PETITIONER: HARI SAO AND ANR. Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 15/10/1969 BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. REDDY, P. JAGANMOHAN CITATION: 1970 AIR 843 1970 SCR (2) 823 1969 SCC (3) 107 ACT: Indian Railways Act (9 of 1890), ss. 73 and 74 and Goods Tariff General Rules, rr. 15 and 22-Scope of-Issue of railway receipt by railway-Description, number and weight of goods not accepted by railway but only as alleged, by consignor-Despatch of different goods-If amounts to cheating under s. 415, Indian Penal Code, 1860. HEADNOTE: On the production of a forwarding note for booking a consignment of dry chillies to Calcutta, a railway wagon was allotted to the appellants who loaded it without any help from any railway employee. The wagon was rivetted and card labels were fixed on both sides. A railway receipt was made out wherein the consignment was 'said to. contain' 251 bags of dry chillies. The letters "L/U" were endorsed on the receipt meaning that the responsibility of loading and unloading rested with the consignor. There was no facility for weighing the goods at the loading station and it was indicated that the weight was as given by the consignor by the endorsement S.W.A. (Sender's weight accepted). The Wagon was attached to a goods train which left for Calcutta. Two days later the seal on one side of the wagon was found broken and when the wagon was examined it found to contain 197 bags of chaff instead of 251 bags of chillies. The police investigated into the matter and filed a charge sheet against the appellant and they were convicted of the offence of cheating and the Conviction was confirmed by the High Court. It was found that the appellants had obtained a SLIM of Rs. 5,500 from a third party by handing over the railway receipt to him representing that they had booked 251 bags of chillies. In appeal to this Court, HELD : The appellants had by deceiving the Station Master induced him to deliver a railway receipt which they had used as a valuable security but, the false representation made by them in obtaining the receipt, in the form in which it was issued, did not cast any additional liability on the Railway and therefore, the issue of the receipt did not cause any damage or harm to the railway. Hence no question of cheating the railway or Station Master arose in the case. [829 F] The 'railway did not run any additional risk or liability in acting upon the representation of the appellants and issuing the receipt because, there would be no presumption that the goods put in the wagon were chillies since the railway did not accept the consignment as such but described as allegedly containing 251 bags of chillies. Nor was there any acceptance of the weight of the goods. In case of loss the appellants had to prove that they had put on rail 251 bags of chillies with their weight and approximate value, before any liability of the railway could arise under ss.73 and 74 of the Indian Railways Act. Under r. 15 of the Goods Tariff General Rules the mention of the weight of the goods in the receipt did not amount to an admission in that behalf by the railway, and Rule 22 read with Rule 24(2) only made a false declaration as to goods in a forwarding note subject to the penalty of a fine in addition to the liability to pay for the freight of the goods at the proper rate. [828 A-G] 824 Dominion of India v. Firm Museram Kishunprad, A.I.R. 1950 Nagpur 85 and Union of India v. S. P. Lekhu Reddiar, A.I.R. 1956 Madras 176, approved. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 240 of
1966.
Appeal by special leave from the judgment and order dated
July 4, 1966 of the Patna High Court in Criminal Appeal No.
524 of 1964.
K. C. Dua and U. P. Singh, for the appellants.
D. P. Singh, R. K. Garg and Uma Datta, for the respondent.
L. M. Singhvi and S. P. Nayar, for the Union of India.
The Judgment of the Court was delivered by
Mitter, J. This appeal by special leave is from a judgment
and order of the High Court of Patna upholding the
conviction of the two appellants under s. 420 I.P.C. read
with S. 34 but reducing the sentence of imprisonment on each
of them by awarding rigorous imprisonment for three years in
place of seven years. The imposition of fine of Rs. 6,000
on each of the appellants by the Sessions Judge was
maintained by the High Court. The two appellants were
charged with having cheated the Assistant Station Master of
Sheonarayanpur Railway Station on or about the period 13th
May 1960 to 12th May 1963 by dishonestly inducing them to
make a railway receipt with false particulars which was
capable of being converted into a valuable security and.
thereby committed an offence punishable under S. 420 I.P.C.
