{"id":81987,"date":"1969-10-15T00:00:00","date_gmt":"1969-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-sao-and-anr-vs-state-of-bihar-on-15-october-1969"},"modified":"2016-07-02T13:08:57","modified_gmt":"2016-07-02T07:38:57","slug":"hari-sao-and-anr-vs-state-of-bihar-on-15-october-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-sao-and-anr-vs-state-of-bihar-on-15-october-1969","title":{"rendered":"Hari Sao And Anr vs State Of Bihar on 15 October, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hari Sao And Anr vs State Of Bihar on 15 October, 1969<\/div>\n
Equivalent citations: 1970 AIR 843, \t\t 1970 SCR (2) 823<\/div>\n
Author: G Mitter<\/div>\n
Bench: Mitter, G.K.<\/div>\n
           PETITIONER:\nHARI SAO AND ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT:\n15\/10\/1969\n\nBENCH:\nMITTER, G.K.\nBENCH:\nMITTER, G.K.\nSIKRI, S.M.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1970 AIR  843\t\t  1970 SCR  (2) 823\n 1969 SCC  (3) 107\n\n\nACT:\nIndian\tRailways  Act (9 of 1890), ss. 73 and 74  and  Goods\nTariff\tGeneral\t Rules,\t rr. 15\t and  22-Scope\tof-Issue  of\nrailway receipt by railway-Description, number and weight of\ngoods  not  accepted  by railway but  only  as\talleged,  by\nconsignor-Despatch of different goods-If amounts to cheating\nunder s. 415, Indian Penal Code, 1860.\n\n\n\nHEADNOTE:\nOn  the\t production  of\t a forwarding  note  for  booking  a\nconsignment of dry chillies to Calcutta, a railway wagon was\nallotted  to the appellants who loaded it without  any\thelp\nfrom any railway employee.  The wagon was rivetted and\tcard\nlabels were fixed on both sides.  A railway receipt was made\nout wherein the consignment was 'said to. contain' 251\tbags\nof  dry\t chillies.  The letters \"L\/U\" were endorsed  on\t the\nreceipt\t meaning  that\tthe responsibility  of\tloading\t and\nunloading rested with the consignor.  There was no  facility\nfor  weighing  the goods at the loading station and  it\t was\nindicated  that the weight was as given by the consignor  by\nthe  endorsement  S.W.A. (Sender's  weight  accepted).\t The\nWagon was attached to a goods train which left for Calcutta.\nTwo  days later the seal on one side of the wagon was  found\nbroken\tand when the wagon was examined it found to  contain\n197  bags  of chaff instead of 251 bags\t of  chillies.\t The\npolice investigated into the matter and filed a charge sheet\nagainst the appellant and they were convicted of the offence\nof  cheating  and the Conviction was confirmed by  the\tHigh\nCourt.\tIt was found that the appellants had obtained a SLIM\nof Rs. 5,500 from a third party by handing over the  railway\nreceipt to him representing that they had booked 251 bags of\nchillies.\nIn appeal to this Court,\nHELD  : The appellants had by deceiving the  Station  Master\ninduced him to deliver a railway receipt which they had used\nas a valuable security but, the false representation made by\nthem  in obtaining the receipt, in the form in which it\t was\nissued, did not cast any additional liability on the Railway\nand  therefore, the issue of the receipt did not  cause\t any\ndamage\tor  harm  to  the railway.   Hence  no\tquestion  of\ncheating  the railway or Station Master arose in  the  case.\n[829 F]\nThe 'railway did not run any additional risk or liability in\nacting upon the representation of the appellants and issuing\nthe receipt because, there would be no presumption that\t the\ngoods  put in the wagon were chillies since the railway\t did\nnot  accept  the  consignment  as  such\t but  described\t  as\nallegedly  containing 251 bags of chillies.  Nor  was  there\nany acceptance of the weight of the goods.  In case of\tloss\nthe  appellants had to prove that they had put on  rail\t 251\nbags  of chillies with their weight and\t approximate  value,\nbefore any liability of the railway could arise under  ss.73\nand 74 of the Indian Railways Act.  Under r. 15 of the Goods\nTariff General Rules the mention of the weight of the  goods\nin the receipt did not amount to an admission in that behalf\nby the railway, and Rule 22 read with Rule 24(2) only made a\nfalse  declaration as to goods in a forwarding note  subject\nto the penalty of a fine in addition to the liability to pay\nfor the freight of the goods at the proper rate. [828 A-G]\n824\nDominion  of India v. Firm Museram Kishunprad,\tA.I.R.\t1950\nNagpur 85 and Union of India v. S. P. Lekhu Reddiar,  A.I.R.<\/a>\n1956 Madras 176, approved.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 240 of
\n1966.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJuly 4, 1966 of the Patna High Court in Criminal Appeal\t No.
