.igmmadhadas J. between the parties, after Santram (accused 4) fixed
up the deal on the footing of payment of advance of
Rs. 1.50.000, in cash
at Bombay by way of 25 ~;.
deposit. On receiving this letter raising the question
of bank-guarantee, Jasawalla wrote back on the 27th
to the appellant about the change of front and charging
him with cheating and not fulfilling his part of
the contract after receiying the money.
By a letter
dated July 30 and also a telegram of the same date
the appellant replied to Jasawalla wherein he promised
to send the rice by S.S. Umarai and also threatened
to break off negotiations if the
parties had
no
confidence in him.
Jasawalla thereupon asked the
appellant by telegram to fix the sailing date of S.S.
Umaria and inform him.
The appellant wrote back
on August l, admitting
receipt of
letters from
Jasawalla and attempting to pacify him.
Jasawalla
replied thanking him and asked for a clear date of the
sailing of S.S. Umaria. By that time Jasawalla had
made enquiries with Mackinons & .Mackenzie (shipping
agents) and was informed that no shipping space had
been reserved by the appellant and found the statement of the appellant in this behalf to be false.
Jasawalla sent copies of this correspondence
between
him and the
appellant to the complainant. That
correspondence indicated the appellant's position to
be that the rice would be shipped by S.S.
Umaria
only if the load could be increased to 2,000 tons and
that the appellant stated that he got
the sailing of
S. S. Umarai delayed by two days for the purpose.
The complainant thereupon informed Jasawalla that
he was prepared to accept the new deal for 2,000 tons.
Jasawalla by his telegram dated August 2, to the
appellant confirmed this new arrangement and by
another telegram dated August 3, asked the appellant
to hurry up with the
shipment.
Thereafter
the
appellant raised a fresh matter. On August 6, the
appellant sent a direct telegram to the complainant
S.C.R.
SUPREME COURT REPORTS
337
and asked him to request the Portuguese Pro-Consul
19~
at Karachi to obtain
exchange~guarantee. Between Mobarik Ali Ahmed
August 7 and 12, several letters and telegrams passed
Th
~tat 1
between the complainant and Jasawalla on the one
'Iwmba~
0
hand and the appellant on the other. As a result of J'.
dh-cl
1
efforts made in this interval, it appears that the Proaganna u us ·
Consul, Mr. Alphonso, was prepared to give the
exchange-guarantee of the State Bank of Pakistan for
payment in.sterling of the price of rice. The appellant
then by his letter dated
August
13,
informed
Jasawalla that the State Bank was not insistirrn on
exchange-guarantee but that it would be sufficient if
a certificate was issued by the Portuguese authority
that the rice
was
required for replenishing
the ration shops in Goa. A similar letter was .also
written by the appellant on August
14, to the
complainant.
Thereupon
the complainant
and
Jsawalla approached the concerned authority at Goa,
viz., one Mr. Campos, the Trade Agent to the Portuguese
Government. Mr. Campos thereupon sent telegram
on August 16, to the State Bank of Pakistan, to the
Pro-Consul, Mr. Alphonso, and to the appellant certifying that rice was required for replenishing the ration
shops in Goa.
After this there was a further change of tactics by
the appellant. By a telegram dated August 20, 1951,
the appellant informed the
complainant that the
papers before the Government were ready and that he
had done his best but that payment must be made.
In reply the complainant sent a telegram to the appellant on the same date stating that he did not understand the contents of his telegram and promised to
send the balance on loading. The complainant also
informed Jasawalla about these telegrams exchanged
between him and the appellant. This was followed up
by some further correspondence between the parties on
August 22. The appellant sent telegrams both to the
complainant and to Jasawalla demanding 90 % deposit
as advance and threatened to break off if it was not
complied with. Thereupon Jasawalla sent a telegram
on the 22nd to the complainant to come to Bombay.
He informed the appellant the same day that the
M2SC/61-3
338
SUPREME COURT REPORTS
[1958]
i957
complainant was coming down to Bombay to arrange
,\fobar;k AN Al111ie<1for 50 % deposit and asked the appellant to start loadv.
ing. On the 24th he wrote also a letter to the appel111~ State of
Bombay
]ant to the effect that the complainant would pay 50 %
1
Iii J advance minus the amount already paid and informed
""w"'"' "''"'' · him that the complainant would fly to Karachi. to
supervise the loading. The appellant thereupon 5ent
a telegram dated the 25th informing Jasawa!la that
everything was ready but hinted about the opening of
a Jetter of credit. Again on August 27, the appellant
sent a telegram to Jasawalla that stocks could not be
released unless the arrangement was fulfilled, i.e., 90 %
amount was paid. The complainant came to Bombay
with drafts and cheques to the tune of about
Rs .. 4,75,000 and contacted Jasawalla.
