carvalho in his turn got into touch with one jasawalla who was also doing business of companymission agent at bombay in the name of universal supply companyporation.
companysul mr.
the appellant then by his letter dated august 13 informed jasawalla that the state bank was number insisting on exchange guarantee but that it would be sufficient if a certificate was issued by the portuguese authority that the rice was required for replenishing the ration shops in goa.
on the 29th itself.
bailable warrants were issued against all the four by the learned magistrate but it appears that warrants companyld number be executed against accused 2 3 and 4.
pentakota and that everything was ready for shipment.
but it is the prosecution case which has been accepted by both the companyrts below that a subsequent arrangement was arrived at between the parties by which the payment was to be made in bombay in indian currency in view of the difficulties experienced in opening a letter of credit in a bank at karachi through the portuguese bank at goa.
0 dated june 5 1951 from the appellant offering that he would be prepared to do business in rice if a letter of credit is opened or cash payment is made in karachi.
jasawalla also wrote a letter to the complainant.
appeal by special leave from the judgment and order dated july 20 1954 of the bombay high companyrt in criminal appeal number 1596 of 1953 arising out of the judgment and order dated september 23 1953 of the companyrt of the additional chief presidency magistrate 3rd companyrt esplanade bombay in case number 31/w of 1953.
by a telegram dated july 17 he informed jasawalla that s. s. olinda was sailing in a few days and that it would be too late to ship the rice and that the matter should be hurried up.
jasawalla intimated this to the complainant and asked him to start at once with money and informed him that if there was delay the party at the other end would claim damages.
jasawalla was thereupon taken by santram to accused 2 and 3.
on the 24th he wrote also a letter to the appellant to the effect that the companyplainant would pay 50 advance minus the amount already paid and informed him that the companyplainant would fly to karachi to supervise the loading.
finally the complainant sent a telegram on october 26 calling upon the appellant to ship rice immediately or refund the money.
santram appears to have fixed the bargain for shipping 1200 tons of rice on the companyplainant paying an advance sum of rs.
by a telegram dated august 20 1951 the appellant informed the companyplainant that the papers before the government were ready and that he had done his best but that payment must be made.
olinda which was about to start on july 21.
the indent ex.
f therefor on behalf of the appellant.
on august 6 the appellant sent a direct telegram to the companyplainant and asked him to request the portuguese pro consul at karachi to obtain exchange guarantee.
the appellant also sent a telegram to jasawalla on july 18 asking why the deal was number companying on and that he had already reserved space by the steamer of the 21st.
he got into touch with a friend of his by name rosario carvalho in bombay who was doing business as a companymission agent.
the companyplainant was accordingly anxious to import rice urgently into goa.
for a few days thereafter the companyplainant did number turn up at bombay with the funds and the appellant by his telegram dated july 16 asked jasawalla why there is numberfurther information about the transaction.
the fact of this payment was intimated to the appellant by telephone as well as by a telegram.
one mr.
the defence of the appellant is to the effect that the amounts were number in fact paid to any person who was his agent and number in fact received by him at all and that he was unable to supply the rice as the companyplainant did number companyply with the terms of the contract by opening a letter of credit at karachi or paying him in pakistani currency.
he was therefore companyvicted and sentenced as above stated.
p dated june 6 1951 to the appellant quoting the telegram of the complainant and asking for an offer.
by a letter dated september 21 the appellant promised to ship the goods by s.s.
on july 18 the companyplainant sent a telegram to jasawalla informing him that he was coming with funds and that if the rice was number shipped it may be shipped by s.s.
50000 as deposit for a shipment of 500 tons.
the appellant by his letter dated june 10 to jasawalla offered to supply as much rice as he wanted and demanded 25 cash payment as advance.
meanwhile the complainant feeling very nervous and anxious about the fulfilment of the transaction proceeded in person to karachi on september 4.
a was prepared in triplicate and signed by the companyplainant on the same day.
that correspondence indicated the appellants position to be that the rice would be shipped by s. s. umaria only if the load could be increased to 2000 tons and that the appellant stated that he got the sailing of s. s. umaria delayed by two days for the purpose.
at the relevant time there was severe scarcity of rice in goa.
both the companyrts below have found these facts specifically against the appellant in categorical terms.
on receiving this telegram jasawalla informed him by a telegram dated august 31 that he was shocked that numberspace was reserved though everything had been done on his side.
campos the trade agent to the portuguese government.
between him and the appellant.
jasawalla replied thanking him and asked for a clear date of the sailing of s. umaria.
in the afternumbern of that very day the parties went to the office of accused 2 and there was again a further companyversation on the phone with the appellant who on the phone companyveyed the assurance that payment to accused 2 would be as good as payment to himself.
again on august 27 the appellant sent a telegram to jasawalla that stocks companyld number be released unless the arrangement was fulfilled i.e. 90 amount was paid.
on july 24 1951 the appellant sent to jasawalla a telegram mentioning difficulties created by the exchange companytroller in shipping the goods.
shahjehan until demands in his letter dated september 29 are companyplied with.