\n524 of 1964.\n<\/p>\n
K.   C. Dua and U. P. Singh, for the appellants.
\nD.   P. Singh, R. K. Garg and Uma Datta, for the respondent.
\nL.   M. Singhvi and S. P. Nayar, for the Union of India.
\nThe Judgment of the Court was delivered by
\nMitter,\t J. This appeal by special leave is from a  judgment
\nand  order  of\tthe  High  Court  of  Patna  upholding\t the
\nconviction  of the two appellants under s. 420\tI.P.C.\tread
\nwith S. 34 but reducing the sentence of imprisonment on each
\nof them by awarding rigorous imprisonment for three years in
\nplace  of seven years.\tThe imposition of fine of Rs.  6,000
\non  each  of  the  appellants  by  the\tSessions  Judge\t was
\nmaintained  by\tthe  High Court.  The  two  appellants\twere
\ncharged with having cheated the Assistant Station Master  of
\nSheonarayanpur\tRailway Station on or about the period\t13th
\nMay  1960 to 12th May 1963 by dishonestly inducing  them  to
\nmake  a\t railway receipt with false  particulars  which\t was
\ncapable\t of  being converted into a valuable  security\tand.
\nthereby committed an offence punishable under S. 420  I.P.C.
\nFive  other persons were charged along with  the  appellants
\nwith  having committed an offence punishable under S.  120-B
\nread  with  s. 420 of the Indian Penal Code  but  they\twere
\nacquitted.  The appellants were also charged under S. 468 of
\nthe Indian Penal Code but they were acquitted of this.
\nThe  facts  about  which  there can be\tno  dispute  are  as
\nfollows.   The appellant Shankar Sah met the Station  Master
\nof  Sheonarayanpur  Railway  Station on\t May  11,  1960\t and
\nproduced a forwarding note for, booking a consignment of dry
\nchillies  to  Calcutta.\t  A wagon was allotted\tto  him\t and
\nstabled\t in the shed on May 12, 1960.  On the day  following
\nboth  the  appellants  came to the Station  Master  and\t the
\nnecessary  allotment entry was made in the forwarding  note.
\nThe loading was done by the appellants without any help from
\nany  railway  employee\tand  the  appellants  wanted  to  be
\nsupplied  with\trivets after the wagon was loaded  by  them.
\nSuch  supply being given by the Station Master they put\t the
\nrivets on the wagon.  A railway khalasi examined the rivets,
\n825<\/span>
\nsealed the wagon and fixed card labels on both sides of\t the
\nwagon  prepared by the Station Master.\tThe railway  receipt
\nfor  the  goods was made out by the Station  Master  to\t the
\neffect\tthat the consignment was “said to contain” 251\tbags
\nof  dry\t chillies.  The letters L\/U were  endorsed  on\tthe
\nrailway receipt meaning that the responsibility for  loading
\nand unloading of the consignment rested with the  consignor.
\nThere was no facility for weighing the goods at the  station
\nand  a\tnote was made that the weight was as  given  by\t the
\nconsignor.   This  was indicated by the\t endorsement  S.W.A.
\n(sender’s  weight  accepted).  The wagon was attached  to  a
\ngoods train on the, same day and carried forward out of\t the
\nStation on its way to Calcutta.\t There were frequent  check-
\nings  of  the rivets and the seals of the wagon\t during\t the
\nnight of 13th May but on the morning of the 14th the seal on
\none side of the wagon was broken and the seal card lying  on
\nthe  ground.   The wagon was detached and taken to  a  goods
\nshed and checked at about 2 p.m. on 15th May.  It was  found
\nthat  the  wagon contained only 197 bags  of  chaff  (Bhusa)
\ninstead\t of 251 bags of dry chillies.  An entry was made  in
\nthe station diary and a first information report was  lodged
\non  18th May.  The police submitted a charge  sheet  against
\nthe  accused  and  the case proceeded  to  trial  after\t the
\ncommitment   enquiry.\tThe  prosecution  examined   several
\nwitnesses to establish that the appellants had brought straw
\nto the goods shed at Sheonarayanpur in place of chillies and
\nloaded\tthe  wagon therewith.  The Sessions  Judge  did\t not
\naccept the evidence of some of them but relied upon that  of
\nP.W.  8, a cartman who gave testimony to the effect that  he
\nalong with others had loaded straw in the wagon mentioned.