Five other persons were charged along with the appellants
with having committed an offence punishable under S. 120-B
read with s. 420 of the Indian Penal Code but they were
acquitted. The appellants were also charged under S. 468 of
the Indian Penal Code but they were acquitted of this.
The facts about which there can be no dispute are as
follows. The appellant Shankar Sah met the Station Master
of Sheonarayanpur Railway Station on May 11, 1960 and
produced a forwarding note for, booking a consignment of dry
chillies to Calcutta. A wagon was allotted to him and
stabled in the shed on May 12, 1960. On the day following
both the appellants came to the Station Master and the
necessary allotment entry was made in the forwarding note.
The loading was done by the appellants without any help from
any railway employee and the appellants wanted to be
supplied with rivets after the wagon was loaded by them.
Such supply being given by the Station Master they put the
rivets on the wagon. A railway khalasi examined the rivets,
825
sealed the wagon and fixed card labels on both sides of the
wagon prepared by the Station Master. The railway receipt
for the goods was made out by the Station Master to the
effect that the consignment was “said to contain” 251 bags
of dry chillies. The letters L/U were endorsed on the
railway receipt meaning that the responsibility for loading
and unloading of the consignment rested with the consignor.
There was no facility for weighing the goods at the station
and a note was made that the weight was as given by the
consignor. This was indicated by the endorsement S.W.A.
(sender’s weight accepted). The wagon was attached to a
goods train on the, same day and carried forward out of the
Station on its way to Calcutta. There were frequent check-
ings of the rivets and the seals of the wagon during the
night of 13th May but on the morning of the 14th the seal on
one side of the wagon was broken and the seal card lying on
the ground. The wagon was detached and taken to a goods
shed and checked at about 2 p.m. on 15th May. It was found
that the wagon contained only 197 bags of chaff (Bhusa)
instead of 251 bags of dry chillies. An entry was made in
the station diary and a first information report was lodged
on 18th May. The police submitted a charge sheet against
the accused and the case proceeded to trial after the
commitment enquiry. The prosecution examined several
witnesses to establish that the appellants had brought straw
to the goods shed at Sheonarayanpur in place of chillies and
loaded the wagon therewith. The Sessions Judge did not
accept the evidence of some of them but relied upon that of
P.W. 8, a cartman who gave testimony to the effect that he
along with others had loaded straw in the wagon mentioned.
There was evidence before the Sessions Judge that the appel-
lants had obtained a sum of Rs. 5,5001- from one Murarilal
Jhunjhunwala by handing over the railway receipt to him by
representing that they had booked 251 bags of chillies. The
Sessions Judge held that the Station Master had not checked
the goods or verified the weight thereof but had acted on
the representation of the appellants. According to him the
appellants were guilty of an offence under S. 420 read with
s. 34 I.P.C. and he sentenced them as already mentioned.
In appeal the learned Judge of the High Court after discus-
sing the evidence felt satisfied that what “was found as a
result of the checking at 2 p.m. on 15th May 1960 to be
present in the wagon was nothing but the consignment which
had been originally loaded by the appellants at
Sheonarayanpur on the afternoon of 13th May 1960”. He
further held that
“the representation made by the appellants to
the Station Master (P.W. 39) both orally and
in the for-
826
warding note which they had presented to him
was a false representation and on the strength
of such false representation the appellants
had induced the Station Master? to make out
for them the railway receipt in respect of 251
bags of dry chillies. It is manifest that a
valuable security such as a railway receipt
is. in respect of 251 bags of chillies had
been delivered to the appellants by the
Station Master on the basis of the false
representation which they had made to him both
orally and in the forwarding note.”
The learned Judge therefore held that the appellants had
committed the offence of cheating acting together in
pursuance of their common intention.
