judgement:
Civil Appeal No. 212 of 1959.
Appeal from the judgment and decree dated March 1, 1957, of the calcutta High Court in appeal from original Decree No. 71 of 1954.
G. section Pathak and Naunit Lal, for the appellants.
A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent.
October 13.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by a certificate granted by the Calcutta High Court arises out of a suit filed by the three appellants against the respondent to recover Rs. 83,640/ .
The three appellants are respectively the Firm Radhakrishan Shivdutt Rai which carries on business at Banaras and RamKumar Lal for himself and as karta of his joint family as well as Madan Gopal for himself and as karta of his joint family, the latter two being 83 the partners in the first mentioned Firm Radhakrishna Sivadutta Rai; for convenience we will refer to the partnership firm hereafter as the appellant.
The respondent Tayeballi Dawoodbhai is a partnership firm which carries on business at Calcutta.
The appellant 's case was that the appellant and the respondent had entered into a contract in the first instance on December 18, 1980, through brokers named T. N. Mehrotra & co.
,Calcutta.
This contract was later confirmed by two letters written respectively on January 3 and 15, 1951, by the appellant to the respondent and replied to by the. respondent.
By this contract the respondent agreed to sell 1000 bales of Banaras Hemp particulars of which were set out in the plaint.
According to the appellant, by a letter written on March 14, 1951, the appellant in part performance of the said contract accepted delivery of 110 bales of Banaras Hemp No. 1 and 50 bales of Banaras Hemp No. 2; this delivery was Made by the respondent to L. N. Poddar & Co., who acted as the agent of the appellant and Paid the price of the said 160 bales.
In they transaction the respondent realised Rs. 3,840 from the said I,.
N. Poddar &; Co. in excess of the actual price of the goods delivered to the said company.
Inspite of the repeated demands made by the appellant the respondent failed to deliver the balance of the goods contracted for and thus committed breach of the contract.
That is how the appellant claimed Rs.(9,80(j as difference between the market rate on March 31, 1951, and the contract rate of the balance deliverable under the contract in suit.
This amount was claimed as damages for the breach of contract.
In addition an amount of Rs. 3,840 was claimed as having been paid in excess of tho value of 160 bales delivered to L. N. Poddar & Co., on behalf of the appellant.
This claim was resisted by the respondent on several grounds.
The principal contention urged by the respondent, however, was that in relation to 84 the contract in suit the appellant had acted as agent for its disclosed principal Messrs Khaitan and Sons Ltd., and as such it was not entitled to bring the present suit.
The respondent further alleged that the said disclosed principal Messrs. Khaitan and J. Sons had settled all their rights and loams under the suit contract with their agent and so the present claim for damages was not maintainable.
In regard to the claim for Rs. 3,840 tho respondent pleaded that the appellant 's case was untrue.
Several other pleas were also raised but with the said pleas we are not concerned in the present appeal.
Mr. Justice Bose who tried the suit framed twelve issues.
On the principal point in controversy between the parties the learned judge found that the appellant had entered into the contract with the respondent on its own account and not on account of the disclosed principal as alleged by the respondent.
According to the learned judge the reference to Messrs. Khaitan and Sons Ltd., made in the bought and sold notes on which the respondent 's plea was based had been inserted by the brokers "by mistake or due to some misconception.
" The learned judge also found that the respondent had committed a breach of the contract as alleged by the appellant.
The appellant 's case with regard to the excess payment of Rs. 3,840 made by L. N. Poddar & co. was, however, held not to have been proved.
In the result a decree was passed in favour of the appellant for Rs. 79,800 along with interest as stipulated in the decree.
Against this decree the respondent preferred an appeal; and the main point which was urged on its behalf was directed against the finding of the trial judge that the contract had been entered into by the appellant for itself and not on account of the disclosed principal.
This contention was based in the Court of Appeal, as in the trial court, on the bought and sold notes; and it was urged that 85 the bought and sold notes clearly showed that the appellant had entered into the contract on account of the disclosed principal Messrs. Khaitan and Sons Ltd.
Before the Appellate Court the respondent 's case was that the said bought and sold notes constituted the terms.
Of the contract and no other evidence was relevant and admissible in order to determine the said terms.
Das Gupta, J., upheld this.
In his opinion the bought and sold notes issued by the brokers Constituted the sole basis for the terms.
Of the contract and the two letters subsequently written on January 3 and 15, 1951, were inadmissible and irrelevant for the purpose of determining the said terms of the contract.
Tho learned judge, however, considered tho matter also on the alternative basis.
that the said letters could be considered for ascertaining the terms.
Of the contract and came to the conclusion that can reading the said letters and the bought and sold notes together the result was the same, namely, that the contract had been entered into by the appellant on behalf of the disclosed principal.
Bachawat, J., differed from Das Gupta, J., on the question about the relevance and admissibility of the two subsequent letters.
According to him the two bought and sold notes.
and the two letters between them constituted the terms of the contract.
He was inclined to take the view that the letters could not be regarded as inadmissible or irrelevant.
Reading the four documents together the learned judge.
however, agreed with the conclusion alternatively recorded by Das Gupta, J., and held that the four documents supported the respondent 's plea that the appellant had entered into the contract on behalf of the disclosed principal.
Both the learned judges agreed in holding that there was no evidence to support the appellants plea that the reference to the principal made in the bought and sold notes was a result of any mistake.
On these findings the decree passed by the trial court was reversed and the appellant 's suit Was ordered to be dismissed.
86 In regard to the costs, however, the Appellante Could took the view that the point raised before the Appellate Court about the effect of the bought and field notes had not been specifically mooted before the trial court and that several other pleas raised by the respondent were found by the trial court to be false and so the proper older as to costs would be that each party should bear its costs throughout.
After this judgement was delivered the appellant applied for and obtained a certificate from the High Court and it is with the said certificate that the present appeal has been brought before this Court.
On its behalf Mr. Pathak has strenuously contended that the Appellate Court was in error in coming to the conclusion that the contracts in suit had been entered into by the appellant on behalf of the disclosed principal Messrs. Khaitan & Sons Ltd., Banaras.
For the purpose of deciding this point we propose to assume in favour of the appellant that the terms of the contract may be gathered from the two bought and sold notes on which the respondent relies as well as the two subsequent letters on which the appellant relies.
It would be convenient at this stage to set out the said documents.
We will first refer to the brokers ' notes and the confirmation slips in respect thereon.
This is how the brokers ' notes read: "T. N. Mehrotra and Co. No. 377 Hemp, Oil and Oil Seedh Pollock House Brokers.
(3rd Floor) 28 A, Pollock Street.
