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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

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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

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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

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             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.,

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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

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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