Parsi Dass And Anr. vs State on 19 December, 1952

Jammu High Court
Parsi Dass And Anr. vs State on 19 December, 1952
Equivalent citations: 1953 CriLJ 1329
Author: Kilam
Bench: Kilam

ORDER

Kilam, J.

1. Six persons were proceeded against under Rules 68(4), 118 of the Jammu & Kashmir Defence Rules in the Court of the Addl. District Magistral’s Kathua, who after trial convicted all the six persons to six months’ rigorous imprisonment and to a fine of Rs. 100/- each. On appeal, the learned Sessions Judge Jammu acquitted two accused person; by name, Chhaju Ram and Babu Ram, but maintained the conviction of the other four accused and reduced their sentence of imprisonment to the one already undergone. The learned Sessions Judge also remitted, the sentence of fine in regard to Dharam Singh. As regards the remaining three accused, the learned Sessions Judge maintained their sentence of fine and he also maintained the order with regard to confiscation and forfeiture of ghee.

2. The facts of the case, as found by the learned Sessions Judge are3 that the accused persons with a view to smuggle out of the State certain quantity of ghee in contravention of the orders prohibiting export of this commodity, carried 64 tins of ghee in a truck No. J & K 1803 towards Jammu side and unloaded them at a place 8 or 9 miles from Lakhanpur towards Jammu side. There the tins were kept hidden underneath some bushes growing around. The finding further is that at about 4 O’clock in the morning of 15th Katik 2008 an empty military vehicle was seen coming from the Easantpur canal road and going towards Jammu side. Dewan Jia Lal Deputy Superintendent Customs who saw the military truck going towards Jammu side, suspected that this truck might be used for smuggling out ghee. Dewan Jia Lal, believing that the truck might return back with the tins of ghee, blocked the road with the idea that the vehicle carrying the ghee if at all it comes, would not be able to proceed further. In the meanwhile information was carried to Dewan Jia Lal that a number of tens of ghee that were kept hidden underneath the bushes at a distance; of 8 or 0 miles towards Jammu side were being loaded on a military truck. After same time at about 5-30 A.M. ho saw that a military truck was coming at every high speed from Jammu side which in spite of signal being given, did not stop, but proceeded further and only stopped when it found its way blocked. The result was that the truck was brought back to Lakhanpur wherefrom 64 tins of ghee were recovered. complaint was lodged against the accused persons with the above result.

3. So far as the facts found in the case are concerned, there can be no dispute. But the question is as to whether these facts constitute an offence under Rule 68/118 of the Defence Rules. Rule 68 of the Defence Rules lays down that
taking out of the State any goods the export of which has been stopped is an offence punishable under Sub-rule (4) of the same rule.

Now export of ghee has been stopped under the Ghee Control Order of 1999. Under Rule 118 of the Jammu and Kashmir Defence Rules any person who attempts to contravene the provisions of Rule 68 or any other defence rule shall also be deemed to have contravened that provision. Now in this case we find that the ghee was not taken out of the State, and as such the offence of exporting cannot be said to have been committed. It is, however, argued that the action of the accused persons comes within the mischief of Rule 118 of the Jammu and Kashmir Defence Rules which makes an attempt at contravention punishable. The question then arises as to whether the action of the accused persons comes within the purview of the definition of an attempt.

In this behalf I might with advantage quote from a judgment of mine reported as – Mt. Nooi Bihi v. State AIR 1952 J & K 55(A) wherein I have held that
Before the commission of an offence, an accused has got to go through three preliminary stages: first that of intention to commit the offence, secondly preparation to commit and thirdly, attempt to commit it. Mere intention to commit an offence is not punishable. Nor is the preparation to commit it. It is only when the preparation merges itself in attempt that the act becomes punishable by law.

4. The learned Assistant Advocate General argues that this action of the accused persons was clear attempt on their part to commit an offence under Rule. 68, I am afraid I cannot agree with him. The accused may have an intention in commit an offence of exporting ghee out of the State territory, but, as already stated, mere intention is not punishable at law.

5. Then we have found that the accused persons were apprehended very far away from the Ravi Bridge, by crossing over which they would have reached the Punjab territory. They had not attempted to cross the border or even the bridge, & as such their going towards the bridge was merely a preparation to cross the bridge. Before they had reached the bridge, the possibility cannot be excluded that the accused might have repented of their intention and changed their mind and never attempted to curry the ghee across the forbidden line. Under these circumstances the accused are clearly entitled to benefit of doubt.

6. In – Narayanaswami Pillai v. Emperor AIR 1932 Mad 507 (B) the accused was found travelling In a bus to Tranquebar carrying 165 tolas of opium which somebody had given to him at Chidambaram with instructions to meet him at a place in French Territory and to give it to him. The accused in this case was charged under Section 7 read with Section 20, Dangerous Drugs Act. In this case it was held by Walsh J. that “there was no attempt to commit the crime but more preparation for its committal.”

The learned Judge in the concluding portion of his judgment states that
It seems to me that he (accused) must be given the benefit of doubt that he might have repented of his intention before reaching the French Territory.

7. This case is quite on all fours with the present case. The accused persons along with the ghee were apprehended in the State territory and not a step was taken by them towards crossing the border. The case would have been however, different if they were apprehended while crossing the border.

8. I, therefore, have no hesitation in extending the benefit of doubt to the accused persons. I accept this Revision application and order that the accused persons be acquitted. Fine if paid, must be refunded. The order of forfeiture of ghee is also set aside.

Badri Nath vs State on 18 August, 1952

Jammu High Court
Badri Nath vs State on 18 August, 1952
Equivalent citations: 1953 CriLJ 1719
Bench: Dar, I Ahmad

JUDGMENT

Iqbal Ahmad, Member

1. While fully alive to the salutary rule that enjoins respect for the estimate of oral evidence made by the trial Judge and, in particular, to concurrent findings on questions of fact recorded by the Courts below, the Board, in the present case, for reasons that will presently appear, is unable to endorse the finding about the guilt of Pt. Badri Nath Jalali recorded by the Courts below and to affirm his conviction.

2. In or about Bhadon 2005 (August 1948) Pt. Bari Nath Jalali hereinafter referred to as the appellant, was temporary Tehsildar at Uri. Till December 1947, the area round about Uri was in possession of raiders, but they were dispossessed from the same and civil administration was established in or about the beginning of 1948. The exigencies of the situation, however, dictated the desirability of military control over the area for some time to come and, accordingly, the civil administration had, for the time being to function in collaboration with the military authorities.