Any dispute in connection with this deal is subject to Arbitration by Bengal Chamber of Commerce.
Calcutta, 18 12 1950.
87 Radhakrishna Sivadutta Rai, A/c Khetan and Sons Ltd., Shewpur, Banaras.
Dear Sirs, We confirm having purchased on your account and risk under noted goods from Messrs. Tayeballi Dawoodbhai, 20, Zakaria Street, Calcutta.
Commodity: 500 (five hundred) bales of Banaras No. 1 only with Agmark Jan/March '51 at K. P. Docks @ Rs. 165 per bale of 400 lbs.
each on receipt of the goods.
Yours faithfully, For T. N. Mehrotra and Company, Sd.
T. N. Mehrotra.
Sales Tax number should be furnished by the Buyers otherwise to be charged." "T. N. Mehrotra and Co. No. 378 Hemp, oil and oil Seeds Pollock House Brokers (3rd Floor) Bank 4718 29 A Pollock street Tel: B.K. 1914 Calcutta, 18 12 50.
Any dispute in connection with this deal is subject to arbitration by Bengal Chamber of Commerce.
To: M/s. Tayeballi Dawoodbhai, 20, Zakaria Street, Calcutta.
Dear Sirs, We confirm having sold on your account and risk, the under noted goods, to M/s. Radakrishan Shiv Dutt Rai with A. G. Mark.
A/c Khetan and Sons Ltd., Shewpur, Banaras.
Commodity: (500) Five hundred Bales of Banaras No. 1 only with A. G. Mark.
88 Delivery: Jan./March 1951 at K. P. Dock.
Price: @ Rs. 165 per bale of 400 Ibs.
Terms of Payment on receipt of goods.
Brokerage 0 8 O per bale.
Sales Tax number should be finished by the buyer otherwise to be charged.
Yours faithfully, For T. N. Mehrotra & Co., Sd.
T. N. Mehrotra "To M/s. T. N. Mehrotra & Co., Calcutta.
We acknowledge receipt of your purchase confirmation memo No. 377 dated 18 12 50.
Signature: Gopal Lal Gupta For Radhakrishna Shivadutta Rai." "To M/s. T. N. Mehrotra & Co., Calcutta.
We acknowledge receipt of your purchase confirmation memo.
No. 378 dated 18 12 50.
Signature: Gopal Lal Gupta For Radhakrishna Sivadutt Rai".
The said confirmation slips were signed by Gopal Lal Gupta for the firm of Radhakrishna Shivdutt Rai.
" After the said notes were sent by the brokers to the respective parties Gopal Lal Gupta on behalf of the appellant wrote a letter to the respondent on January 3, 1951, and on January 15.
1951 the respondent wrote a letter to the appellant.
These letters read at follows: "Messrs. Tayeballi Dawoodbhai, 3 1 51. 20, Zakaria Street, Calcutta.
Dear sirs, We have boughS from you one thousand bales of Banaras Hemp through Messrs. T. N. Mehrotra & Co., 28 A, Pollock Street, Calcutta, on the following terms: 89 1. 500 (Five hundred) bales Banaras No. 1 with agmark @ Rs. 166 (one hundred and sixtyfive) per bale of about 400 lbs.
delivery K. P. Docks during January/March 1951.
2. 500 (Five hundred) bales Banaras No. II with agmark @ Rs. 145 (one hundred and fortyfive) per bale of about 400 lbs.
delivery E. P. Docks during January/March 1951.
Please note and confirm.
Yours faithfully, for Radhakrishna Shivdutt Rai Sd.
Gopal Lal Gupta." "Tayoballi Dawoodbhai 20, Zakaria Street, Registered.
Calcutta 1.
Calcutta, 15th January, 1951.
Messrs. Radhakrishna Shivadutt Rai, Banaras.
Dear Sirs, We confirm having sold to you through Messrs. T. N. Mehrotra & Co., Calcutta, 1000 (one thousand) bales of Banaras Hemp as follows: (i) 500 (Five hundred) bales Banaras Hemp No. I with Agmark at Rs. 165 per bale of about 400 Ibs.
delivery K. P. Docks during January/March 1951.
(ii) 500 (Five hundred) bales Banaras Hemp No. II with Agmark at Rs. 145 per bale of about 400 lbs.
K. P. Docks delivery during January/March 1951.
This confirms your letter of 3rd instant.
Yours faithfully, for Tayeballi Dawoodbhai.
x x Partner.
Copy to Messrs. T. N. Mehrotra & Co., Calcutta, and to Gopinath Mehrotra, Banaras." Mr. Pathak contends that in construing the effect of the relevant documents we should not 90 attach any importance to the reference to Khaitan & Sons made in the bought and sold notes for the simple reason that the said reference is the result of a mistake or misconception on the part of the brokers.
In that connection he contended that the J. finding recorded by the trial court on the issue of mistake should be accepted by us and not the finding made by the/ Appellate court.
We are not impressed by this argument.
In regard to these notes we have the evidence of Trilokinath and Gopinath on behalf of the brokers which negatives the theory of mistake or misconception.
Trilokinath has stated on oath that when he got the offer from the respondent he telephoned to his brother Gopinath who is a broker in respect of hemp of the firm of Sewnath Gopinath and he told him about the offer.
Gopinath then informed Trilokinath that the offer was closed either on the 16th or on the morning of the 17th.
This information was received by Trilokinath from Gopinath on the telephone.
Trilokinath was then asked about the information that his brother gave him, and he stated that his brother told him that the offer which he had communicated to him in respect of 1000 bales at Rs. 165 and.
Rs. 145 had been sold by him to Khaitan Sons & Co., Fibre Ltd. He also added that he received another message from his brother either on the 18th or on the night of the 17th to prepare a contract so that it will be Khaitan & Sons through the appellant; Thus, it is clear that the evidence of Trilokinath, if believed, clearly shows that there could be no mistake or misappreciation on the part of the brokers, when the notes referred to Khaitan & Sons as principal in respect of the transaction.
Gopinath substantially corroborated the evidence given by Trilokinath.
He stated that when he got the offer from his brother Trilokinath he went to Deokinandan who was working for Khaitan & Sons and it was after discussion with Deokinandan thatthe souda was closed as one on behalf of Khaitan & Sons.
Having thus closed this 91 contract with Deokinandan, who represented the principal Khaitan & Sons, Gopinath told Trilokinath to close the offer and asked him to prepare the note showing that the appellant was acting as agent for the disclosed principal Khaitan & Sons.
Reading the evidence of the two brothers who worked as brokers in respect of the transaction in suit it is clear that any possibility of a mistake or misappreciation is wholly excluded.