\nThere was evidence before the Sessions Judge that the appel-
\nlants  had obtained a sum of Rs. 5,5001- from one  Murarilal
\nJhunjhunwala  by handing over the railway receipt to him  by
\nrepresenting that they had booked 251 bags of chillies.\t The
\nSessions Judge held that the Station Master had not  checked
\nthe  goods or verified the weight thereof but had  acted  on
\nthe representation of the appellants.  According to him\t the
\nappellants were guilty of an offence under S. 420 read\twith
\ns. 34 I.P.C. and he sentenced them as already mentioned.
\nIn appeal the learned Judge of the High Court after  discus-
\nsing  the evidence felt satisfied that what “was found as  a
\nresult\tof  the checking at 2 p.m. on 15th May\t1960  to  be
\npresent\t in the wagon was nothing but the consignment  which
\nhad   been   originally\t  loaded  by   the   appellants\t  at
\nSheonarayanpur\ton  the\t afternoon of 13th  May\t 1960”.\t  He
\nfurther held that
\n\t      “the representation made by the appellants  to
\n\t      the  Station Master (P.W. 39) both orally\t and
\n\t      in the for-\n<\/p>\n
\t      826<\/span><\/p>\n
\t      warding  note which they had presented to\t him
\n\t      was a false representation and on the strength
\n\t      of  such false representation  the  appellants
\n\t      had  induced the Station Master? to  make\t out
\n\t      for them the railway receipt in respect of 251
\n\t      bags  of dry chillies.  It is manifest that  a
\n\t      valuable\tsecurity such as a  railway  receipt
\n\t      is.  in  respect of 251 bags of  chillies\t had
\n\t      been  delivered  to  the\tappellants  by\t the
\n\t      Station  Master  on  the basis  of  the  false
\n\t      representation which they had made to him both
\n\t      orally and in the forwarding note.”\n<\/p>\n
The  learned  Judge therefore held that the  appellants\t had
\ncommitted  the\toffence\t of  cheating  acting  together\t  in
\npursuance of their common intention.\n<\/p>\n
It  had\t been urged that the appellants were not  guilty  of
\ncheating in as much as the Station Master had written on the
\nrailway receipt that the consignment in question was said to
\nbe 251 bags of dry chillies and thus he could not be said to
\nhave  acted  upon the declaration of  the  appellants  being
\ncorrect.  Similarly with regard to the other endorsement  on
\nthe  railway  receipt  “S.W.A.”\t meaning  “senders’   weight
\naccepted” it was made by the Station Master acting upon\t the
\ndeclaration of the appellants.\n<\/p>\n
Under  s. 41 5 of the Indian Penal Code a person is said  to
\ncheat  when he by deceiving another person  fraudulently  or
\ndishonestly  induces the person so deceived to\tdeliver\t any
\nproperty  to  him, or to consent that he  shall\t retain\t any
\nproperty or intentionally induces the person so deceived  to
\ndo  or omit to do anything which he would not do or omit  if
\nhe  was not so deceived and which act or omission causes  or
\nis  likely to cause damage or harm to that person  in  body,
\nmind,  reputation or property.\tThere can be no\t doubt\tthat
\nthe  appellants had by deceiving the Station Master  induced
\nhim  to deliver a railway receipt which could be used  as  a
\nvaluable security; but assuming that the appellants  thereby
\ninduced\t the Station Master to make out the railway  receipt
\nit  will still have to be shown that the making out  of\t the
\nreceipt was likely to cause damage or harm to the railway or
\nthe Station Master.\n<\/p>\n
We have therefore to examine whether the issue of the  rail-
\nway  receipt  with the endorsements “said to,  contain”\t and
\n“S.W.A.”  were\tlikely to cause any damage to  the  railway.
\nUnder  s.58 of the Indian Railways Act the owner  or  person
\nhaving charge of any goods which are brought upon a  railway
\nfor the purpose of being carried thereon, has to deliver  to
\na  railway  servant appointed in that behalf an\t account  in
\nwriting\t signed by such owner or person and containing\tsuch
\ndescription of the goods as may be
\n827<\/span>
\nsufficient   to\t determine  the\t rate  which   the   railway
\nadministration\tis  entitled to charge in  respect  thereof.