3. It is common ground that one Ghulam Rasul, who was Zaildar of Islamabad and surrounding villages, had gone over to Pakistan side and this fact, after the establishment of civil administration, necessitated the appointment of another Zaildar, the more eo as the revenue for the Section year 2004 (1947) was in arrears. On 15th Bhsdon 2005 (30.8.948) some Zemindars of Islamabad and neighbouring villages presented a petition Ex. P.A. to the appelt. praying that one Mutwali Mir (PW 1) be appointed Zaildsr of the illaqa in place of Gulam Rasul. On the same date, in pursue nee of the order of the appellant, Dina Nath Patwari (P.W. 2) recorded the statement of a number of Zemindars who stated that
Mutwali Mir has shown sympathy towards us and we request that it will meet the ends of justice if Mutwali Mir is appointed Zaildar of our illaqa.

It appears from the evidence of Dina Nath that the Chief Administrator, Pir Mohd Maqbul (P.W. 17) was present when the application just referred to was presented and when the joint statement of Zemindars was recorded by Dina Nath. Dina Nath further stated that “the Administrator ordered verbally that since he (Mutwali Mir) had done good work in military he may be appointed as Zaildar.” At that time he passed the order verbally. It is also a matter of admission that after the departure of Gulam Rasul, Mutwali Mir was playing the role of Zaildar and was, to all intents and purposes, a de facto Zaildar.

4. The application Ex.-P.A. was disposed of by the appellant on 7th Assuj 2005 (22.9.1948) by his order Ex. P.B. in which after noting that
Mutwali Mir has rendered great help to the Military and had worked with great enthusiasm at the time of Qabali raids and the Zamindars too gavs a statement on their part in favour of this man’s appointment as Zaildar,

he went on to observe that “under the present emergency conditions this man is fit and suitable of Zaildarship.” He, however, added in the order that
since this illaqa is under military operation at this time, therefore, at this time the appoint-of Zaildar cannot be made according to the rules…therefore he is appointed Zaildar for the time being for conducting the work and afterwards necessary action under rules will be taken.

In view of the reasons just set out the appellant ordered that, subject to confirmation by the Chief Administrator (Pir Mohd Maqbul), “Mutwali Mir is appointed Zaildar of the aforesaid villages for the time being as an emergency measure.”

5. A period of about three weeks elapsed between the date of application Ex. P.A. and the passing of order Ex. P.B. and the case for the prosecution is that the appelt. deferred passing order on the application Ex. P.A. till his demand for a canister of Ghee and payment of Rs. 25/- as illegal gratification was complied with by Mutwali Mir. Indeed it is alleged that on some date between 28-31st Bhadon Section 2005 (12 to 15 Sept. 1948) a canister of Ghee was taken by Mutwali Mir and eventually delivered to the appellant, and further a sum of Rs. 25/- was also paid the very next day by Mutwali Mir to the appellant.

6. The evidence shows that in the meantime information had reached the Chief Administrator that the appellant had received a sum of Rs. 50/- from Atta Mohd Numberdar (P.W. 7) as illegal gratification for recommending the remission of the Government revenue for the instalment of Magh 2004 and accordingly, the Chief Administrator passing order Ex. (P. W. 6) on 25-9-1948, directing that Atta Mohd be summoned “for the sake of an enquiry so that proper proceedings may be taken after an enquiry from him.” Within four days of the last mentioned order the Chief Administrator on 29.9.1948, passed orders Ex. P.W. 8 in which, after pointing out that
there is sufficient proof to believe that you have accepted Rs. 20/- and Rs. 30/- as illegal gratification from one Atta Mohd…to do away with the revenue of Kharif 2004,

he called upon the appellant to submit his explanation within two days “to complete the case and to proceed further”. The appellant forthwith submitted his explanation Ex. P.W. 9, which apparently was not acceptable to the Chief Administrator, with the result that the latter passed an order on 15.10.1948 suspending the appellant (vide statement of Gulam Nabi P.W. 16 on p. 47).

7. After the suspension of the appellant, and the lapse of more than a month after the order for appointment of Mutwali Mir as Zaildar was passed, Mutwali Mir on 26.10.1948 submitted a petition Ex. P.C. to the Chief Administrator that
the ex-Tehsildar has taken one tin of Ghee and Rs. 25/- in cash from me in connection with my appointment as Zaildar. There is evidence existing and proceeding may be taken.

Thereafter the Governor of Kashmir, on 19.1.1949, called upon the appellant (vide Ex. P.W. 1) to submit his explanation with respect to 3 charges viz. (1) about the receipt of Rs. 50/- from Atta Mohd, (2) the receipt of one tin of Ghee and Rs. 25/- as bribe from Mutwali Mir and about a 3rd charge which is not material for our present purposes. The appellant thereupon submitted his explanation (Ex. P.W. 2) to the Governor on 24.1.1949. The explanation did not satisfy the Governor and, accordingly, he forwarded the case to the Government for necessary action. Thereafter the Anti-Corruption Department, having secured the necessary sanction for prosecution of the appellant, launched the prosecution which has culminated in the present appeal.

8. Before the trial Magistrate the appellant was called upon to stand his trial for acceptance of illegal gratification on three counts viz. (1) acceptance of one tin of Ghee and Rs, 25/- from Mutwali Mir in consideration of recommending him for Zaildarship, (2) acceptance of Rs. 50/-as illegal gratification from Atta Mohd. for recommending postponement or remission of land revenue and (3) that he had accepted Rs. 47/- by way of bribe from Jumma Shah, Malik Mohd. etc. etc.

9. The appellant was discharged with respect to 3rd charge but was convicted by the Magistrate with respect to first and second charges. On appeal, the learned Sessions Judge acquitted the appellant with respect to the second charge but maintained his conviction with respect to the first. On an application in revision by the appellant, the High Court upheld the conviction of the appellant with respect to the first charge above referred to. The appellant then was granted special leave to appeal to His Highness.

10. It would thus appear that the evidence in the case relating to the first charge was, in the opinion of the learned Judges of the three Courts below, sufficient to bring that charge home to the appellant, and this fact, standing by itself, counsels great caution in interference with the finding recorded by those Courts. A perusal of the judgments of the Courts below, however, reveals that those Courts seriously misdirected themselves in one respect. Those Courts approached the consideration of the case from a point of view which was appropriate for adjudication of a civil matter, but wholly inapplicable to a case in which a public servant was charged with the offence of accepting illegal gratifications. What the Courts below virtually did was to compare the probability or otherwise of the respective stories for the prosecution and for the defence, and holding that the story for the prosecution was more probable and convincing, recorded the order of conviction. In other words the Courts below put the evidence for the prosecution in one scale and the evidence for the defence in another and, after weighing the same, held that the scale containing the prosecution evidence was heavier and. accordingly, convicted the appellant. It is hardly necessary to observe that in criminal cases, unlike civil cases, the evidence has not to be weighed in this manner. In a criminal trial, an accused starts with presumption of innocence in his favour, and this presumption holds the field till the prosecution succeeds in establishing the guilt of the accused beyond all reasonable doubt. Unlike civil cases, the burden that rests on the prosecution in criminal cases does not shift from time to time, howsoever flimsy or unreliable the evidence for the defence may be.