On behalf of the appellant Gopal Lal Gupta has given evidence.
He attempted to explain away the fact that he did not protest against, or object to, the insertion of the name of Khaitan & Sons in the notes by suggesting that when he signed the confirmation slips after receiving the notes he had not noticed the reference to Khaitan & Sons.
His case was that the purchase had been made by the appellant for itself and not for any other firm, and the suggestion he made was that if he had noticed that the notes had made reference to Khaitan & Sons he would either have insisted upon the said name being delete(l or would not have concluded the contract; but when his statement that he did not notice the reference to Khaitan & Sons was tested in cross examination Gopal Lal was shaken, and he had to admit that when he signed the confirmation slip he may have noticed the reference to Khaitan & Sons but he did not read the document attentively.
He was, however, forced to concede that he had gone through the note before he signed the confirmation slip.
It was under stress of cross examination that Gopal Lal incidentally mentioned that the reference to Khaitan & Sons may have been made by mistake.
It is obvious that Gopal Lal 's evidence which otherwiee suffers from the infirmity that it is full of contradictions cannot be accepted on the question of mistake because his explanation about his conduct in signing the confirmation slips considered by itself is wholly unsatisfactory.
Therefore, in our opinion, the Appellate Court was fully justified in 92 reversing the finding of the trial court on this point and in coming to the conclusion that the reference to Khaitan & Sons which the notes made was no the result of any mistake or misconception In this connection it may be relevant to refer to the attitude adopted by the appellant when the dispute arising between the parties in the present contract had gone before the Bengal Chamber of Commerce for adjudication.
In those proceedings the respondent had raised the same plea that it has raised in the present suit.
It was urged on its behalf that the appellant was not entitled to make ally claim on the contract because it had entered into the contract on behalf of a disclosed principal and on its account.
Apparently that plea appears to have been accepted and the arbitration proceedings therefore ended as being without jurisdiction.
In meeting the plea raised by the respondent it is significant that the appellant thought it fit to urge that the respondent 's allegation that the appellant was the agent of one Khaitan & Co. was not correct and that there is no firm or company known as Khaitan & Co. Or Khaitan & Sons, Ltd., or Khaitan & Sons in Shewpur, Banaras.
The appellant therefore pleaded that the jurisdiction of the Chamber to entertain the case could not be disputed on that score.
The appellant also alleged that the reference to Khaitan &; Sons was superfluous and no importance should be attached to the said words.
In the suit itself a faint attempt was no doubt made to challenge the identity of the firm Khaitan Sc Sons, but Mr. Pathak has very fairly not attempted to raise that point before us.
It would thus be noticed that the principal point made by the appellant in the arbitration proceedings before the Chamber in respect of the reference to Khaitan & Sons in the notes was entirely frivolous; no case of mistake appears to have been set out at that state.
Besides, as we have already pointed out, there is no evidence on which a finding of mistake can be reasonably made in favour of the appellant.
Therefore, we 93 must proceed to consider the question about the construction of the relevant documents on the basis that the reference to Khaitan & Sons which the notes make is not the result of any mistake and has been made in the ordinary course of businesss by the brokers.
Let us then consider what the effect of the bought and sold notes is according to the established custom in the mercantile world.
Mr. Viswanatha Sastri, for the respondent, contends that, according to the established commercial usage, if there is no variation or disparity in the bought and sold notes, the bought and sold notes issued by the brokers constitute the terms of the contract between the parties for whom the brokers act.
We are inclined to accept this contention.
The effect of such notes issued by the brokers has been frequently considered by judicial decisions.
As early as 1846 the Privy council had occasion to deal with this question in Cowie vs Remfry (1).
In that case a. C & Co and H.& Co; were merchants at Calcutta.
The latter sold to the former a large quantity of indigo through the medium of a broker who drew up a sold note addressed to H.& Co. and submitted.
it to H. for his approval.
H. Objected to a particular word appearing in the note whereupon the broker took the sold note to C. and informed him of His objection.
C. then struck his pen through the word objected to by H. placed his initials over the erasure and returned the note to the broker.
The broker then delivered it in that altered form to H. & Co. Next day the broker delivered to C. & Co. a bought note which differed in certain material terms from the sold note.
In an action brought by H. & Co. against C. & Co. for the breach of the contract as contained in the sold note the Supreme Court at Calcutta was of the opinion that the sold note alone formed the contract and so it decreed the plaintiff 's suit.
On appeal by the defendant the Privy Council reversed (1) (1846) 3 M.I.A.448 94 the finding of the Supreme Court and held that the transaction was one of bought and sold notes and Rai held that the circumstances attending C. 's alteration of the sold note and affixing his initials were not sufficient to make that note alone a binding contract.
According to the Privy Council, there being a material variation in the terms of the bought with the sold note they together did not constitute a binding contract.
It would thus be seen that the Judicial Committee was dealing with a case where the bought and sold notes did not tally and so the decision was that where the bought and sold notes do not tally the sold note alone cannot constitute the terms of the contract.
In dealing with this question, however, their Lordships referred to the mercantile custom in regard to the bought and sold notes and observed that "the established usage of dealing in the mercantile world should be held in high respect; the very existence of such usage shows that in practice it has been found useful and beneficial; the presumption is in its favour, and no departure from it is to be inferred from doubtful circumstances".
That is why the Privy Council reached the conclusion that "this must be considered as a transaction in the contemplation of the parties by bought and sold notes, and that, the contract is contained in both of the notes, and not in one;" inevitably there being a material variation between the two notes "the consequence follows, from all legal principles, that no binding contract has been effected".
This decision shows that the mercantile usage of entering into contracts evidenced by the bought and sold notes issued by the brokers was treated by the Privy Council as well recognised.
The next decision to which reference may be usefully made is the case of Sievewright vs Archibald(l).
In that case again there was a variation in the bought and sold notes and the variation was material, and so it was held that there was no (1) ; , 1228, 1229.
95 sufficient memorandum of a contract to satisfy the Statute of Frauds.
In dealing with the question raised for the decision of the Court Lord Campbell, C. J., has made certain general observations which throw considerable light on the genesis of the bought and sold notes and the effect which is ually attributed to the said notes by commercial usage.
"If the bought note case be considered a memorandum of the parol agreement", observed Lord Campbell, C. J., "so may the sold note; and which of them is to prevail ? It seems to me, therefore, that we get back to the same point at which we were when the variance was first objected, and the declaration was amended.
I by no means say that where there are bought and sold notes they must necessarily be the only evidence of the contract; circumstances may be imagined in which they might be used as a memorandum of a parol agreement.