\nThis  section  casts an obligation on the  owner  or  person
\nhaving charge of goods to be carried by a railway to give  a
\ncorrect\t description thereof.  Failure in this respect\tmay,
\nunder  sub-s.  (3)  entitle the\t railway  administration  to
\ncharge in respect of the carriage of the goods at a rate not
\nexceeding  double the hi-best rate which may be in force  at
\nthe time on the railway for any class of goods.\t Under\ts.72
\na person delivering to a railway administration goods to  be
\ncarried\t by railway has to execute a note (forwarding  note)
\nin  which  the\tsender\tor  his\t agent\thas  to\t give\tsuch
\nparticulars in respect thereof as may be required.   Section
\n73  provides  for the general responsibility  of  a  railway
\nadministration as a carrier of animals and goods except from
\nany of the causes specified therein.  But under the  proviso
\nto  the section even in the case of loss,  destruction\tetc.
\nfrom  any of the said causes, the railway administration  is
\nnot relieved of its responsibility for the loss, destruction
\netc.  of  the  goods  unless it\t proves\t that  it  has\tused
\nreasonable foresight and care in the carriage of the  goods.
\nUnder\ts.  74\twhere  goods  are  tendered  to\t a   railway
\nadministration for carriage at a special reduced rate  known
\nas  ‘the owner’s risk rate’ then,  notwithstanding  anything
\ncontained  in section 73, the railway administration is\t not
\nto  be responsible for any loss, destruction,  damage  etc.,
\nfrom  whatever\tcause arising, except upon proof  that\tsuch
\nloss,  damage,\tdestruction etc. was due  to  negligence  or
\nmisconduct oil the part of the railway administration or any
\nof its servants.  Under s.106 a person requested under\ts.58
\nto give an account with respect to any goods and giving\t one
\nwhich  is materially false may be punished with\t fine  which
\nmay extend to Rs. 156 for every quintal or part of a quintal
\nof  the\t goods in addition to any rate or  other  charge  to
\nwhich  the goods may be liable is therefore clear  that\t the
\nrailway\t administration may be liable for loss,\t destruction
\nor  non-delivery of the goods under s.73 if it fails to\t use
\nreasonable  foresight and care in the carriage of  the\tsame
\nand would also be similarly liable even in respect of  goods
\ncarried at special reduced rate if there was negligence\t and
\nmisconduct  on\tits  part  or any  of  its  servants.\tSuch
\nliability  on  the part of the railways arises\twhenever  it
\nissues a railway receipt.  The question therefore arises  as
\nto whether the railway ran any additional risk or  liability
\nin  acting  upon the representation of\tthe  appellants\t and
\nmentioning  in the railway receipt the goods consigned\twere
\nsaid to be 251 bags of chillies when in fact they were\tonly
\n197  bags  of  straw.  There can be little  doubt  that\t the
\nrailway did not run any additional risk.  In case the  goods
\nwere  consumed by fire or even stolen from the wagon due  to
\nany  negligence\t on the part of railway\t administration\t the
\nowner  would have to prove that he had put on rail 251\tbags
\nof
\n828<\/span>
\nchillies.   He\twould also have to prove the weight  of\t the
\nchillies  and  the approximate value thereof.  For  this  he
\nwould have to call evidence to show how and when he acquired
\nthe  goods and the price he paid for them and  exactly\twhat
\nquantity  he  loaded  in  the wagons.\tThere  would  be  no
\npresumption  that the (Foods put in the wagon were  chillies
\nbecause\t the railway did not accept the consignment as\tsuch
\nand described it as 251 bags allegedly containing  chillies.
\nNor  was there any acceptance of the weight of the goods  by
\nthe  railway.  The endorsement “S.W.A.” would  negative\t the
\nplea,  if any, that the weight was accepted by the  railway.