The prosecution is not relieved of the burden of satisfying the judicial conscience of the Court from the evidence led by it about the guilt of the accused. In short, in criminal trials, in which the accused does not invoke to his aid any of the exceptions embodied in a criminal Statute in justification of the act of commission or omission with respect to which he is charged, the Court is bound to keep the evidence for the prosecution, and for the defence in two water-tight compartments, and has first to consider whether or not the guilt of the accused has been established beyond all reasonable doubt by the prosecution evidence. If the answer to the question, just referred to, is in the negative, there is an end of the matter. If, however, the Court is of the opinion that the prosecution discharged the onus that rested upon its shoulders, it has then to turn to the-defence evidence in order to find out whether that evidence does or does not rebut the prosecution evidence and either negatives the guilt of the accused or makes his guilt doubtful. It is true that, in one sense, the evidence, both for the prosecution and for the defence, has, at some stage of the case, to be weighed, but it is well known that in criminal cases the evidence has not to be weighed in golden scales, and there must be great preponderance of weight on the side of the prosecution before the accused can be found guilty.

11. It may be, and possibly is a fact, that the evidence in the case disclosed facts that justified strong suspicions against the appellant, but this could be no justification for his conviction unless and until the prosecution succeeded in excluding every reasonable possibility of the appellant’s innocence. In this connection it is well to bear in mind the following observations of the Federal Court in H.T. Huntley v. Emperor A.I.R. 1944 F.C. 66 (A):

A charge under Section 161 is one which is easily and may often be lightly made, but is in the very nature of things difficult to establish, as direct evidence must in most cases be meagre and of a tainted nature. These considerations cannot however be suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been given its due weight, room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal.

There is yet another circumstance that points to the desirability of an independent and thorough examination of the evidence by the Board. It appears that certain facts, which were indicative of the innocence of the accused & facility of the prosecution case, were not referred to or touched by the Courts below and this, in the opinion of the Board, vitiated the conclusion arrived at by these Courts.

12. It would be recalled that the charge against the appellant was that he accepted as illegal gratification a tin of Ghee from Mutwali Mir between 12 and 15.9.1948 and further received a sum of Rs. 25/- from him the very next day. This charge readily divides itself into two parts viz. (1) the receipt of one tin of Ghee and (2) the receipt of Rs. 25/-. Not a little confusion was caused by the omission of the Courts below to separately consider and record separate findings with respect to these two counts.

13. Apart from the so-called circumstantial evidence, to which reference shall be made in due course, the conviction of the appellant with respect to this charge was based on the evidence of P.W. 1, (Mutwali Mir) P.W. 2, (Dina Nath) P.W., (Banstlal) and P.W., (Ahad Joo) and P.W. 5, (Gulam Mohd Kuli).

14. It would be convenient first to deal with the second part of the charge viz. about the receipt of Rs. 25/- by the appellant. There is only the evidence of P.W. 4 Ahad Joo, P.W. 1 and Mutwali Mir, as regards this part of the case. Ahad Joo was a peon posted in Tehsil Uri and gave evidence against the appellant as regards the charge of acceptance of Rs. 50/- by the appellant from Atta Mhod. as well. His evidence as regards that charge was, however, not accepted by the Sessions Judge and the appellant was acquitted with respect to that charge. The fact of the rejection of the evidence of this witness, as regards the charge just referred to, laid his evidence with respect to the charge under consideration open to the obvious comment that he was not a witness of truth. No reference, however, to this aspect of the matter was made in the course of their judgments either by the Sessions Judge or by the High Court. Ahad Joo deposed that, when after delivering Ghee Mutwali Mir returned and had not gone far off,
the accused told me to tell him that this Ghee will not do and that some money should be paid for a pair of boots. I went and told this to Mutwali Mir. He replied that he had no money with him at that time.

It is manifest that it is easy to make a statement like this and it is difficult to test its veracity by appropriate cross-examination. There is one circumstance, however, that demonstrates that this part of the prosecution case was an after-thought.

One could understand that, on receipt of the application for the appointment of Mutwali Mir as Zaildar, the appellant dictated his terms. Dina Nath P.W. 3, however, stated that after the receipt of the application he was asked by the appellant to tell Mutwali Mir to supply a tin of Ghee. Dina Nath makes no mention of any demand by the appellant for a pair of boots or the price thereof. The demand for illegal gratification piecemeal is, to say the least, extremely extraordinary. In all the circumstances we are not prepared to accept the evidence of Ahad Joo on the point. The result is that one is left with the solitary statement of Mutwali Mir as regards this part of the case, and the Board has no hesitation in rejecting the same. Reference has already been made to petition Ex. P.C. which was presented by Mutwali Mir to Chief Administrator on 26.10.1948. The alleged delivery of Ghee and payment of Rs. 25/- to the appellant by Mutwali Mir, according to the prosecution case, was round about 15.9.1948 and the application Ex. P.C. was not present-fid till after the lapse of about six weeks from that date. No explanation, good or bad or indifferent, as regards the delay in the presentation of the application was offered by Mutwali Mir. This application was presented after the appellant had been suspended. That false complaints against officers, in the situation in which the appellant found himself, are recklessly made after they are relieved of their office and are crest-fallen, is by no means a phenomenon of unusual occurrence.

Indeed the statement of Mutwali Mir in cross-examination strongly points to the conclusion that the application Ex. P.C. did not originate from Mutwali Mir but was the handi-work of someone who was busy in manufacturing evidence against the appellant. Mutwali Mir stated that
I have got the application marked Ex. P.C. written by a man whose name I do not know nor he is an acquaintance of mine. He is the resident of Uri.

Comment on this statement will be superfluous, but it may be observed in passing that Mutwali Mir was presumably unable to name the scribe of application Ex. P.C. for the simple reason that the application was got prepared not by Mutwali Mir but by some one else. The prosecution case as regards payment of Rs. 25/- to the appellant must therefore be rejected.

15. The evidence as regards the receipt of a tin of Ghee by the appellant as illegal gratification is equally unconvincing. Reference has already been made to the evidence of Dina Nath P.W. 2 which shows that, on the presentation of the application by Zamindars, Pir Mohd. Maqbul Chief Administrator (P.W. 17) ordered verbally that Mutwali Mir be appointed Zaildar. The Chief Administrator had the last voice in the matter and, therefore, it is extremely improbable that, after the receipt of his verbal order, the appellant could have summoned courage to ask for bribe as a condition precedent to the appointment of Mutwali Mir as Zaildar. Apart from this it is abundantly clear by the order Ex. P.B. passed by the appellant, which has been quoted above, that the appointment of Mutwali Mir as Zaildar was only as a temporary measure, and that he was “appointed Zaildar for the time being for conducting the work and afterwards necessary action under rules will be taken,” This fact also negatives the probability of the demand of bribe.