Where there has been an entry of the contract by the broker in his book signed by him, I should hold without hesitation, notwithstanding some dicta, and a supposed ruling of Lord Tenterden in Thornton vs Meux (M. & M. 43), to the contrary, that this entry is the binding contract between tho parties and that a mistake made by him, when sending them a copy of it in the shape of a bought or sold note, would not affect its validity.
Being authorised by the one to sel], and the other to buy, in the terms of the contract, when he has reduced it into writing and signed it as their common agent, it binds them both, according to the Statute of Frauds, as if both had signed it with their own hands; the duty of the broker requires him to do so; and till recent times, this duty was scrupulously performed by every broker.
What are called the bought and sold notes were sent by him to his principals by way of information that he had acted upon their instructions, but not as the actual contract which was to be binding upon them.
This; clearly appears from the practice still followed of sending the bought note to the buyer, and the sold 96 note to the seller; whereas, if these notes had been meant to constitute the contract, the bought note would be put into the hands of the seller, and the sold note into the hands of the buyer, that each might have the engagement of the other party J, and not his own.
But the broker, to save himself trouble, now omits to enter and sign any contract in his book, and still sends the bought and sold notes as before.
If these agree, they are held the constitute a binding contrat; if there be any material variance between them, they are both nullities, and there is no binding contract.
This last proposition, though combated by the plaintiff 's counsel, has been laid down and acted upon in such a long series of oases that I could not venture to contravene it, if I did not assent to it; but, where there is no evidence of the contract unless by the bought and sold notes sent by the broker to the parties, I do not see how there can be a binding contract unless they substantially agree; for contracting parties must consent to the same terms; and where the terms in the two notes differ there can be no reason why faith should be given to the one more than the other".
These observations seem to establish two propositions, first that if the bought and sold notes show a material variation neither of them nor both of them taken together can be re.
lied upon for the purpose of proving the terms of the contract, and second if the bought and sold notes agree they are held to constitute a binding contract.
To the same effect is the observation made by the Privy Council in Ah Shain Shoke vs Moothia Chetty,(l) when Sir Richard Couch observed that "Moothia Chetty, one of the respondents, said in his evidence he did not consider the contract as concluded until bought and sold notes were signed.
He was right in this.
They were the only evidence of the contract.
" It is in the light of this legal position that we must consider the effect of the bought and sold (1) (1899) L. R. 27 I.A. 30 97 notes in the present case.
The notes referred to the appellant and added "A/C Khaitan & Sons Ltd." There is no disparity in the notes at all; and so the two notes can be safely taken to evidence the terms of the contract.
When along with the name of the appellant the notes specifically refer to a "Khaitan & Sons Ltd." with the preceding words "A/c ' ', there can be no doubt that the appellant is shown by the notes to be acting on account of the disclosed principal.
The appellant realised that the effect of the reference to Khaitan & Sons in the notes would inevitably be to support the plea of the respondent that it was not entitled to bring the present action and so it pleaded that the said reference was the result of a mistake.
Therefore, there can be no doubt that if the material question had to be considered in the light of the bought and sold notes alone the appellant was acting on behalf of the disclosed principal and, on the contract thus entered into, it had no right to sue end can claim no cause of action in its favour.
In Gadd vs Houghton (1), James, L. J. Observed "when a man says that he is making a contract 'on account of ' some one else, it seems to me that he uses the very strongest terms the English language affords to show that he is not binding himself, but is binding his principal".
In that case fruit brokers in Liverpool gave a fruit merchant a sold note which read thus: "We have this day sold to you on account of James Morand &; Co., Valentia, 2000 cases Valentia, oranges, of the brand James Morand & Co., at 12s.
per case free on board", and the brokers signed the note without any addition.
The purchaser brought an action against the broker for non delivery of the oranges.
It was held that the words "on account of James Morand & Co." showed the intention to make the foreign principals and not the brokers liable and that the brokers were not liable upon the contract.
It would be noticed that (1)(1876) 98 in dealing with the question about the brokers liability two points fell to be Gonsidered.
The first point in support of fixing the liability with the brokers was that the brokers had signed this note without describing themselves as acting for the disclosed principals; and the argument was that "when a man signs a contract in his name he is prima facie a contracting party and liable and there must be something very strong on the face of the instrument to show that the liability does not attach to him".
This principle was accepted by the learned judge who decided the case; but it was pointed out that there was another fact which had an overriding effect and that was that the note showed that the brokers were acting for the diclosed principal, and that fact clearly repelled the brokers ' liability in regard to the contract.
In dealing with the argument about the effect of the signature Mellish, L. J. Observed "when the signature comes at the end you apply it to everything which occurs throughout the contract.
If all that appears is that the agent has been making a contract on behalf of some other person, it seems to me to follow of necessity that that other person is the person liable.
This is one of the simplest possible case.
How can the words 'on account of Morand & Co. '. be inserted merely as a description ? The words mean that Morand & Co. are the people who have sold.
It follows that the persons who have signed are merely the brokers and are not liable".
We have referred to there observations made by Mellish, L. J., because as we will presently point out they would be of material assistance in deciding the point which Mr. Pathak has raised on the strength of the two subsequent letters.
Thus, the bought and sold notes in this case unambiguously indicate that the appellant was acting for a disclosed principal and the contracting party was the disclosed principal and no other.
It is, however, urged by Mr. Pathak that before determining the terms of the contract and the 99 parties to it we must read the notes in question along with the two letters.
We have already seen the sequence of the documents.
First, the notes were delivered by the brokers to the appellant and the respondent.
Then the respective parties filed confirmation slips and then followed the two letters exchanged between them.
Mr. Pathak contends that in its letter addressed to the respondent the apellant has definitely stated that 'they ' had bought from the respondent 1000 bales in question.
Mr. Pathak places considerable emphasis on the use of the word "we" without reference to the principal; and he also relies on the fact that the letter is signed by the appellant without describing itself as acting on behalf of the principal already disclosed.
Similarly he relies on the statement of the respondent 's letter to the appellant that the respondent had sold to the appellant "to you" the bales in question.
According to Mr. Pathak the significance of these letters should not be underestimated in determining the parties to the contrat.
There is no doubt, and indeed it is a matter of common ground before us, that the letters do not constitute all the terms of the contract, and all that is urged by Mr. Pathak is that they should be consider along with the notes.
The notes refer to the fact that if any dispute arises in the deal it is subject to the arbitration by the Bengal Chamber of Commerce.
They also refer to the sales tax number which is to be furnished by the buyers, otherwise they would be charged.