He contacted
also the appellant on phone. He paid the sum of
Rs. 2,30,000 on August 28, 1951, to Jasawalla who
passed a receipt. Ex. F, therefor, on behalf of the
appellant. On August 29, the complainant paid
another sum of Rs. 2,36,900 to Jasawalla who passed
a receipt, Ex. G, therefor, on behalf of the appellant.
1t is the case of the prosecution that both these were
also passed on to the second accused and through him
to the appellant and that the appellant acknowledged
receipt of these amounts in his correspondence and
that case has been also accepted.
On the 29th itself
the appellant sent a telegram to Jasawalla as follows;
"Part consignment received, rest tomorrow, Pentakota for the I st certain goods required alongside."
On receiving this telegram Jasawalla informed him by
a telegram dated August 31, that he was shocked that
no space was reserved, though everything had been
done on his side. The appellant sent a reply by telegram dated September l, 1951, protesting against the
language used by Jasawalla in the telegram and informed him that space was reserved but the Company
could not wait as the goods could not be shipped.
On
September 5, the appellant informed Jasawalla by a
letter that space was reserved by S.S. Pentakota and
that everything was ready for shipment.
Meanwhile
the complainant feeling very nervous and
anxious
about the fulfilment of the transaction proceeded in
S.C.R.
SUPREME COURT REPORTS
339
person to Karachi on September 4. According to the
1957
complainant he stayed at Karachi for about two weeks.
-
He was shown some godowns containing rice bags Mobarik Ali Ahmed
suggesting that they belonged to the appellant and
The ~rare of
were ready for shipment. But he was not afforded
Bombay
any opportunity for verifying that the stock was Jaga111iadhada1 J.
intended for shipment in respect of his . transaction.
The complainant went to Karachi on a Visa for three
months. But after a stay of less than two weeks he
was served with a quit-order from
the
Pakistan
Government on September 18, and was bundled out of
Karachi. It is the complainant's impression that this
was manoeuvred by the appellant. On his return back,
correspondence was again resumed between the appellant and the complainant. By a letter dated September 21, the appellant promised to ship the goods by
S.S. Ismalia which would not be sailing in September
but would leave on October 3. On September 23, the
appellant sent another letter stating that S.S. Ismalia
was arriving 011 October 3 and not on September 26.
On October 3, the appellant wrote another letter to the
complainant informing him that S.S. Jsmalia was not
available. The complainant thereafter sent a telegram
to the appellant dated September 29, calling upon him
to ship the goods by S.S. Shahjehan if S.S. Ismalia was
not available. The complainant by a further letter
dated October I, called upon the appellant to ship the
rice at once.
By a telegram dated October 2,
the
appellant informed the complainant that S.S. Shahjehan was arriving the next day and that he would wire
the position.
By his telegram dated the 3rd, he
informed the
complainant that the loading had
commenced. On October 6, the complainant received
another telegram from the appellant that he would
not ship per S.S. Shahjehan until demands in his letter
dated September 29
are complied with. It is the
complainant's case that no such letter was ever
received by him. Jasawalla also informed the appellant that no letter dated September 29 was received.
By telegram dated October 8, 1951, Jasawalla called
upon the appellant to refund the money and cancel the
contract. On October 12, the appellant sent a telegram
340
SUPREME COURT
REPORTS
[1958 ]
~:2
which conveyed a suggestion that he would ship rice
Mobarik Ali Ahmed by S.S. Shahjehan arriving on October 19, instead of
The ~tate of
Octob~.r 9. There were som_e further telegrams exchangBombay
ed.
Fmally the
complamant sent a
telegram on
Jagannadhadas J. October 26, calling upon the appellant to ship rice
immediately or refund the money.
This was followed
by further exchange of correspondence which ultimately
resulted in a letter by the appellant to the complainant
dated November 17, denying all the allegations made
against him.
The above facts were held to have been proved by
the courts below on the basis of good deal of correspondence between the parties consisting of telegrams.
and letters and supported by the oral evidence mainly
of three persons, viz., (1) the complainant, (2) Jasawalla, and (3) an ex-employee of the appellant at
Karachi by name Sequeria. All this evidence has
been accepted by the courts below after full consideration of the various comments and criticisms against
acceptability of the same:
Jn a case of this kind a question may well arise at
the outset whether the evidence discloses only a breach
of civil liability or a criminal offence. That of course
would depend upon whether the complainant in parting
with his money to the tune of about Rs. 5~ Jakhs acted
on the representations of the appellant and in belief of
the truth thereof and whether those representations,
when made were in fact false to the knowledge of the
appellant and whether the appellant had a dishonest
intention from the outset. Both the courts below have
found these facts specifically against the appellant in
categorical terms. These being questions of fact are
no longer open to challenge in this Court before us in
an appeal on special leave.