16. All that appears from the evidence of Dina Nath is that
he told Mutwali Mir to get a tin of Ghee for the Tehsildar I told him that the accused had demanded a tin of Ghee. Mutwali Mir did not give any reply at that time.

Dina Nath did not commit himself to the statement that the Ghee was demanded by the appellant as consideration for the appointment of Mutwali Mir as Zaildar. The evidence of Bansi Lal P.W. 3 negatives the truth of the prosecution case. The witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness. This fact, however, furnishes no justification for rejecting en-block the evidence of the witness. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. In the course of his evidence Bansi Lal stated
I told the accused that Mutwali Mir had brought the Ghee and the accused told me that he would send the price and that he had got the Ghee. I called out to Mutwali Mir and told him that the Tehsildar says that the price will be sent. Mutwali Mir showed by signs from a distance that it was all right.

The prosecuting counsel, when allowed to cross-examine this witness, however, put no question to the witness regarding the statement just quoted.

17. Reasons have been assigned above for rejecting the evidence of Ahad Joo. The result is that there remains the solitary statement of Mutwali Mir P.W. 1, in support of this part of the prosecution case. Most of the reasons assigned above for not accepting the evidence of Mutwali Mir as regards the payment of Rs. 25/- by him to the appellant equally hold good so far as Mutwali Mir’s evidence as regards delivery of Ghee is concerned.

18. The so called circumstantial evidence relied upon by the Courts below consists of the following links:

(1) The interval of 3 weeks between the presentation of the application Ex. P.A., the recording of the evidence of the Zemindars and passing of order Ex. P.B. by the appellant,

(2) the acceptance of Ghee by the appellant without weighing the same and settling its price;

(3) the delay in the alleged payment of the price of the Ghee by the appellant.

19. The circumstances just referred to, do not, in the opinion of the Board, clinch the matter and demonstrate the guilt of the appellant. The fact of the receipt of the Ghee was throughout admitted by the appellant, and the only serious Question for consideration was whether the same was received as illegal gratification. It is clear from the evidence in the case that Mutwali Mir dealt in Ghee. It is also clear that the military was in control of the area at that time. In view of the fact that problems of varying intensity must then have been engaging the attention of the civil authorities there is no occasion for surprise if the appellant did not dispose of the application Ex. P.A. for three weeks. His hands must have been full with works and duty of various description. When one pictures to one-self the utter confusion that must have reigned supreme at that time, one hesitates to disbelieve the assertion of the appellant that a Military Officer had asked for the Ghee and, as that officer had moved to Srinagar, the Ghee was sent there, but the officer could not be traced. Supplies could not have been arranged and received in a businesslike manner at that time. The non-weighment of Ghee or the settlement of its price is therefore not a matter to which any weight can be attached. Each one of three links in the so called circumstantial evidence, tested by itself, leads one to nowhere and their cumulative effect is nil, for the simple reason that Zero multiplied by Zero is still Zero.

20. On the whole, the Board have arrived at the conclusion that the guilt of the appellant was not established and, accordingly, the Board will humbly advise His Highness that this appeal be allowed, the conviction of and the sentence passed upon the appellant be set aside and he be acquitted, and the fine, if paid, be refunded.

Wali Dar vs State on 9 August, 1952

Jammu High Court
Wali Dar vs State on 9 August, 1952
Equivalent citations: 1953 CriLJ 1706
Bench: Dar, I Ahmad


JUDGMENT

Iqbal Ahmad, Member

1. This is an appeal by Wali Dar against his conviction under Section 302, R.P.C. and the sentence of death passed on him. The charge against the appellant was that, on the night intervening between the 3rd and 4th of Jan. 1952, he caused the death of his sister Mst. Fazi by strangulation. The fact that on the night in question Mst. Fazi was strangulated to death is proved from the medical evidence in the case, and the sole question for consideration in the case is whether or not the charge under Section 302, R.P.C. was brought home to the appellant.

2. It is one of those cases in which it is not possible to be dogmatic but, after making due allowance for the fact that there are grounds for grave suspicion against the appellant the Board, in view of certain extraordinary features of the case and the extremely unsatisfactory nature of the evidence, is unable to share the conviction of the Courts below as regards the guilt of the appellant.

3. The case for the prosecution is that in the dead of night Wali Dar entered the room in which Fazi was sleeping, alone with Mst. Jainti, the wife of Wali Dar and certain children and there he strangulated her to death by fastening and tightening a rope round her neck. Thereafter he lifted the dead body on his shoulders and proceeded to the courtyard of Abdullah (P.W. 3) and put the same there.

4. On a perusal of the evidence recorded-by the Sessions Judge, it was manifest that certain matters having vital bearing on the case were left in a state of absolute obscurity and the Board, accordingly, summoned some of the important witnesses for further examination and recorded their evidence.

5. Wali Dar & his sister Fazi originally resided in village Shalhal. Fazi was married to one Jabbar Mir, resident of village Lachh. Fazi had two children by Jabbar Mir viz., Ali Mir (P.W. 5) a lad of about nine or ten years of age and Sona Mir who is about 5 or 6 years old. Jabbar Mir died in or about the year 1948. Jabbar Mir had 139 kanals of land in village Lachh, and after his death, at the request of Mst. Fazi, Wall Dar with his wife Mst. Jainti came to and began to reside in village Lachh with Mst. Fazi, and looked after the cultivation of the land. About two years after the death of Jabbar. Mir. Mst. Fazi married Rasul Wani (P.W. 1) son of Abdullah (P.W. 3) who also is resident of village Lachh and was the neighbour of Jabbar Mir. Rasul Wani’s first wife Mst. Mehtabi is still alive and Rasul Wani has 4 children by her. It is, however, a fact that Mst. Mehtabi is a cripple.

6. The case for the prosecution is that the marriage of Mst. Fazi with Rasul Wani was bitterly opposed by Wali Dar, but this is disproved by the statement made before the Board

by Rasul Wali’s father Abdullah (P.W. 3). Indeed the evidence recorded by the Board puts it beyond doubt that Wali Dar joined the marriage and partook of the feast given by Abdullah on the occasion of the marriage of Rasul Wani with Mst. Fazi. In view of this evidence the evidence tending to show that after the second marriage of Mst. Fazi there was bickering between her and Wali Dar, must be rejected.

7. It would be noted that the period intervening between Fazi’s marriage with Rasul Wani and the murder of Mst. Fazi was about 8 months and, even though Mst. Jainti (P.W. 4) the wife of Wali Dar tried to prove that during this period there used to be quarrel between Fazi and Wali Dar, and the latter at times beat Fazi, the evidence, as a whole, negatives the truth of this statement and points to the conclusion that the brother and sister amicably lived together, and the brother throughout had a controlling hand in the management of the land originally owned by Jabbar Mir.