These terms undoubtedly constitute terms of the contract; but the argument is that in the correspondence which took place between the parties there is no reference to the principal and indeed the correspondence proceeds on the basis that the appellant acts for itself and not for a disclosed principal, and that Should be borne in mind in deciding whether the appellant was acting for tho disclosed principal or not.
100 In support of his argument that the signature of the appellant to its letter of January 3, 1951, and the use of the word "we" in the first paragraph of he letter indicate that the appellant was acting for hi itself.
Mr. Pathak relies on a decision of the King 'section Bench Division in H. O. Brandt & Co. vs H.N. Morris o. Ltd. (1).
In that case the plaintiffs who carried on business in Manchester gave to the defendants a bought note dated September 3, 1914.
This note was addressed to the defendants and was headed From Messrs. H.O. Brandt & Co., 63 Granby Row Manchester, For and on behalf of Messrs. Sayles Bleacheries, Salesville, Rhode, Island, U. section A.".
The note stated "we have this day bought from you 60 tone pure an line oil" and it was signed "H. O. Brandt & Co.".
The plaintiffs sued for non delivery of the oil.
Their claim was resisted on the ground that they had entered into the contract on behalf of a disclosed principal and therefore were not entitled to be sued.
It was held by Viscount Reading, C. J., and Scranton, L. J., Neville, J., dissenting, that the plaintiffs were the contracting parties and were entitled to sue upon the contract.
The majority decision was based on three grounds.
The first ground was that the plaintiffs had signed the note without describing themselves as acting on behalf of the principal and so it was held following the language used by Mellish, L. J., in the case of Gadd (2) that prima facie when a man signs a document in his own name and states therein "I have this day bought from you" he is the person liable on the contract.
The second consideration was that the reference to the foreign principal was made in the note in order to declare the destination of the goods.
There wax evidence adduced in the case to show that during wartime the destination of goods intended for export had to be made known.
Therefore the reference to the foreign principal was treated as having been made for the purpose of meeting the said (1) (2) (1876)1 exhibit D. 357.
101 requirement; and the third circumstance was that the plaintiff 's statement at the head of the note that they were acting for and on behalf of a foreign principal could not get rid of the prima facie presumption that a person signing a contract in his own name is personally liable on it.
It would thus be seen that the rule of construction which prescribes that if a person signs a contract prima facie he is the contracting party prevailed in that case because the reference to the disclosed principal was otherwise explained as serving another purpose altogether.
The said rule of construction prevailed also for the additional reason that the plaintiffs were acting for a foreign principal.
It would be remembered that 8. 230 of the Indian Contract Act provides that in the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.
There are, however, three cases specified in the section where such a contract would be presumed to exist; one of these cases is where a contract is made by an agent for sale or purchase of goods for a merchant resident abroad.
In other words, under section 230 if an agent enters into a contract for a disclosed foreign principal the main provision of section 230 will not apply because there would be a presumption that there is a contract to the contrary under which the agent would be personally bound by the contract notwithstanding the fact that he has entered into it on behalf of a foreign principal.
Therefore, we are not prepared to hold that the decision in the case of H. C. Brandt & Co. (1) lays down an unqualified rule of construction on which the appellant can rely.
In fact, it may be pointed out that Neville, J., who dissented from the majority view, has significantly observed that "I rather gaudier that I should not have found myself in isolation on this point were it not for the fact that during the war there is an obligation to disclose the destination (1) [1917] 2 K.B.784.
102 of the goods".
this observation shows that reference to the disclosed principal was not given its full effect in considering the question about the liability of the agent because it was held by the majority decision that the said reference was primarily, if not exclusively, made for the purposes of disclosing the destination of the goods.
In support of his argument that the relevant recitals in the two letters show that the contract had been entered into by the appellant on its own behalf Mr. Pathak has also referred us to the statement of the law made by Bowstead on "Agency".
"The question whether the agent is to be deemed to have contracted personally," it is observed, "in the ease of contract in writing other than a bill of exchange, promissory note, or cheque, depends upon the intention of the parties, as appearing from the terms of the written agreement as a whole, the construction whereof is a matter of a law for the Court (a) if the contract be signed by the agent in his own name without qualification, he is deemed to have contracted personally, unless a contrary intention plainly appear from other portions of the document, (b) if the agent add words to his signature, indicating that he signs as an agent, or for or on behalf of a principal, he is deemed not to have contracted personally, unless it plainly appears from other portions of the document, that, notwithstanding such qualified signature, he intended to bind himself.
" In conclusion it is added that "effect should be given to every word used and none should be rejected unless it is apparent that they have been introduce per incuriam" (P. 266, article 116).
These observations do not carry the appellant 's case very for because all that they show is that in determining the question as to whether the agent has entered into the contract on behalf of the principal or not the way he has signed the document has to be considered along with the other recitals made in the relevant documents.
103 What then would be the effect of the relevant recitals in the letter on which Mr. Pathak relies? In this connection it is necessary to recall that we are reading these letters along with the bought and sold notes, and that the bought and sold notes have unequivocally and clearly indicated that the appellant was acting on behalf and on account of the disclosed principal Khaitan & Sons.
If we read the letters in the light of the bought and sold notes it would be clear that the signature of the appellant will not have much significance, nor would the use of the word "we" by the appellant or "you" by the respondent make any difference.
Parties knew that the appellant was acting on behalf of the disclosed principal.
It is not suggested that in such a case every time the agent has to sign expressly stating that he is acting on behalf of the disclosed principal.
Therefore, if the appellant was acting for the disclosed principal the fact that he did not add the relevant description to his signature, or used the word "we" in the operative portion of the letter would not materially alter the fact spoken to by the notes that the appellant was acting on behalf of the disclosed principal.
It cannot be suggested that these letters intended to alter the position disclosed by the notes.
The letters, like the confirmation slips, are and must be, presumed to be consistent with the notes; and so it would be unreasonable to attach undue importance to the signature and to the use of the relevant words "we" and "you" on which reliance has been placed.
In our opinion, therefore, the appellate Court was right in holding that even if the bought and sold notes are read along with the confirmation slips and the two letters of January 3, 1961, and January 15, 1951, the conclusion is inescapable that the appellant entered into the contract on behalf of the disclosed principal Khaitan & Sons Ltd. If that be so, it follows as a matter of law that the appellant is not entitled to bring the present suit.
104 Mr. Pathak faintly attempted to argue in the alternative that even if the appellant was acting on behalf of the disclosed principal it would be entitled to sue because from the subsequent conduct of the parties a contract to the contrary could be reasonably inferred.
We have, however, not allowed Mr. Pathak to argue this point.
It was conceded by the appellant before the Appellate Court that if it was held that the plaintiff firm was acting as agent for Khaitan & Sons Ltd., the suit was not maintainable.