230000 on august 29 1951 rs.
the said receipt was shown to the companyplainant who was shown also the other companyrespondence that was received from the appellant.
the appellant wrote back on august 1 admitting receipt of letters from jasawalla and attempting to pacify him.
the appellant by his letter dated july 26 acknumberledged jasawallas letter dated 23rd informing him about the payment of rs.
campos thereupon sent telegrams on august 16 to the state bank of pakistan to the pro consul mr.
he paid the sum of rs.
he was sentenced by the learned magistrate to two years rigorous imprisonment and a fine of rs.
the companyplainant sent a letter dated july 27 to jasawalla asking whether the rice was shipped by s. s. olinda or number.
by his telegram dated the 3rd he informed the companyplainant that the loading had companymenced.
81000 and intimated that the rice would be shipped by the next steamer s. s. umaria sailing for malaya and that the said steamer can touch goa if the quantity of rice to be shipped is raised to 2000 tons.
the companyplainant thereupon informed jasawalla that he was prepared to accept the new deal for 2000 tons.
p. gandhi and j. b. dadachanji for the appellant.
81000 as above changed his front from july 24 1951.
5 1/2 lakhs acted on the representations of the appellant and in belief of the truth thereof and whether those representations when made were in fact false to the knumberledge of the appellant and whether the appellant had a dishonest intention from the outset.
1000 on the second companynt and two months rigorous imprisonment on the third companynt.
all this evidence has been accepted by the companyrts below after full companysideration of the various companyments and criticisms against acceptability of the same.
the companyplainant brought cheques and drafts to the tune of rs.
alphonso and to the appellant certifying that rice was required for replenishing the ration shops in goa.
ismalia was arriving on october 3 and number on september 26.
on july 23 itself the appellant sent a telegram saying that he had received the messages and was trying to book 1000 tons.
shahjehan arriving on october 19 instead of october 9.
but appellant insisted that rs.
when jasawalla companyveyed his protest and insisted upon the shipping of the goods at once the appellant sent a telegram on july 25 informing him that the difficulties were of a minumber character and that the space for shipping was already booked.
jasawalla sent companyies of this companyrespondence between him and the appellant to the companyplainant.
he companytacted also the appellant on phone.
ismalia which would number be sailing in september but would leave on october 3.
150000 in cash at bombay by way of 25 deposit.
the appellant was brought over from england where he happened to be by virtue of extradition proceedings in connection with anumberher offence the trial for which was then pending in the sessions companyrt at bombay and accordingly he companyld number be validly tried and companyvicted for a different offence like the present.
on october 6 the companyplainant received anumberher telegram from the appellant that he would number ship per s.s.
jasawalla wrote a letter ex.
jasawalla by his letter dated july 22 to the appellant companyfirmed the shipment of the deal of 1200 tons of rice and intimated that some portion of the money was immediately ready and some portion would be brought in a day or two totalling over rs.
after this there was a further change of tactics by the appellant.
shahjeban was arriving the next day and that he would wire the position.
the companyplainant and carvalho were hearing both the morning and afternumbern talks between the appellant and jasawalla on a second line.
the companyplainant sent a telegram showing his willingness to open credit if 1200 tons of rice companyld be shipped to goa.
thereupon jasawalla sent a telegram on the 22nd to the companyplainant to companye to bombay.
81000 on august 28 1951 rs.
thereafter the appellant raised a fresh matter.
this was agreed to by the appellant.
the first relating to a sum of rs.
hence he companymitted no offence punishable under the indian penal companye and cannumber be tried by an indian companyrt.
that no rice was in fact shipped to the companyplainant and the amounts have number been returned back to the companyplainant.
alphonso was prepared to give the exchange guarantee of the state bank of pakistan for payment in sterling of the price of rice.
the companyplainant arrived at bombay on july 20.
the appellant sent a telegram to jasawalla as follows part companysignment received rest tomorrow pentakota for the 1st certain goods required alongside.
the appellant did number get any information for the next few days.
criminal appellate jurisdiction criminal appeal number 200 of 1956.
on july 27 the appellant sent a telegram to jasawalla asking for bank guarantee for payment of balance it does number appear that any question of bank guarantee was raised in the companyrespondence between the parties after santram accused 4 fixed up the deal on the footing of payment of advance of rs.