8. To begin with, therefore, the prosecution is up against difficulty of failing to attribute a motive to Wali Dar for the alleged commission of the dastardly crime by him. It was, v,aguely alleged that Wali Dar desired Mst. Fazi to transfer the land to him or, at any rate, to let him have a share out of the same. This, to say the least, is improbable, for the simple reason that, during the minority of her two children, Mst. Fazi had no right to give away the land that belonged to the two children. Again it was. further sought to be made out that Wali Dar entertained the apprehension that sooner or later he will be deprived of the land of Jabber Mir and possession of the same will be taken by Rasul Wani. This part of the prosecution case, however, receives a rude shock from the statement made by Rasul Wani (P.W. 1) before the Byard. He stated that no interference whatsoever was made by him in the control of the management of the land by Wali Dar, and that Fazi was agreeable to and held out a promise to let Wali Dar have one third share in the land on her two children attaining majority.

9. In view of what has been just stated, it is imperative to approach the consideration of the evidence in the case in the light of the cardinal fact that no convincing motive for the commission of the crime by Wali Dar has been brought home to him.

10. It is common ground that on the night in question Mst. Fazi and her two children were sleeping in a room in Jabbar Mir’s house alone with Mst. Jainti and her two babies, and the room was bolted from inside. Wali Dar was sleeping in an adjoining verandah. It is also a fact that oh the morning of Jan, 4, the dead body of Fazi was first seen by Abdullah lying in the courtyard of Rasul Wani’s house and the sole question for decision in the case was whether Wali Dar was responsible for the murder. The conviction of Wali Dar has been based by the Courts below wholly and solely on the testimony of Mst. Jainti (P.W. 4) and Ali Mir (P.W. 5) who profess to be eye-witnesses of the murder. In order to assess the value to be attached to the testimony of these two witnesses it is necessary to refer briefly to the events that, according to the prosecution evidence, followed the discovery of the dead-body.

11. It appears from the evidence of Abdullah (P.W. 3) that, no sooner he noticed the dead body of Fazi, he jumped to the conclusion that Wali Dar had murdered her, and his neighbours, to whom he immediately conveyed the news about the discovery of the dead body, also straightway said that Wali Dar was responsible) for the murder. Soon after the Numberdar, the Halqa President, etc. appeared on the scene and Wali Dar was taken into custody. It is important to bear in mind in this connection that till then there was not even a whispar either by Mst. Jainti or Ali Mir that they had witnessed the commission of the crime.

12. A report Ex. G. was then drawn up and the same was signed by Mohd. Sultan Numberdar and Jabbar Chowkidar of the village, Mohd Sultan was not called as witness in the case. Jabbar (P.W. 6) however, stated that he and Sultan got the report written by one Aziz Mir. The report was taken by the Numberdar & the Chowkidar and delivered at Police Station Handwara. Frem Nath, Sub-Inspector, (P. W. 12), who investigated the case, has stated before the Board that this report reached Handwara Police Station at about 3 p.m.. It further appears from his evidence that the distance between village Lachh and Handwara by roact is about six miles and by a short-cut foot path is about 4 miles, and that this distance could be covered on foot in about an hour and a half. It is, therefore, permissible to presume that the Numberdar and the Chowkidar did not leave village Lachh with the report till about 1 p.m.. In other words, there was an interval of about six hours between the discovery of the dead body and the despatch of the first report from the village. The report merely mentions the fact of the discovery of the dead body and is conspicuous by an entire absence of any reference to any suspicion being harbored against Wali Dar. The report is, therefore, proof positive of the fact that till the dispatch of the report neither Jainti nor Ali Mir had disclosed that they had witnessed the commission of the crime.

13. It is said that Rasul Wani was absent from the village on the night in question and had gone to village Yamlahr, which is 3 miles away, to attend some Niaz ceremony at the house of one Nura Mir. It is alleged that on 4th Jan. at about 9 a. m. one Shams Gujri, a servant of Abdullah, conveyed the news to Rasul Wani about the discovery of the dead body of Fazi. It is further alleged that Jamal Wani, the brother of Rasul Wani was also absent from the village on that night. The simultaneous absence of these two brothers from village Lachh is, to put it mildly, a bit extraordinary, and therefore the omission by the prosecution to call Nura Mir and Shamas’ Gujri as witnesses to testify to the absence of Rasul Wani from village Lachh on the night of the murder is significant.

14. The case for the prosecution is that Rasul Wani, on receipt of the information, proceeded to Ms native village, saw the dead body, and then truth came to the surface with starting rapidity. Rasul Wani deposed that on reaching his village he forthwith enquired from Ali Mir and the latter then told him that Wall Dar had tied a rope round the neck of Fazi and strangulated her to death and, thereafter, removed the dead body from the room and put the same in the courtyard of Abdullah. It is said that Rasul Wani then immediately proceeded to the Police Station and there lodged a report Ex. P. A. In the report the alleged information given by Ali Mir to Rasul Wani is set forth. But there is no mention in the report of any enquiries having been made from Mst. Jainti, Ghulam Qadir, the Halqa President, (P.W. 7), however, stated before the Board that on the arrival of Rasul Wani in the village & on enquiries being made by him both Ali Mir and Mst. Jainti straightway disclosed the fact that Wali Dar had committed the murder. On this point it is impossible to reconcile the evidence of Rasul Wani with the evidence of Ghulam Qadir.

15. It has already been stated that it is common ground that on the night in question Fazi slept with her two sons and. Mst. Jainti in one & the same room. It is, therefore, manifest that, on the discovery of the dead body, Abdullah, the Numberdar, the chowkidar, the Halqa President and ali concerned must have made close enquiries from Jainti and Ali Mir about this mysterious murder. Further if these two persons, who now pose as eye-witnesses of the incident, had then said what they say now, the fact that Wali Dar was responsible for the murder would have been mentioned in the report lodged by the Numberdar and Chowkidar. The conclusion, is therefore irresistible that till late in the afternoon of the 4th of Jan. neither Ali Mir nor Jainti disclosed any fact pointing to the guilt of the appellant. If Ali Mir, who is a lad of 9 or 10 years of age, had witnessed the murder of his mother, it is difficult, if not impossible, to believe that he would not have in the morning, on enquiries being made from him, disclosed the fact to the villagers. The story about the studious silence of Ali Mir till the alleged arrival of Rasul Wani from village Yamlehr and then prompt disclosure by him of the prosecution case in all its details appears to the Board a little too refined and a little too ingenious and has very much the complexion of fabrication.