It had been urged that the appellants were not guilty of
cheating in as much as the Station Master had written on the
railway receipt that the consignment in question was said to
be 251 bags of dry chillies and thus he could not be said to
have acted upon the declaration of the appellants being
correct. Similarly with regard to the other endorsement on
the railway receipt “S.W.A.” meaning “senders’ weight
accepted” it was made by the Station Master acting upon the
declaration of the appellants.
Under s. 41 5 of the Indian Penal Code a person is said to
cheat when he by deceiving another person fraudulently or
dishonestly induces the person so deceived to deliver any
property to him, or to consent that he shall retain any
property or intentionally induces the person so deceived to
do or omit to do anything which he would not do or omit if
he was not so deceived and which act or omission causes or
is likely to cause damage or harm to that person in body,
mind, reputation or property. There can be no doubt that
the appellants had by deceiving the Station Master induced
him to deliver a railway receipt which could be used as a
valuable security; but assuming that the appellants thereby
induced the Station Master to make out the railway receipt
it will still have to be shown that the making out of the
receipt was likely to cause damage or harm to the railway or
the Station Master.
We have therefore to examine whether the issue of the rail-
way receipt with the endorsements “said to, contain” and
“S.W.A.” were likely to cause any damage to the railway.
Under s.58 of the Indian Railways Act the owner or person
having charge of any goods which are brought upon a railway
for the purpose of being carried thereon, has to deliver to
a railway servant appointed in that behalf an account in
writing signed by such owner or person and containing such
description of the goods as may be
827
sufficient to determine the rate which the railway
administration is entitled to charge in respect thereof.
This section casts an obligation on the owner or person
having charge of goods to be carried by a railway to give a
correct description thereof. Failure in this respect may,
under sub-s. (3) entitle the railway administration to
charge in respect of the carriage of the goods at a rate not
exceeding double the hi-best rate which may be in force at
the time on the railway for any class of goods. Under s.72
a person delivering to a railway administration goods to be
carried by railway has to execute a note (forwarding note)
in which the sender or his agent has to give such
particulars in respect thereof as may be required. Section
73 provides for the general responsibility of a railway
administration as a carrier of animals and goods except from
any of the causes specified therein. But under the proviso
to the section even in the case of loss, destruction etc.
from any of the said causes, the railway administration is
not relieved of its responsibility for the loss, destruction
etc. of the goods unless it proves that it has used
reasonable foresight and care in the carriage of the goods.
Under s. 74 where goods are tendered to a railway
administration for carriage at a special reduced rate known
as ‘the owner’s risk rate’ then, notwithstanding anything
contained in section 73, the railway administration is not
to be responsible for any loss, destruction, damage etc.,
from whatever cause arising, except upon proof that such
loss, damage, destruction etc. was due to negligence or
misconduct oil the part of the railway administration or any
of its servants. Under s.106 a person requested under s.58
to give an account with respect to any goods and giving one
which is materially false may be punished with fine which
may extend to Rs. 156 for every quintal or part of a quintal
of the goods in addition to any rate or other charge to
which the goods may be liable is therefore clear that the
railway administration may be liable for loss, destruction
or non-delivery of the goods under s.73 if it fails to use
reasonable foresight and care in the carriage of the same
and would also be similarly liable even in respect of goods
carried at special reduced rate if there was negligence and
misconduct on its part or any of its servants. Such
liability on the part of the railways arises whenever it
issues a railway receipt. The question therefore arises as
to whether the railway ran any additional risk or liability
in acting upon the representation of the appellants and
mentioning in the railway receipt the goods consigned were
said to be 251 bags of chillies when in fact they were only
197 bags of straw. There can be little doubt that the
railway did not run any additional risk. In case the goods
were consumed by fire or even stolen from the wagon due to
any negligence on the part of railway administration the
owner would have to prove that he had put on rail 251 bags
of
828
chillies. He would also have to prove the weight of the
chillies and the approximate value thereof. For this he
would have to call evidence to show how and when he acquired
the goods and the price he paid for them and exactly what
quantity he loaded in the wagons. There would be no
presumption that the (Foods put in the wagon were chillies
because the railway did not accept the consignment as such
and described it as 251 bags allegedly containing chillies.