\nThe  endorsement  “L\/U”\t emphasised  that  the\tloading\t and
\nunloading being in charge of the consignor the railway could
\nnot  be\t held  liable  for  any\t negligence  in\t loading  or
\nunloading.\n<\/p>\n
In this connection reference may be made to the Goods Tariff
\nRules.\tRule 15 of Part 1 of the Goods Tariff shows that :\n<\/p>\n
\t      “The weight, description and classification of
\n\t      goods  and quotation of rates as given in\t the
\n\t      railway receipt and forwarding note are merely
\n\t      inserted\tfor  the purpose of  estimating\t the
\n\t      railway  charges and the railway reserves\t the
\n\t      right    of   re-measurement,    re-weighment,
\n\t      reclassification\tof goods and  re-calculation
\n\t      of  rates and other charges and correction  of
\n\t      any  other errors at the place of\t destination
\n\t      and  of  collecting any amount that  may\thave
\n\t      been omitted or undercharged.  No admission is
\n\t      conveyed by a railway receipt that the  weight
\n\t      as shown therein has been received or that the
\n\t      description  of  goods  as  furnished  by\t the
\n\t      consignor is correct.”\n<\/p><\/blockquote>\n
Under  Rule 22(1) every consignment of goods when handed  to
\nthe railway for despatch must be accompanied by a forwarding
\nnote  which must be signed by the sender or  his  authorised
\nagent  and  must  contain a declaration\t of  the  weight  in
\naccordance  with  s.58\tof  the\t Indian\t Railways  Act\t and
\ndestination  of the goods consigned.  Under Rule 24(2) if  a
\nmaterially  false account is delivered with respect  to\t the
\ndescription  of any goods, the person who gives\t such  false
\naccount, and if he is not the owner, the owner also, is,  on
\nconviction  by\ta  Magistrate, liable to a  fine  which\t may
\nextend\tto  Rs.\t 50\/- per maund or part of a  maund  of\t the
\ngoods,\tand  such fine will be in addition to  the  rate  to
\nwhich the goods may be liable.\n<\/p>\n
In  Dominion  of India v. Firm Museram Kishunprasad(l)\ta  a
\nrailway\t receipt was issued to the consignor qualified\twith
\nthe statement that the wagon was said to contain 255 bags of
\ncoconuts.    As\t  only\t251  bags  were\t received   at\t the
\ndestination, the plaintiff made a claim for the price of the
\n4 bags of coconuts by
\n(1)  AIR. 1950 Nag. 85.\n<\/p>\n
829<\/span><\/p>\n
way  of damages.  It was held by the Nagpur High Court\tthat
\nthere  was no proof that 255 bags had in fact  been  loaded.
\nReferring to R. 22 of the Goods Tariff General Rules it\t was
\nsaid  that  the\t receipt issued\t “qualified  the  number  by
\nstating\t that the wagon was ‘said to contain’ 255  bags\t and
\nthe  number was mentioned merely to calculate the  freight.”
\nReference  was\talso  made  to\tRule  15  under\t which\t the
\nmentioning  of\tthe weight in the railway  receipt  did\t not
\namount\tto an admission of the correctness of the  statement
\nand  according to Nagpur High Court “this rule applies\twith
\neven  more  vigour  where the railway  receipt\tin  addition
\ncontains the ‘said to contain’ remark.”\n<\/p>\n
In  Union  of India v. S.P.L. Lekhu Reddiar<\/a>(l) a  claim\t was
\nmade against the railway for short delivery of 11 bags.\t The
\nrailway\t receipt showed that the wagon was said\t to  contain
\n200  bags  of white toor.  It was urged there  that  as\t the
\nseals\twere   intact  at  the\tend  of\t the   journey\t the
\nresponsibility\tfor the shortage must lie with the  railway.
\nIt  was\t pointed out that this would be so  if\tthe  railway
\nstaff  had loaded the goods after verifying them and in\t the
\ncircumstances  of  the case, the railway could not  be\theld
\nresponsible  for any shortage so long as there was no  proof
\nof  tampering  with the seals.\tThe decision in\t the  Nagpur
\ncase  was  followed  in\t Madras and it\twas  held  that\t the
\nendorsement to the effect that the consignment was ‘said  to
\ncontain’  a  certain number of bags did not  amount  to\t any
\nadmission on the part of the railway administration that the
\nsaid number of bags had in fact been loaded.
\nIt  appears to us that the false representation made by\t the
\nappellants  in obtaining the railway receipt in the form  in
\nwhich it was issued did not cast any additional liability on
\nthe  railway and the issue of the railway receipt  therefore
\nwas  not likely to cause any damage or harm to the  railway.
\nNo  question of cheating the railway or the  Station  Master
\ntherefore arose in this case and the appeal must be allowed.
\nThe appellants are directed to be set at liberty.  The fine,
\nif paid, must be refunded.\n<\/p>\n
Y.P.\t\t\t   Appeal allowed.\n(1) A.I.R. 1956 Madras 176.\n830<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hari Sao And Anr vs State Of Bihar on 15 October, 1969 Equivalent citations: 1970 AIR 843, 1970 SCR (2) 823 Author: G Mitter Bench: Mitter, G.K. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-81987","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHari Sao And Anr vs State Of Bihar on 15 October, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hari-sao-and-anr-vs-state-of-bihar-on-15-october-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Sao And Anr vs State Of Bihar on 15 October, 1969 - 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