16. Be that as it may, the case for the Prosecution, resting as it does on the testimony of the two alleged eye-witnesses, can succeed only if implicit reliance can be placed on their evidence. The evidence of these witnesses, however, does not command such reliance. The Board had the opportunity of watching Ali Mir in the witness-box. He is an extremely young and simple lad incapable, on his own initiative, of testifying in detail about various processes by which her mother was done to death and the dead body was lodged in the courtyard of Abdullah. Indeed, the Board is of the view that he is got-up witness and was well drilled to narrate the story that he did in Court.

17. There remains the evidence of Mst. Jainti, and the Board has no hesitation in rejecting her evidence. It is patent from her evidence that she is extremely hostile to the appellant. On every possible point, she attempted to stretch points against the appellant and went to the length of stating that the appellant was a dangerous character. Such being her attitude towards the appellant one would have expected her to come out with the story that she now narrates, at the earliest possible moment when the villagers assembled round the dead body. One, however, finds that in the report Ex. P.A. there is no mention of any enquiry having been made by Rasul Want’ from Jainti nor is there any suggestion in that report that. Jainti supported the alleged statement of Ali Mir about the appellant being responsible for the murder.

18. Apart from this, it is impossible to overlook the improbabilities in the story given out by Jainti. To begin with she stated that the room being locked, the appellant jumped into the same through an aperture in the wall, and when he committed the crime shrieks were raised not only by Fazi but also by Jainti. It may be, that in the dead of night, those shrieks did not reach the ears of the neighbours, but what is curious is that even though Jainti and Ali Mir, according to their statements, were lulled into silence by the threat of being put to death, they unhesitatingly broke their silence on the arriva, of Rasul Wani in the village. The story about the removal of the dead body by the appellant single-handed is also a bit curious. Jainti first deposed that the body was taken from the room through the aperture in the wall. She, however, presumably appreciating the absurdity of this portion of her statement, corrected herself, and said that the appellant unbolted the door of the room and then took the dead body out and after depositing the dead-body in the courtyard came back to the room and bolted the same from inside and thereafter went out of the room through the aperture in the wall.

19. The conduct of the appellant on the morning of the 4th January, as disclosed by Mst. Jainti, shakes confidence in the truth of her statement. She admitted that, on coming to know of the fact of the murder of Fazi, the appellant clung to her body and was bitterly weeping. This, to say the least, is not the conduct of a person who, a few hours before, had mercilessly murdered his own sister who was a source of livelihood to him, his wife and his children.

20. It is clear from the evidence in the case that Wali Dar was, rightly or wrongly, regarded by residents of Lachh as the village-bully. This accounts for the fact that not one single resident of that village lent a helping hand to Wali Dar during the trial of the case and Jainti, his wife, went to the length of appearing as an eye-witness against him. Abdullah (P.W. 3) has stated that on the discovery of the dead body the suspicion of the villagers fell upon-Wali Dar, and circumstances point to the conclusion that by hook or crook, the villagers managed to induce Ali Mir and Jainti to implicate the appellant. The story told by Rasul Wani that he reached village Lachh at about 10. a. m. and then Ali Mir told him that the appellant was responsible for the murder is falsified by the evidence of the investigating Officer, Prem Nath. It is clear from, his evidence that till 1. p.m. nobody had connected the appellant with the commission of the crime. The mystery surrounding the two reports in the Police Station is not solved by the evidence in the case and the conclusion is irresistible that the 2nd report lodged by Rasul Wani was the outcome of a conspiracy between and belated decision by the villagers to implicate the appellant. On the evidence in the case, it is impossible to record a definite finding on the cardinal question as to whether Fazi was murdered in one of the rooms of Ali Jabbar’s house or the scene of murder was some other -place. It follows that this must remain a casa of undetected crime.

21. On a consideration of the entire evidence in the case, the Board has come to the conclusion that there is room for grave doubt in the truth of the prosecution story and the appellant is entitled to the benefit of that doubt.

22. For the reasons given above, this appeal must be allowed, the conviction of and the sentence of death passed upon the appellant must be set aside and he should be acquitted, and the Board will humbly advise His Highness accordingly.

Lok Nath vs Rohlu Ram on 1 January, 1800

Jammu High Court
Lok Nath vs Rohlu Ram on 1 January, 1800
Equivalent citations: AIR 1951 J K 25
Author: Kilam
Bench: J N Wazir, J L Kailam


JUDGMENT

Kilam, J.

1. This plaintiff’s first appeal is directed. against a judgment of the Subordinate Judge. Jammu dated 18th Phagan 2006 and arises out of the facts given below. The following pedigree table will facilitate their understandings :

JAWAHIR
__________________|___________________
| |
Jagat Ram (dead) Gopi
__________________________________________|________
| | | |
Amin Chand Lakshmi Dewan Shiv Ram
(dead) Dayal Chand |
Deft. 3 Deft. 4 Lok Nath Plff.

2. The plaintiff brought a suit for recovery of. land measuring 136 Kanals and 8 1/3 marlas with the allegation that it was his exclusive property. As early as 1958 the suit land was acquired by Jagat Bam and Shiv Bam by means of a registered sale deed. Sometime after Jagat) Ram died, and his share in the land was mutated in the name of Shiv Ram alone. Shiv Bam also died leaving behind his sou Lok Nath plaintiff. In the year 1982, the widow of Shiv Bam made a statement before the Tabsildar that her husband Shiv Ram was the Managing member of the joint family even when his father was alive and as the Manager of the family he acquired some land for the family, though the sale deeds were exacuted in his name. She, therefore, requested the revenue authorities to effect a mutation in the names of Lakshmi Dayal and Dewan Chand who are the brothers of Shiv Bam and uncles of Lok Nath. This prayer of hers was accepted by the mutation officer and the names of the plaintiff’s uncles, i. e., Lakshmi Dayal and Dewan Chand were added in the register of mutation as owners along with the plaintiffs Lok Nath. Admittedly Lok Nath was a minor then. It was later on in the year 1991 that the suit land was sold to defendants 1 and 2 by Lakshmi Dayal, Dewan Chand, and Lok Nath Bhagwanti widow of Shiv Bam acting as the guardian of Lok Nath plaintiff. Mutations were effected in the names of the vendees and they continued in possession of the land upbo the year 2005 when Lok Nath brought the present suit for the possession of land sold to defendants 1 and 2.

3. The main ground of attack made by Lok Nath was that during hia minority his uncles i, e. defendants 3 and 4 took advantage of the simple. mindedness of his mother and without any right or title they got mutations of the land in question effected in their names which they later on transferred by sale including the share which was reserved for the plaintiff, to defendants 1 and 2. On these grounds he made a prayer for possession of the suit land.

4. The contesting defendants resisted the suit on the ground that Shiv Ram, father of the plaintiff, was living jointly with hia two brothers, Lakshmi-Dayal and Dewan Chand, defendants 3 and 4 and that the property acquired by him in his own name was in reality the property of the joint family. They further aver in their written statement that the sales were effected for consideration and legal necessity, and though the plaintiff was technically a minor at the time the sales were effected, yet he had completed his 17th year and had enough mental maturity to understand his profit and loss. His mother was his natural guardian and she could alienate land on his behalf for legal necessity. It was further pleaded in the written statement that the suit was barred by time.