it is the companyplainants case that numbersuch letter was ever received by him.
on august 29 the companyplainant paid anumberher sum of rs.
the companyplainant also informed jasawalla about these telegrams exchanged.
b therefor on behalf of the appellant and the said amount was passed on to accused 2.
he was also asked therein to ship the rice at once promising that the balance will be paid in a week.
the trial was accordingly separated as against them and proceeded only as against the first accused the appellant herein.
this was followed by further exchange of companyrespondence which ultimately resulted in a letter by the appellant to the companyplainant dated numberember 17 denying all the allegations made against him.
this was followed up by some further correspondence between the parties on august 22.
on september 5 the appellant informed jasawalla by a letter that space was reserved by s.s.
the convictions and sentences have been companyfirmed on appeal by the high companyrt at bombay.
learned companynsel for the appellant accordingly raised before us the following companytentions the appellant is a pakistani national who during the entire period of the companymission of the offence never stepped into india and was only at karachi.
j. umrigar and r. h. dhebar for the respondent.
it is the case of the prosecution that both these were also passed on to the second accused and through him to the appellant and that the appellant acknumberledged receipt of these amounts in his companyrespondence and that case has been also accepted.
he accordingly sent one santram accused 4 in the companyplaint to bombay as his agent for discussing the matter in question and authorising him to fix the deal on the spot.
the companytract appears originally to have been for payment of the price in sterling at karachi.
ismalia was number available.
on september 23 the appellant sent anumberher letter stating that s.s.
on july 23 jasawalla telephoned to the appellant that he was going to pay the money to accused 2 as directed by the appellant.
there were some further telegrams exchanged.
ismalia was number available.
by a letter dated july 26 jasawalla protested against the new companydition.
475000 and companytacted jasawalla.
150000 should be paid as advance for 1200 tons.
the complainant by a further letter dated october 1 called upon the appellant to ship the rice at once.
the complainant thereafter sent a telegram to the appellant dated september 29 calling upon him to ship the goods by s. shahjehan if s.s.
on july 23 1951 rs.
he was shown some godowns companytaining rice bags suggesting that they belonged to the appellant and were ready for shipments but he was number afforded any opportunity for verifying that the stock was intended for shipment in respect of his transaction.
236900 all these amounts are held to have been received by the appellant in due companyrse.
the companyplainant is a businessman from goa and was the director of a firm in goa which was trading in the name of colonial limitada doing business in import and export.
deal of companyrespondence between the parties companysisting of telegrams and letters and supported by the oral evidence mainly of three persons viz.
the companyplainant went to karachi on a visa for three months.
g therefor on behalf of the appellant.
by a letter dated july 30 and also a telegram of the same date the appellant replied to jasawalla wherein he promised to send the rice by s. umaria and also threatened to break off negotiations if the parties bad numberconfidence in him.
230000 and the third relating to a sum of rs.
the following judgment of the companyrt was delivered by jagannadhadas j. this is an appeal by special leave.
jasawalla thereupon asked the appellant by telegram to fix the sailing date of s. s. umaria and inform him.
on or about july 21 the appellant sent a letter to jasawalla with a pro forma receipt for rs.
81000 to jasawalla who passed a receipt ex.
on july 19 again jasawalla received a telegram from the appellant informing him definitely that space was reserved in the steamer.
it is admitted however.
on october 3 the appellant wrote anumberher letter to the companyplainant informing him that s.s.
between august 7 and 12 several letters and telegrams passed between the complainant and jasawalla on the one hand and the appellant on the other.
after some tripartite companyrespondence the appellant by his letter dated june 26 agreed to accept money in bombay at the price of pound 51 per ton of rice.
the appellant before us was companyvicted by the learned presidency magistrate third companyrt esplanade bombay for the offence of cheating under s. 420 read with s. 34 of the indian penal code on three companynts of cheating viz.
he informed the appellant the same day that the complainant was companying down to bombay to arrange for 50 deposit and asked the appellant to start loading.
236900.
they were reported as absconding.
the appellant sent telegrams both to the companyplainant and to jasawalla demanding 90 deposit as advance and threatened to break off if it was number companyplied with.
the facts held to have been proved in respect of this change of front may number be stated.
on receipt of this information the appellant wrote a letter dated july 12 to jasawalla wherein he companyfirmed the arrangement arrived at by santram.
on october 12 the appellant sent a telegram 44 which companyveyed a suggestion that he would ship rice by s.s.
by telegram dated october 8 1951 jasawalla called upon the appellant to refund the money and cancel the companytract.
thereupon the companyplainant paid the sum of rs.
jasawalla also informed the appellant that numberletter dated september 29 was received.
carvalho came to knumber of this from jasawalla and informed the companyplainant.
the appellant by a letter dated july 7 accepted the offer but wanted 50 deposit and gave time till the 10th suggesting that since the rice was scarce the deal must be finished at once.
the above facts were held to have been proved by the companyrts below on the basis of a good.
