STATE THROUGH ADVOCATE-GENERAL, SIND & EX-OFFICIO PUBLIC PROSECUTOR, KARACHI Versus MIRZA MUHAMMAD DIN
MUHAMMAD HALEEM, J. ‑The State has moved to set aside the acquittal of Mirza Mohammad Din, who was tried under section 420, P. P. C. and acquitted by the Additional City Magistrate, Court No. 18, Karachi, vide judgment dated 27th January 1971. This judgment will dispose of the appeal as well as the connected Revision Application : No. 92/73 by which the disposal of the property is assailed.
2. According to the prosecution case, Shahid Farooqui, Manager of Kohinoor Agency, sent a written report on 22nd September 1970, in which he alleged that the respondent had introduced to him Abdul Sattar of Shaikh Brothers giving out that he was the sole indent for of Yokohama tyres bearing size 900‑20‑12‑P R and that his firm could indent for the size from Shaikh Brothers. It was also agreed that the respondent would act as the sole broker and would receive a commission of Rs. 2 per tyre. This was in March 1970. Thereafter, Kohinoor Agency hereinafter referred to as the firm: indented for the supply of 600 tyres through Shaikh Brothers which they received against the invoices. The tyres were sold through the respondent who was that sole broker. There was, however, a dispute with regard to the sale of 70 tyres, out of which 50 were sold to Messrs Muhammad Din & Sons, Bahadur Shah Market, Karachi, on 24th August 1970, 10 to Messrs Shahin Agencies. Aurangzeb Market, Karachi on 3rd September 1970 and the last 10 to Messrs Salahuddin Autos Aurangzeb Market, Karachi, on credit as it was given out by the respondent that the payment for the first lot would be made on 15th September, the second lot on 23rd September and the third lot on 25th September 1970. However, the payment for the first lot was not made on due date via., 15th September 1970 in spite of repeated requests made to the respondent, which led the firm to believe that there was something wrong and they, therefore, made their own enquiries, which revealed that none of the buyers were in existence and that the respondent had obtained the delivery of tyres under fictitious names with view to cheat the firm. They also gave out their loss to the tune of Rs. 53,550 at the rate of Rs. 765 per tyre, This report was incorporated in the 154 book and a case was registered against the respondent under sections 420 and 406, P. P. C. and investigations followed, which led to the seizure of 50 tyres from Jatoi Warehouse in Liaquat Market, which place was pointed out by the respondent. After tree seizure of relevant documents and the examination of witnesses, the respondent was sent up to face trial in the Court of A. C. M. No. 18.
3. In defence, the respondent pleaded that he had purchased 50 tyres against cash payment, for which he held the receipt. He elaborated his stand further:‑
"At the time of start of business of tyres it was agreed that I shall handle the entire affairs of tyres, The proprietor the Company asked me to deposit Rs. 30,000 as security deposit with them and I shall be paid Rs. 10 per tyre of the sale. I deposited the amount with the company, the receipt of which is Exit. D/2. I purchased 50 tyres of my own account and paid cash Rs. 38,250 for 50 tyres, the receipt of which is Exh. D/3. They had passed on a cheque of Rs. 30,000 against my security for which they had asked me not to deposit in ,yank for encashment for certain period till they advised me for encashment. When the transaction of entire tyres was going to be concluded I demanded my accounts and payments. Instead of making my payment to me and clearing my accounts they have cooked this case to usurp my amounts. The entire tyres are my property and the company Messers Kohinoor Agencies have nothing to do with the same. I am innocent. The complainant party called me in office and poisoned me when my condition deteriorated I was taken to the hospital where I remained for couple of days and with great efforts of the doctor I was saved. I made the report when I came in conscious but the t‑o`,x ‑c ‑:m‑; up my case and saved the complainant party. The complainant is very much influential and wealthy and the police is helping them throughout."
As for the delivery of the other two consignments of 10 tyres each, he denied that he had obtained their delivery for the buyers shown in the challan, namely Shaheen Agencies and Kohinoor Agencies. Lastly, he stated that the tyres belonged to him and re apt them in the godown as be had no place of his own.
4. The prosecution examined Shahid Farooqui, Wasiul Hassan and Noorul Hasan of the firm to establish that the sale was affected through the respondent on credit The first document in regard to the sale of 50 tyres is Exh. 1/J, which is a challan issued by the firm for the delivery of 50 tyres from the godown. The delivery was effected against this challan on 25th August 1470 and it was the respondent who took it which is beyond doubt established by the endorsement on the challan duly signed by him. The word 'credit' is mentioned at the top and so also the name of the buyer Muhammad Din & Sons. Again in the column 'description' the words "through Mr. Mirza Muhammad Din broker" are written. In the context of the defence taken that he had himself purchased it, we see no justification for writing the word 'credit' or his name as broker and so also a different name of the buyer.