Nor was there any acceptance of the weight of the goods by
the railway. The endorsement “S.W.A.” would negative the
plea, if any, that the weight was accepted by the railway.
The endorsement “L/U” emphasised that the loading and
unloading being in charge of the consignor the railway could
not be held liable for any negligence in loading or
unloading.
In this connection reference may be made to the Goods Tariff
Rules. Rule 15 of Part 1 of the Goods Tariff shows that :
“The weight, description and classification of
goods and quotation of rates as given in the
railway receipt and forwarding note are merely
inserted for the purpose of estimating the
railway charges and the railway reserves the
right of re-measurement, re-weighment,
reclassification of goods and re-calculation
of rates and other charges and correction of
any other errors at the place of destination
and of collecting any amount that may have
been omitted or undercharged. No admission is
conveyed by a railway receipt that the weight
as shown therein has been received or that the
description of goods as furnished by the
consignor is correct.”
Under Rule 22(1) every consignment of goods when handed to
the railway for despatch must be accompanied by a forwarding
note which must be signed by the sender or his authorised
agent and must contain a declaration of the weight in
accordance with s.58 of the Indian Railways Act and
destination of the goods consigned. Under Rule 24(2) if a
materially false account is delivered with respect to the
description of any goods, the person who gives such false
account, and if he is not the owner, the owner also, is, on
conviction by a Magistrate, liable to a fine which may
extend to Rs. 50/- per maund or part of a maund of the
goods, and such fine will be in addition to the rate to
which the goods may be liable.
In Dominion of India v. Firm Museram Kishunprasad(l) a a
railway receipt was issued to the consignor qualified with
the statement that the wagon was said to contain 255 bags of
coconuts. As only 251 bags were received at the
destination, the plaintiff made a claim for the price of the
4 bags of coconuts by
(1) AIR. 1950 Nag. 85.
829
way of damages. It was held by the Nagpur High Court that
there was no proof that 255 bags had in fact been loaded.
Referring to R. 22 of the Goods Tariff General Rules it was
said that the receipt issued “qualified the number by
stating that the wagon was ‘said to contain’ 255 bags and
the number was mentioned merely to calculate the freight.”
Reference was also made to Rule 15 under which the
mentioning of the weight in the railway receipt did not
amount to an admission of the correctness of the statement
and according to Nagpur High Court “this rule applies with
even more vigour where the railway receipt in addition
contains the ‘said to contain’ remark.”
In Union of India v. S.P.L. Lekhu Reddiar(l) a claim was
made against the railway for short delivery of 11 bags. The
railway receipt showed that the wagon was said to contain
200 bags of white toor. It was urged there that as the
seals were intact at the end of the journey the
responsibility for the shortage must lie with the railway.
It was pointed out that this would be so if the railway
staff had loaded the goods after verifying them and in the
circumstances of the case, the railway could not be held
responsible for any shortage so long as there was no proof
of tampering with the seals. The decision in the Nagpur
case was followed in Madras and it was held that the
endorsement to the effect that the consignment was ‘said to
contain’ a certain number of bags did not amount to any
admission on the part of the railway administration that the
said number of bags had in fact been loaded.
It appears to us that the false representation made by the
appellants in obtaining the railway receipt in the form in
which it was issued did not cast any additional liability on
the railway and the issue of the railway receipt therefore
was not likely to cause any damage or harm to the railway.
No question of cheating the railway or the Station Master
therefore arose in this case and the appeal must be allowed.
The appellants are directed to be set at liberty. The fine,
if paid, must be refunded.
Y.P. Appeal allowed.
(1) A.I.R. 1956 Madras 176.
830