This concession was made in view of the provisions of section 236 of the Contract Act.
Besides, the alternative plea which Mr. Pathak wanted to raise does not appear to have been expressly pleaded or considered in the trial court.
In the result the appeal fails and is dismmissed.
In the circumstances of this case we direct that the parties should bear their own costs in this Court.

summary/full:
The appellant sued the respondent for damages for breach of contract.
The respondent pleaded that the appellant had contracted as agent for its disclosed principal and had no right to sue.
The bought and sold notes issued by the brokers showed that the appellant had entered into the contract on account of the disclosed principal; but in the confirmation slips and subsequent letters exchanged between the parties no reference was made to the principal nor did the appellants describe themselves as acting or signing on his behalf.
^ Held, that it is well established in commercial usage that the bought and sold notes issued by the brokers, where 82 there is no variation or disparity between them, constitute the contract that must bind the parties.
But where the bought and sold notes show material variations, neither of them nor both of them taken together can be relied upon for proving the terms of the contract.
Since there was no disparity in the instant case between the two notes which specifically mentioned the appellants as acting on account of the disclosed partner, it must be held that the appellants had entered into the contract on behalf of the disclosed partner and as such was not entitled to sue.
Cowie vs Ramfry, (1846) 3 Moo.
I. A. 448, sievewright vs Archibald; , , Ah Shain Shoke vs Moothia Chetty (1899) L. R. 27 I. A. 30 and Gadd vs Houghton (1876) I exhibit D. 357, referred to.
Held, further, that in deciding whether or not the agent had entered into the contract on behalf of the principal, the way he signed the document must be considered in the light of the recitals in the relevant document.
In the instant case, the letters and the confirmation slips must be read in the light of the bought and sold notes and presumed to be consistent with them and it would, therefore, be unreasonable to attach undue importance to the signature or how the parties described themselves.


judgement:
ION: Criminal Appeal No. 115 of 1959.
Appeal by special leave from the judgment and order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 414 of 1957.
N.C. Chatterjee.
I.M. Lal, C.L. Sareen and Mohan La1 Agarwal, for the appellant.
N. section Bindra and P. D. Menon, for the respondent.
October 16.
The Judgment of the Court was delivered by DAS GUPTA, J.
Six persons including the present appellants were tried by the Additional Sessions Judge Ferozpur on several charges in connection with the death by homicidal injuries of two brothers Munshi Singh and Hazura Singh.
Of these six, Bhag Singh was the father of the other five accused persons.
All the six accused persons were acquitted by the Additional Sessions Judge; on appeal by the State, the High Court of Punjab set aside the orders of acquittal in respect of Harbans Singh and Major Singh and convicted them under section 302 of the Indian Penal Code.
The appeal was dissmissed in respect of the other four, viz., Bhag Singh, Gursi, Bant Singh and Gian Singh.
It is against this order of conviction that Harbans Singh and Major Singh have filed the present appeal after obtaining special leave from this Court.
The prosecution case is that at about 8 or 9 P.M. on July 23, 1956, shortly after Munshi Singh had returned home and complained to his father Hira Singh about the conduct of Harbans Singh and Bant Singh in abusing him.
Munshi Singh ran out of his house on hearing some cries; but when he reached the Dharamshala not far from his house 107 these two appellants, along with their father Bhag Singh and their brothers Bant Singh, Gian Singh and Gursi fell upon him and caused numerous injuries with the weapons which they carried.
Harbans Singh, it is said, struck Munshi Singh on the abdomen with a Sela in his hand.
Munshi Singh 's brother Hazura Singh and his father Hira Singh also had followed Munshi Singh when he ran out of the house.
On seeing this attack on Munshi Singh, EIazllra Singh tried to intervene, but he too was attacked and received several injuries.
Harbans Singh, it is said, gave him a Sela thrust in the abdomen.
Munshi Singh died on the spot; Hazura Singh was brought to the hospital at Gidderbha the following morning and received some treatment but he also died of his injuries the following day, that is, the 24th July.
All the accused pleaded not guilty, the defence being that they had been falsely implicated out of enmity.
To prove its Base the prosecution relied on the evidence of two persons, the deceased 's father Hira Singh and their uncle Bhag Singh and the dying declaration alleged to have been made by Hazura Singh, once in the village before Devendra Singh, the Sub Inspector of Police who had come to the village that night in connection with some other investigation and for the second time at Gidderbha hospital before a Magistrate.
On a consideration of the evidence the Trial Judge came to the conclusion that the prosecution case had not been proved against any of the accused person.
Being of opinion that the First Information Report had been recorded as late as 4 30 P.M.
On the 24th July he thought that "the complainant party was not able to day who the assailants were and the police was making time to find out the culprits after investigation and the First Information Report was delayed on that account." He was doubtful also about the truth of the Sub Inspector 's 108 story that he actually reached the village of occurrence on that very night and consequently doubtful about any statement having been made by Hazura Singh to him on that night.
In any case, he thought Hazura Singh 's dying declaration had little probative value because as many as six persons had been named and that it could not be relied upon without corroboration.
The learned Judge was also not satisfied that Bhag Singh (Prosecution Witness) "was present in the village or at his house at the time of the occurrence" since "his statement was not recorded in the Inquest Report prepared by the police at midnight".
The learned Judge also thought it unsatisfactory that nobody other than these two near relatives, that is, the father and uncle of the deceased persons had been examined as witnesses of the occurrence.
These were the main reasons for which he came to the conclusion that the case had not been proved against any of the accused beyond reasonable doubt and accordingly acquitted the accused The High Court was of opinion that the learned Judge was wholly "wrong in holding that Bhag Singh was not mentioned in the Inquest Report"; that he had misread the time of the first Information Report as 4 30 P. M. for 4 30 A. M. and that he was again in error in concluding that "the statement made by Hazura Singh to the police on their arrival at 1 15 A.M. was inadmissible".
After pointing out these "errors" in the reasoning of the learned Trial Judge the High Court said: "We have no hesitation in concluding that for the said reasons the judgment of the learned Additional Sessions Judge is wholly erroneous resulting in complete miscarriage of justice.
After having gone through the testimony of both of the eye witnesses and examining the other material, particularly the two dying 109 declarations, we are of the view that the projection case was substantially true and have been proved.
As regards complicity of Harbans Singh and Major Singh, there appears to be no doubt.
Both of them had been assigned participation and were responsible for the fatal blow on each of the deceased.
In this respect the testimony of both of the witnesses and the dying declarations are consistent.
They were accordingly held guilty under section 302, Indian Penal code.