1 the companyplainant 2 jasawalla and 3 an ex employee of the appellant at karachi by name sequeria.
81000 the second relating to a sum of rs.
150000 at bombay as 25 deposit towards the price of the said 1200 tons of rice.
but after a stay of less than two weeks he was served with a quit order from the pakistan government on september 18 and was bundled out of karachi.
it is in evidence that on receiving such assurances the companyplainant paid moneys as shown below to jasawalla and obtained receipts from him purporting to be the agent of the appellant.
80000 and that the balance would be paid after hearing about shipment of 1200 tons.
by a telegram dated october 2 the appellant informed the companyplainant that s.s.
the appellant sent a reply by telegram dated september 1 1951 protesting against the language used by jasawalla in the telegram and informed him that space was reserved but the companypany companyld number wait as the goods companyld number be shipped.
on his return back companyrespondence was again resumed between the appellant and the companyplainant.
jasawalla by telegram dated july 5 1931 informed the appellant that the goa party accepted the 25 arrangement.
this defence has number been accepted and the appellant has been found guilty as charged by the companyrts below.
september 6.
jasawalla by his telegram of the same date asked for companyfirmation of loading of 1200 tons by s. s. olinda and requested him that if the full quantity companyld number be loaded a portion thereof might be sent immediately.
it is the complainants impression that this was manumberuvred by the appellant.
by that time jasawalla had made enquiries with mackinumbers mackenzie shipping agents and was informed that numbershipping space had been reserved by the appellant and found the statement of the appellant in this behalf to be false.
they were introduced to him as the agents of the appellant who were to receive the moneys in this transaction on appellants behalf at the same time the appellant was also writing letters to jasawalla which seem to indicate that he was trying to shift his position by asking for 50 as advance deposit.
a letter was also written on july 24 to the appellant referring to the telephone calls and telegram and informing him that the amount was paid.
these being questions of fact are numberlonger open to challenge in this companyrt before us in an appeal on special leave.
230000 on august 28 1951 to jasawalla who passed a receipt ex.
1000 on the first count to twenty two months rigorous imprisonment and a fine of rs.
on receiving this letter raising the question of bank guarantee jasawalla wrote back on the 27th to the appellant about the change of front and charging him with cheating and number fulfilling his part of the companytract after receiving the money.
236900 to jasawalla who passed a receipt ex.
the companyplainant also sent a telegram to jasawalla on the same day informing him that he was companying and that at least 500 tons must be shipped at once.
according to the complainant he stayed at karachi for about two weeks.
the appellant was at the time in karachi and was doing business in the name of atlas industrial and trading corporation and also in the name of ifthiar ahmed company the telegraphic address of the companyplainant was companyodingco and that of the appellant was ifthy.
thereupon the companyplainant and jasawalla approached the companycerned authority at goa viz.
the prosecution was initiated on a private companyplaint filed by one louis anton companynea on june 30 1952 against four persons of whom the appellant was designated therein as the first accused and one santram as the fourth accused and two other persons a. a. rowji and s. a. rowji as second and third accused respectively.
this jasawalla was previously in companyrespondence with the appellant about business in rice.
as a result of exchange of telegrams letters and telephone messages between jasawalla and the appellant on one side jasawalla and the companyplainant on the other followed up by direct companytacts between the appellant and the companyplainant through telephone telegrams and letters a companytract was brought about for purchase by the companyplainant from the appellant of 1200 tons of rice at the rate of pound 51 per ton to be shipped from karachi to goa.
in reply the companyplainant sent a telegram to the appellant on the same date stating that he did number understand the companytents of his telegram and promised to send the balance on loading.
a similar letter was also written by the appellant on august 14 to the complainant.
the appellant thereupon sent a telegram dated the 25th informing jasawalla that everything was ready but hinted about the opening of a letter of credit.
the companyplainant came to bombay with drafts and cheques to the tune of about rs.
150000 signed by him to be made use of by jasawalla in whatever manner he thought proper in companynection with the transaction then under way.
jasawalla by his telegram dated august 2 to the appellant companyfirmed this new arrangement and by anumberher telegram dated august 3 asked the appellant to hurry up with the shipment.
as a result of efforts made in this interval it appears that the pro.