5. The main points which need discussion and decision in this case are whether Shiv Ram father of the plaintiff was the sole owner of the land in dispute, or was he a member of the joint family who had made acquisitions of property in his own name, yet essentially for the whole family? Secondly, is the suit within time? We think the point of limitation raised by the defendants may be firstly gone into.

6. The suit has been brought in Baisakh 2005. In his statement dated 20th Jeth 2005 recorded on page 127 of the trial Court file Lok Nath has stated his age to be between 29 and 30. Contesting defendants too have in their written statement stated his age as 29. For all purposes this may be held to have been proved that he was of 29 years on the date when the present suit was brought. From this, it follows that Lok Nath was about 16 years on the day when the two sale deeds in favour of defendants 1 and 2 were executed i. e. on 4th Baisakh 1991. Lok Nath became major some where in 1993 or 1994. The learned counsel for the appellant has argued that the suit is governed by Article 142 of the Limitation Act and that the period of limitation for such a suit which is for possession, is 12 years from the date when the sale deed was executed, but the learned counsel adds that in the present case, the period of 12 years shall have to be computed from the year when the plaintiff became a major. As already stated, the plaintiff became major in the year 1993 or 1994. The present suit has been brought in the year 2005 i. e., after 14 years of the execution of the sale deeds, but within 12 years of his attaining majority. But a closer examination of the argument of the learned counsel would show that even though the suit be held to be governed by Article 142, Limitation Act, yet the suit of the plaintiff cannot be found to be within time. This we shall discuss in further detail later on. But meanwhile we shall see as to which Article of the Limitation Act is applicable to the present suit. It is a fact that the present suit is in form one for possession, yet in essence it is obvious that it is a suit by a ward, who had attained majority to set aside the transfer of his property made by his guardian. Article 44, Limitation Act, is applicable to such a suit. A prayer for possession of such property would make no difference. This article gives only a period of three years to bring a suit from the date when the transfer has taken place. There is ample authority for this proposition. In Ankatnma v. Kameshwaramma, A. I. R. (22) 1935 Mad. 1 it has been held that :

”a suit to set aside an alienation made during the minority of an adult member filed beyond three years of his attaining majority but within 12 years of the alienation is barred, and there is no difference, even if the plaint contains a prayer for possession.”

In G.M. Rasiwi Ali v. Ratnainanikka Mudaliar, A. I. R. (25) 1938 Mad. 677 it has been laid down that:

“the policy of Article 44 is that a question of that kind (dispossession of an alienee) should be investigated and decided within a period of three years after the attainment of majority by the ward . . . .”

A similar view has been taken in Kuppuswami Ayyar v. Sabapathy, A. I. R. (23) 1936 Mad. 943 and Kondaji Bagaji v. Dugadu Gajalia, A. I. R. (22) 1935 Bom. 259.

7. The trend of the authorities is that in spite of the fact that the suit is for possession of the property alienated during the minority of a person, it has yet to be brought, within three years from the date when the person attains majority.

8. In this case the plaintiff attained majority in 1993 or 1994. At the most the suit should have been brought in the year 1997. Applying Article 44 to it, the suit which has been brought in 2005 is clearly time-barred. The argument of the plaintiff’s learned counsel that the suit is governed by Article 142, Limitation Act, is not supported by the above authorities. Nor has the learned counsel brought any authority to our notice which might Induce us to take a different view from the one expressed above. But even as it is, let us examine his argument.

9. We have noted somewhere in this judgment that even if the argument of the plaintiff’s learned counsel be held as correct, still the suit is not within limitation. The learned counsel argues that 12 years shall have to be computed from the time when the plaintiff became major. His argument is that the plaintiff became major in 1993 or 1994 and as the suit has been brought in Baisakh 2005, his suit is within 12 years of

his attaining majority and as such within time. The learned counsel computes 12 years from the date when the plaintiff became major. But while doing so, he has completely overlooked the provisions of Section 8, Limitation Act, which says that the period of limitation shall not be deemed to extend for more than 3 years from the cessation of the disability of the person concerned in bringing the suit. Illus. (b) to Section 8 which runs as follows makes the meaning of this section all the more clear.

(b) “A right to sue for an hereditary office accrues to A who at the time is insane. Six years after the accruer, A recovers his reason. A has fix years under the ordinary law from the date when his insanity ceased within which to institute a suit. No extension of time will be given to him under Section 6 read with this section.”

Taking this into consideration, no extension is possible so far as the plaintiff in the preaent case is concerned. The transfer having been made in the month of Phagan 1991, the present suit should have been ordinarily brought by Phagan 2003. The plaintiff became major in 1993 or 1994, i. e., after about 3 years of the transfer. The question is: is he entitled to any extension of time under Section 8, so as to make it possible for him to bring the suit in 2005 ? The answer to this is in the nega-tire, since alter the attainment of majority he had yet nine years left to bring the suit under the ordinary law. In such cases Section 8 does not permit any extension of time. The period can be extended upto an extent of three years if under the ordinary law out of the period of limitation prescribed, there remains a period of less than three years for bringing a suit. But if the period remaining is more than three years, no extension can be granted.

10. From the above, it must become abundantly clear that the suit of the plaintiff even if Article 142, Limitation Act were made applicable, is barred by time.

11. In view of our finding on the point of limitation, there was no necessity for us to discuss any other issue but we think that some discussion on the point as to whether the family of which the plaintiff’s father was a member was living in jointness or not, may be made. It is in evidence that the property was acquired in the name of Shiv Ram in the life-time of his father Gopi. There is the statement of Shiv Ram’s widow before the revenue authorities that Shiv Ram was acting as the Manager of the family. It is true that there is m presumption under the Hindu Law that a joint family possesses joint property but if once it is proved or admitted that
family is joint and if any member claims any portion of the property as his separate property, the burden of proof lies on him to show that it was acquired by him in circumstances which would constitute it as his separate property. In Johnston v. Gopal Singh, A. I. R. (18) 1931 Lah. 419 it has been held that:

“the mere foot that the property was purchased in the name of one member of the family and that there are receipts in his name respecting it, does nob render the property his separate property for all that is perfectly consistent with the notion of its being joint.”

12. The plaintiff has produced Girdhari Lal and Ram Labhaya to prove that he was not a member of the joint family. But their statements are so vague and indefinite that the trial Court has rightly discarded this evidence. As against this, the contesting defendants have produced ample evidence including documentary evidence to prove that the plaintiff and his two uncles defendants 3 and 4 were living in jointness. The plaintiff has admitted in the civil suit brought by the firm Baba Shah against defendants 3 and 4 and himself that they were all members of joint family. The City Judge gave a finding with respect to the jointness of the family which was confirmed by the learned District Judge. The admissions of the plaintiff coupled with the other-evidence led in the case makes if amply clear that the family was living in jointness.