" The main contention raised by Mr. Chatterjee on behalf of the appellants is that the High Court had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and that the High Court itself had been guilty of "errors", especially as the High Court has misread the judgment of the learned Additional Sessions Judge and had attributed to him statements which are not to be found in his judgment.
The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning.
In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal court should not interfere with an order of acquittal.
(Vide Suraj Pal Singh vs The State (1); Ajmer Singh vs State of Punjab (2); Puran vs State of Punjab (3).
The use of the words "compelling reasons" embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the (1) (2) [1953] section C. R. 418.
3)A.l.
R. 110 words "compelling reasons".
In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.
(Vide Chinta vs The State of Madhya Pradesh (1); Ashrafkha Haibatkha Pathan vs The State of Bombay (2), It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the Court did not in any way try to curtail the power bestowed on appellate courts under s 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the Court was anxious to impress can the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals.
As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on "compelling reasons".
But, on close analysis, it iq clear that the principles laid down by the court ill this matter have remained the same.
What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine (1) Criminal Appeal No. 178 of 1959 decided on l8 11 60.
(2) Criminal Appeal No. 38 of 1960 decided on 14 12 60. 111 the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable.
Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference.
For, it is a court 's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.
When the High Court 's judgment shows clearly that the matter has been approached in the proper manner and the correct principles have been applied, there is very little scope for this Court to interfere with an order made by the High Court convicting an accused person in an appeal against acquittal.
Once it is found that the principles laid down by this Court have been correctly applied this Court will not ordinarily embark upon a reappraisal of the evidence to ascertain whether the High Court was right in its view of the evidence.
The only examination of the evidence that this Court may find itself called upon to undertake will ordinarily be just so much as is necessary to see whether the High Court has approached the question properly and applied the principles correctly.
The position may however be different if the judgment of the High Court while indicating its conclusion that in its opinion the view taken by the lower court is unreasonable does not disclose a careful examination of the evidence for coming to such conclusion.
Or it may appear from the High Court 's judgment that the High Court has erred on questions of law or has obviously misread the evidence on the record or the judgment of the Trial Court.
What is this Court to do in such cases ? We are unable to agree 112 with Mr. Chatterjee that the only proper course for this court to take is to set aside the order made by the High Court and restore the order of acquittal.
For, even where the High Court 's judgment suffers from any of these defects it may very well be that the High Court 's conclusion that the view of the lower court is unreasonable is correct.
So, unless this Court thinks fit to send the case back to the High Court for re hearing of the appeal and its disposal in accordance with law, it becomes the duty of this Court in cases like these which fortunately are likely to be few in number to appraise the evidence for itself, to examine the reasons on which the lower court based the order of acquittal and then decide whether the High Court 's conclusion that the view taken by the lower Court on the question of the guilt of the accused is clearly unreasonable, is correct.
If satisfied that the view was clearly unreasonable, this Court is bound to dismiss the appeal and to maintain the order of conviction made by the High Court; if on the contrary, this Court is not satisfied on such examination that the conclusion reached by the lower court that the guilt of the accused has not been proved was clearly unreasonable, the order of acquittal would be restored.
The judjment of the High Court in the present case does not contain much discussion of the evidence in the case.
All the discussion of the eviddnce is confined to the few sentences which we have quoted earlier in this judgment.
We also notice that the learned judges of the High Court were under some misapprehension in thinking that the Additional Sessions Judge had held that Bhag Singh was not mentioned as a witness in the Inquest Report.
What the Additional Sessions Judge had pointed out was that Bhag Singh 's statement had not been recorded in the Inquest Report.
The Additional Sessions Judge was certainly right in this.
While the High Court might have well thought that no doubt against 113 the credibility of Bhag Singh should be based on this fact that his statement was not recorded, the High Court was not justified in attributing to the Trial Judge something which he did not say.
It is also not quite clear how the learned Judge said about the appellant Major Singh that he had been assigned participation and was responsible for the fatal blow on each of the deceased.
In fact, neither of the two who claim to be the eye witnesses of the occurrence has said that Major Singh dealt a fatal blow on either Hazura Singh or Munshi Singh.
While it is true that a general statement is made by both the witnesses as regards all the six accused having attacked both Munshi Singh and Hazura Singh neither of them has spoken of any particular injury having been caused by Major Singh.
Hazura Singh himself in his dying declaration did say that Major Singh gave him a Sela blow on his left wrist but does not speak of any other injury having been caused by Major Singh either to him or to Munshi Singh except that he also said generally that all the accused gave blows on the person of Munshi Singh.
The High Court has therefore clearly misdirected itself in thinking that Major Singh was responsible for any of the fatal injuries.
In view of all this we consider it necessary to examine the judgment of the Trial Court and also the evidence on record ourselves for a proper decision of this appeal.
Turning to the judgment of the Trial Court we find that the main circumstance which weighed with him for doubting the truth of the prosecution story is what he considered the considerable delay in recording the First Information Report.
From the printed record before us we find that Narendar Nath Moharrir Head Constable, who actually entered the formal First Information Report, stated in his evidence that he made the entry at "4.30 P.M." on the 24th July 1956.
It is apparently this 114 fact taken with the fact that the report did not reach the Magistrate Shri Pasricha before 8.45 P.M. on the 24th July that made the learned Judge think that the First Information was made at the Police Station at 4.30 P.M.
He has unfortunately not noticed that the record of the First Information Report exhibit PP1 shows the time of record as 4.30 A.M.
He also overlooked Narendranath 's own evidence in cross examination in these words: "I have perused the Roznamcha entries and find that this special report was despatched by me through Chanan Singh Foot Constable at 5.15 A.M.
I cannot say why he did not deliver it to the Magistrate till 8.45 P.M." It is quite clear that 5.15 A.M. as recorded in the printed record in Narender Nath 's cross examination is not a mistake for 5.15 P.M.
If that had been so there would have been no point in his saying that he could not say why the Constable did not deliver it to the Magistrate till 8.45 P.M. when this statement in cross examination is considered along with the recording of the time in exhibit PP1 itself there is no escape from the conclusion that 4.30 P.M. as stated in Narender Nath 's Examination in Chief was a slip of tongue and the correct time of the record was 4.30 A.M. and that the fact that it reached the Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable was negligent and took his own time about going to the Magistrate or to some other reason not clear from the record.
The reasoning of the Trial Judge based on his wrong view about the time of recording of the formal First Information Report that the complainant party was not able to say who the assailants were and so delay was made, therefore falls to the ground.
The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and that no conviction could in law be based on such dying declaration without corroboration.
The law does not make any 115 distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits.
A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true.