Learned counsel for the appellant accordingly raised
before us the following contentions:
I. The appellant is a Pakistani national, who,
during the entire period of the commission of the
offence never stepped into India and was
only at
Karachi. Hence he committed no offence punishable
under the Indian Penal Code and cannot be tried by
an Indian Court.
S.C.R.
SUPREME COURT REPORTS
341
2. The appellant was brought over from England,
19s7
where he happened to be, by virtue of extradition Mobarikiii Ahmed
proceedings in connection with another offence, the
The ~tate 01
trial for which was then pending in the Sessions Court
· Bombay
at. Bombay an? accordingly. he could not b~ validly Jagannadhadas J.
tned, and convicted for a different offence hke the
present.
.
.
3. The various telegrams and letters relied upon
by the prosecution were held to have been proved on
legally inadmissible material.
4. The charge being under s. 420 read with s. 34
of the Indian Penal Code for alleged conjoint acts of
the appellant along with the persons designated as
accused 2, 3 and 4, in the complaint and the said three
accused not being before the Court and the appellant
not having been in Bombay at the time, the conviction
is unsustainable.
We have heard elaborate arguments on all these
matters but have felt satisfied that there is no substance
in contentions 2, 3 and 4 above. Accordingly we did
not call upon the counsel for the State to reply to the
same. It is, therefore, unnecessary to deal with them
at any length. They will be disposed of in the first
instance.
To understand c,ontention 3, it is convenient to take
the letters and telegrams separately. The letters which
have been relied on for the prosecution fall under the
following categories.
1. Letters from the appellant either to Jasawalla or
to the complainant.
2. Letters to the appellant from Jasawalla or the
complainant.
Most of the letters from the appellant relied upon
bear what purport to be his signatures. A few of them
are admitted by the appellant. There are also a few
letters without signatures. Both the complainant and
Jasawalla speak to the signatures on the other letters.
The objection of the learned counsel for the appellant
is that neither of them has actually seen the appellant
write any of the letters nor are they shown to have
such intimate acquaintance with his correspondence,
342
SUPREME COURT REPORTS
[ 1958}
1957
as to enable them to speak to the genuineness of these
,\foharik Ali Ahmed signatures.
Learned trial Judge as well as the learned
v.
Judges of the High Court have found that there were
Th~ State of
Dombay
sufficient number of admitted or proved letters which
might well enable Jasawalla and the complainant to
Jagannadhadas J.
f
identify the signatures o the appellant in the disputed
letters. They also laid stress substantially on the
contents of the various letters, in the context of the
other letters and telegrams to which they purport to
be replies and which form the chain of correspondence
as indicating the genuineness of the disputed letters.
Learned counsels objected to this approach on a question of proof. We are, however, unable to see any
objection. The proof of the genuineness of a document is proof of the authorship of the document and
is proof of a fact like that of any other fact. The evidence
relating thereto may be direct or circumstantial. It
may consist of direct evidence of a person who saw
the document being written or the signature being
affixed. lt may be proof of the handwriting of the
contents, or of the signature, by one of the
modes
provided in ss. 45 and 47 of the Indian Evidence AcL
It may also be proved by internal evidence afforded
by the contents of the documents.
This last mode of
proof by the contents may be of considerable value
where the disputed document purports to be a link in
a chain of correspondence, some links in which are
proved to the satisfaction of the
court. In such a
situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a
reasonably good position both with reference to his
prior knowledge of the writing or the signature of the
alleged sender. limited though it may be, as also his
knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate
case the court may also be in a position to judge
whether the document constitutes a genuine link in the
chain of correspondence and thus to
determine its
authorship. We are unable, therefore, to say that the
approach adopted by the courts below in arriving at
the conclusion that the letters are genuine is open to
. any serious legal objection. The question, if any, can
S.C.R.
SUPREME COURT REPORTS 343
only be as to the adequacy of the material on which
1957
the conclusion as to the genuineness of the letters is Mobartk Ali Ahm<d
arrived at. That however is a matter which we cannot
v.
The Stale of
permit to be canvassed before us.
Bombay
A few of the letters said to have been received from ,
IL d
J
h
11
d b
d
b
h.
.
JOgannatma as
.
t e appe ant, as state a ove, o not ear is signatures. These were held to have been proved by the
circumstantial evidence as pointed out and we see no
objection thereto.