5. The respondent to support the plea that the tyres were purchased by him has relied on receipt. Exh. D/3 which purports to be signed by Wasiul Hassan, a partner of the firm. T1w: receipt is dated 22 nd August 1970 and the delivery of goods was taken on 25th August 1970. If ht all the price had been paid, there was no justification for the word 'credit' on the challan and again if he was the buyer then Muhammad Din & Sons could not have made this payment. No one for Muhammad Din & Sons has been examined in defy rice to support the cash payment against this receipt. It was produced by the respondent at the stage of cross‑examination which is again a suspicious circumstance. Both Shahid Farooqui and Noorul Hassan have denied the signatures of Wasiul Hassan. We have also compared the signature with the admitted signature of Wasiul Ha‑San on Exh. D/I and on the face of it, it appears to be a forgery.
6. Another suspicious feature is that though the challan was in the name of Muhammad Din & Sans, yet the goods were restored in the name of Ahmed Din in the Jatoi's Warehouse. We fail to see that if it was the case of the respondent that he had purchased the goods, why did he lodge them in a different name. The object is obvious, for it was intended to conceal the goods from detection. Three documents, Exhs. 12/A, 12/B and 12/C, which relate to the deposit of the goods, are signed by the respondent in Gujrati while Exh. I/J is receipted in Urdu, which again is not free from suspicion.
7. Turning now to the question as to whether all this amounts to deception to bring the case within the mischief of section 420, P. P. C., we have no reason that it does amount to dishonest deception. Admittedly the respondent was acting as the broker of the firm and in that capacity he had sold many tyres and it was on the basis of this confidence that the firm apparently allowed the respondent to take delivery of 50 tyres on credit in the name of a buyer, which turned cut to be a fictitious person If we were to accept that Fe had bought the tyres for himself then, according A to the explanation to section 415, P. P. C., a dishonest concealment of fact is a deception within the meaning of this section and, therefore, the concealment of this fact at the time of taking delivery would constitute deception in the context of his own defence. The respondent had no further intention to pay and put up a false receipt to evidence cash payment, which again shows a dishonest intention on his part to withhold payment. Again, he stored the goods in another fictitious name, which conduct weighs in favour of his dishonest intention. Considering all this, we fail to see how the learned Magistrate could reach a conclusion that there was no dishonest or fraudulent intention on the part of the respondent to make out a case of cheating.
8. As for the other two deliveries, the respondent has denied having got them for the buyers though these is definite evidence of Shahid Farooqui and Noorul Hasan, the godown keeper, who had delivered those articles against challans, Exh. I/K, dated 3rd September 1970 and Exh. 1/L, dated 4th September 1970. The acceptance of delivery on his part is consistent with the capacity in which ho was working. The buyers in this case have also not come forward and the goods were taken on credit. The dishonest intention to cause wrongful loss cannot, in the circumstances, be denied and we hold that in regard to these two deliveries he is also guilty of cheating.
9. Before we part with the judgment we would like to point out that two other forged documents were produced in the case. One is the receipt, Exh. D/2, for Rs. 30,000 which amount was alleged to have been paid to Wasiul Hassan and the other is a cheque purported to be drawn in favour of the respondent and signed by Wasiul Hasan. Wasiul Hasan has denied his signatures en both these documents. The interesting feature amount Exo. D/2 is that when Shahid Farooqui was being examined Exh. D/2 was put to him suggesting that the signature on the stamps was that of Wasiul Hasan which was denied, but when Wasiul Hasan was examined, it was suggested to him that the receipt was signed by Shahid Farooqui, which of course was again denied. We are unable to see how this inconsistent stand was taken in regard to the receipt, about which the respondent was not sure as to whether it was signed by Shahid Farooqui or Wasiul Hasan. The respondent examined Khursheed to establish that the amount of Rs. 38,250, as being the price of SO tyres, was‑paid to someone by him. This is again inconsistent wits what is mentioned is the receipt and to all intents and purposes his evidence is vague and does not establish anything.
10. The learned counsel for the respondent has urged that a view on the evidence was taken by the trial Court and that if two views are possible then the appellate Court should prefer to adopt the view of the e trial Court. As a matter of principle, we agree with it, but what we find from the judgment is that he has not appraised the evidence in its proper perspective and has given fallacious reasons which could not form the basis for the conclusion reached.
11. In the result, for the foregoing reasons, we would accept the appeal and convict the respondent under section 420, P. P. C., but since the respondent is present and informs us that he is an old man of 75 years, we would take lenient view and impose a sentence of imprisonment till the rising of the Court and a fine of Rs 1,000, or in default to suffer rigorous imprisonment for two months. He is given time till tomorrow to pay the fine.
12. As for the property seized in the case, that has been sold by public auction and the amount is lying deposited in this Court. In view of the conclusion reached, it is the complainant who is entitled to this money and we accordingly order that this be paid to him. In this view of the matter, the connected revision (No. 92 of 1973) becomes infructuous and is dismissed.
Order accordingly.