13. We, therefore, find that defendants 3 and 4 were as good owners of the land in dispute as the plaintiff himself. The passing of the consideration has been proved by Anant Ram scribe of the document and Dina Nath marginal witness. The consideration of the other sale deed dated 4th Phagan 1991 is proved by Kripa Ram witness. He states that out of the sale proceeds his decree amounting to Rs. 136-12-0 and Bhola Nath’s decree for Rs. 1600 was satisfied. Both these decrees were against the joint family of which the plaintiff had admitted and was proved to be a member. This disposes of the question of legal necessity also, which is held to be proved.

14. In view of the foregoing, we dismiss this appeal with costs.

Wazir C.J.

15. I agree.

Gulzari Lal vs Karam Chand on 1 January, 1800

Jammu High Court
Gulzari Lal vs Karam Chand on 1 January, 1800
Equivalent citations: AIR 1951 J K 17
Author: Kilam
Bench: J N Wazir, J L Kilam


JUDGMENT

Kilam, J.

1. This deft’s, first appeal involves the following two prayers. That the decree of Rs. 3700 passed against; him in favour of the plff. be set aside & a decree for a sum of Rs. 3664-10-6 be passed in his favour againat the plff. The appeal arises out of the following facts as alleged by the plff.

2. The deft. entered into an agreement with the plff. whereby he undertook to supply 8,000 bamboo sticks at Rs. 1-8-0 per stick, & in pursuance thereof he received a sum of Rs. 1000 at the time the agreement was executed. It is further alleged by the plff., which is not denied by the deffc , that the deffc. in all received Rs. 16916 5-6 from the plff. against which the deft, supplied bamboo sticks on different dates to the extent of 8140, the price of which at the rate fixed came to Rs. 12210. Deducting this amount from the amount advanced i. e. 16915.5-6, there was a balance of Rs. 3705-5-6 left with the deft. in favour of the. plff. out of which the plff. relinquished his claim to Rs. 5-5-6 & brought a suit for Rs. 8700 only.

3. The deft. has admitted his having entered into an agreement for the supply of bamboo sticks & has also admitted the correctness of the terms laid therein. He has also admitted the receipt of Rs. 15015-5-6. The only point at which he is at variance with the plff. is with regard to the number of sticks supplied. The deffc. says that he had supplied 12980 bamboo sticks, the price whereof at the rate fixed came to Rs. 19470, out of which while deducting Rs. 15915-5-6, he claims Rs. 3564-10-6 from the plff.

4. The main issue in the case was as to whether the deft. had supplied 12980 bamboo sticks to the plff. The first point taken in this appeal was that the suit was triable by a Debfc Conciliation Board & that the trial Courfc, in spite of an application having been made to it to this effect, had refused to send over the case to the Board.

5. It may be stated here that the deffc. had made an application to the Debt Conciliation Board as well praying that a notice be issued to the trial Courfc that the case be transferred to the Board for decision. The Board gave its decision on the application on 28-8-2007 & held that the debt involved in the suit was not a debt as defined in the Distressed Debtors’ Relief Act. The Board, therefore, refused to issue a notice fco the Courfc as was prayed by the deft, in his application. The Board having held fchafc the debt involved was one wifch regard fco which an adjudication by the Board was not provided by law, the trial Court refused to send the case to the Board. In this Court the argument; advanced in this behalf has assumed more or less a different complexion. It is argued that the advance made is of the nature of a debt & as it is of a value of less than Rs. 5,000, the case should have been sent to the Debt Conciliation Board for decision. As against this, it is argued on behalf of the respondent; that the debt was incurred by the appellant for purposes of trade & as such it does not fall within the definition of debt as given in the Distressed Debtors’ Relief Act which runs as follows :

“Debt means a liability of a debtor in easo or kind payable under a decree or order of a civil Court or otherwise but shall not include.

…………………………………………………………………………

(iv) “debts incurred by a trader for purposes of trade.”

The word ‘trade’ has not been defined in the Distressed Debtors’ .Relief Act. The only course open for us therefore is fco go to the dictionary meaning of the word ‘trade’. In Webster’s dictionary we find the following meaning has been given fco the word “trade” :

“Act or business or exchanging commodities by barter, or by buying & selling for money; commerce, traffic, Trade, in this sense comprehends every species of exchange or dealing either in the produce of land, in manufacture, in bills or in money, but it in chiefly used to denoto the barter or purchase & sale of goods wares, & merchandise, either by wholesale or retail.”

Further on, the same dictionary gives the meaning of the word ”trade” as a “bargain, a purchase & sale.” In Oxford Concise Dictionary the meaning, of the word “trade” has been given as “exchange of commodities for money or other commodities.” Chambers’ Twentieth Century Dictionary gives the meaning of the word “trade” as “baying A selling.”

6. Now bearing the meaning of the word “trade” in mind, we have no hesitation in holding that the advance in this case was made for purposes of fcrade. The deffc. entered into an agreement for supply of bamboo sticks & received advances of money for this purpose. The distinction between a loan & advance has been made out in Mt. Ummatul Hahman v. Sri Ram, A. I. R. (32) 1945 ALL. 277 wherein the learned Judge has enunciated the law in the following words :

“An advance payment of the price of commodity sold cannot be a loan within the meaning of the Act, There is a very narrow distinction between a loan & an advance payment of the purchase price of a commodity. Whether any particular advance is a loan or part payment must, depend upon the construction of the agreement between the parties. If the money wag advanced by way of financing a party who had promised in consideration of the advance eventually to sell a commodity, the transaction would be a loan. But if there was a definite agreement to sell & a definite understanding that money paid was part of the purchase price, the transaction could not possibly be a loan.”

A reference to the agreement in this case would show that there was a definite promise to sell & a definite understanding that the money advanced was a part of the purchase money, we, therefore, hold that the advances made were not of the nature of a loan or debt & as such the case was triable by the trial Court.

7. As regards the main plea advanced by the deft. that he had supplied bamboo sticks in excess of those admitted by the plff., the deft, has produced a number of witnesses. Before discussing their evidence it may be mentioned here that the deft, has executed receipts for every pie that he had. received from the plff. But he has not produced any receipt for the supplies made by him. He simply says that no receipts were given to him by the plff. There is no reason as to why the deft. should not have insisted on getting receipts for the supplies that were made by him, more so when he had on his part executed receipts for the payments received by him. [After discussing the evidence, the judgment proceeds as follows :–

8. All this is enough to show the vague & indefinite character of the statements of the deft.’s witnesses. Under these circumstances we do not find any force in this appeal which is therefore rejected with costs.