The next objection is as regards the letters said to
have been sent by Jasawalla and the complainant to
the appellant. Jasawalla and the complainant have
produced copies of the originals. It has been contended that these copies are inadmissible. But such a contention is obviously untenable. The appellant cannot
be expected to produce them, if true, since he disputes
them. There is also the eividence of his ex-employee,
Sequeria, that the originals were received but taken
away by his son. The main contention in respect of
these letters is that there is no proof that they were
received by the appellant at Karachi. It is contended
that .evidence given by either Jasawalla or the complainant that the originals were written and post~d is
not relevant to show that the same have been received.
lt is urged that the proof of mere posting of a letter is
not presumptive evidence of the receipt thereof by the
addressee unless there is also proof that the original
has not been returned from the Dead Letter .Office.
Illustration (b) to s. 16 of the Indian Evidence Act,
1872, is relied on for the purpose and it is urged that
a combination of the two facts is- required to raise such
a presumption. We are quite clear that the illustration only means that each one of these facts is relevant.
It cannot be read as indicating that without a combination of these facts no presumption can arise. Indeed
that section with the illustrations thereto has nothing
to do with presumptions but only with relevance.
Some cases relating to this have been Cited before us.
We have considered the same but it is unnecessary to
deal with them.
Next taking the question relating to telegrams the
main objection is as to the proof of the genuineness of
344
SUPREME COURT REPORTS
[1958]
1957
the various telegrams said to have been received from
Mobarik Ali Ahmed the appellant. In this case since we are largerly
v.
concerned with the nature and contents of the repreThfi.~t!~ 01
sentations said to have been made by the accused to
-
the complainant or to Jasawalla, it is obvious that
Jagannadhadas J. what are relevant or important are the
telegraphic
messages delivered to the complainant or Jasawalla
provided the authorship of the original is made out.
These messages have been proved by producing the
messages actually handed over to either of these persons
or the transit copies of the originals recorded at the
receiving end. The real objection, however, appears to
be that there is no proof as to the appellant having been
the author of these messages. It is true that under s. 88
of the Evidence Act there is a presumption only that
the message received by the addressee corresponds with
the message delivered for transmission at the office of
origin. There is no presumption as to the person who
delivered such as messa~e for transmission. But here
again proof of authorship of the message need not be
direct and may be circumstantial as has been explained
above in the case of letters. The contents of the
message received, in the context of the
chain of
correspondence may well furnish proof of the authorship of the messages at the dispatching end.
A number
of other minor objections have been also raised before
us connected with the proof of these telegrams. They
have all been fully dealt with by dne of the learned
Judges of the High Court.. Most of these objections
are unsubstantial and it is enough to say that we are
in general agreement with the conclusions of the High
Court in this matter.
As regards both the letters and
the telegrams
considerable argument was attempted before us as to
the mode in which they were let in for proof in the
course of the examination of the witnesses.
But in the
absence of any clear indication on the record that any
objection in that behalf was seriously taken, we could
not permit any challenge in this behalf.
We may add that as regards the main objection both
in respect of letters as well as telegrams, viz., the use
of the contents of the disputed documents, for proof
S.C.R. SUPREME COURT REPORTS 345
thereof there is this that could be said, viz., in view of
1957
the fact that quite a large number of the documentSMobarakAliAhmed
are not admitted and only a few have be~n held to be
The !,·, 1
admitted or indubitably proved it may have been a
s:mi:/
question open before the Court of appeal whether the "
-;;;o;;;d
J
internal evidence with reference to such a large mass
agann
as •
of correspondence substantial portion of which is
disputed was adequate to arrive · at a satisfactory
conclusion as to the genuineness of these documents.
That question is not open before us. But even if we
were inclined to go into this, it was well nigh impossible, having regard to the fact that most of the documents relied upon by the trial court as well as the
appellate court have not been printed in the record
before us.
However, there is no reason to think that
the learned judges who have considered the matter
very elaborately have not come to a satisfactory
conclusion. They have acted not merely on the
internal evidence of the documents but also on the
oral evidence of three main witnesses, viz., the com•
plainant, Jasawalla and Sequeria, each set of evidence
having been considered as affirmative of the other and
in the aggregate as proving the
authorship of the
disputed documents.
The fourth contention raised by the appellant's
counsel relates to the validity of the conviction under
s. 420/34 of the Indian Penal Code. ,Learned counsel
argued that persons designated as accused 2, 3 and 4
in the complaint, were all in Bombay and
the
appellant in Karachi and that therefore no conjoint
offence could be committed by them within the mean~
ing of s. 34 of the Indian Penal Code.