Just as when a number of persons are mentioned as culprits by a person claiming to be an eye witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration that court has to scrutinise the evidence in respect of each of the accused.
But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits.
The contrary view taken in the Lahore High Court in Khurshaid Hussain vs Emperor (1) on which apparently the Trial Judge has relied is clearly erroneous.
The learned Judge appears to have relied also on what was said by this Court in Ram Nath vs State of Madhya Pradesh(2) on the need of corroboration for a dying declaration.
Speaking for the Court Mahajan J. (as he then was) observed in that case: "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.
" The question was however considered again by this Court in Khushl Rao vs State of Bombay(3).
After pointing out that in Ram Nath 's Case (Supra) the 116 Court after a careful examination of the facts of that case distinctly came to the conclusion that the dying declaration was not true and could not be relied upon this Court stated in the later case that the observations of the Court in Ram Nath 's case were in the nature of obiter dicta.
The Court then proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court and stated the law in these words: "that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general position that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he 117 was making the statement by circumstances beyond his control that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
"Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination.
But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.
Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case.
" In view of this latest pronouncement of this Court which it should be stated in fairness to the Trial Judge was made long after he gave his judgment it must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon.
The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any 118 witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in Court by a person claiming to be witness of the occurrence.
In the first place, the Court has to make sure as to what the statement of the dead man actually was.
This itself is often a difficult task, specially where the statement had not been put into writing.
In the second place, the court has to be certain about the identity of the persons named in the dying declaration a difficulty which does not arise where a person gives his depositions is Court and identifies the person who is present in court as the person whom he has named.
Other special considerations which arise in assessing the value of dying declarations have been mentioned by this Court in Khushal Rao vs State of Bombay(1) and need not be repeated here.
In view of this latest pronouncement of this Court on the question of need of corroboration of a dying declaration by other evidence, it must be held that the Trial Judge was wrong in thinking that he could not act on the dying declaration of Hazura Singh unless it was corroborated by other evidence.
In view of the several defects in the reasoning of the Trial Judge, it is necessary for us to examine the evidence on the record to see whether the High Court was right in thinking that the view taken by the learned Judge was clearly unreasonable.
The most important evidence in the case is furnished by the dying declaration made by Hazura Singh.
The Investigating Officer, Devender Singh has said that on July 22, 1956 he had gone to the village Rikala on an excise raid and from there he went to Mallan at about 2 P.M. on July 23, to investigate a case under section 392 of the Indian Penal Code.
His further evidence is that it was on the same night at about midnight that he started for Dhurkot from Mallan.
We see 119 no reason to doubt the truth of his statement that he did reach Dhurkot shortly after midnight of the 23rd July and that when on hearing that a murder had taken place near the Dharamshala he came to the Dharamshala.
Hazura Singh who was lying injured on a cot there made a statement to him, he recorded the statement correctly.
That statement has been marked exhibit PP.
The substance of this statement is that at about 9 P.M. on the night of the occurrence his brother Munshi Singh came and complained about the conduct of Bant Singh, Harbans Singh and other sons of Bhag Singh and that shortly after this on hearing shouts of Bant Singh and others near the Lharamshala, Munshi Singh went towards that place followed by Hazura Singh and his father Hira Singh and that when they reached the place they found Harbans Singh and the other accused persons all armed with weapons raising uproar and when Munshi Singh reached the place and returned the abuse Harbans Singh gave the first blow to Munshi Singh with a Sela in his hand hitting him on the front of the chest after which others of the party also gave blows and when Hazura Singh stepped forward to rescue his brother, Harbans Singh gave him a blow with a Sela in his hand which hit him on the abdomen and the other accused also gave him blows.
The blow given by Major Singh hit him on his left wrist.
It is clear that this statement was made by Hazura Singh shortly after midnight i.e., within about four hours after the occurrence.
It has to be remembered that Hazura Singh had one single serious injury viz., the penetrating wound on his abdomen.
We are satisfied from the evidence of the witnesses that there was sufficient moonlight that to enable Hazura Singh to recognize clearly the assailant who struck the blow which caused this injury.
He could have therefore made no mistake about the indentity of his assailant.
Nor is it likely that he 120 would within a few hours of the occurrence ascribe this fatal blow on him to somebody other than the real assailant.
The several injuries on Hazura Singh and the numerous injuries on Munshi Singh justify the conclusion that there was more than one assailant in the attacking party.
Whether or not Hazura Singh could have made a mistake about the identity of the other assailants or could have implicated some of them at least falsely, it will be unreasonable to think that he would substitute another person for the one assailant who gave him the fatal blow.
On a consideration of these circumstances we are therefore satisfied that it would be unreasonable to doubt or disbelieve the truth of Hazura Singh 's statement when he said that Harbans Singh struck him with the Sela in his hand which hit him on the abdomen.
Even if there was no other evidence on the records as regards the part taken by the appellant Harbans Singh this dying declaration of Hazura Singh is so clearly true that the only reasonable view for a judge of facts to take is that Harbans Singh caused the death of Hazura Singh by striking him with a Sela.
As has already been noticed Hazura Singh in this statement mentioned Harbans Singh as the person who gave the first blow to Munshi Singh, the blow which caused one of the injuries on his chest.
We can think of no reason why this main part should be ascribed falsely to Harbans Singh; we think, considering the circumstances in which the statement was made, that this part of Hazura Singh 's statement is also clearly the truth and could reasonably be accepted even without any corroboration.
A second statement of Hazura Singh was recorded at the Hospital where he was removed.
This statement appears to have been recorded at about midnight of the 24th July.
In this statement also he mentioned Harbans Singh and the other accused persons as having taken part in the attack.
It appears that when this statement was made 121 Hazura Singh 's condition was very bad.
Indeed, after he had made a part of the statement the Magistrate recorded that he had started giving indifferent answers and asked the Doctor to give him the necessary treatment.
After the treatment was given the statement was concluded.
We would not attach much weight to this statement on the 24th July.
But, it will be noticed that there is nothing in this latter statement which detracts from the truth of the earlier statement made shortly after the occurrence to the police sub Inspector.
There is apart from this the testimony in Court of Hira Singh the father of the two deceased persons and his uncle Bhag Singh.
As regards Bhag Singh the learned Trial Judge has pointed out that Bhag Singh 's statement was not recorded by the sub Inspector in the Inquest Report.
While there is nothing in law which requires the statement of witnesses to be recorded in the Inquest Report, it appears to be a common practice in Punjab for police officers to record statements of witnesses in Inquest Reports.
In the present case the Sub Inspector appears to have recorded a fairly full statement of Hira Singh as also short statements of Arjan Singh, Matha Singh and Lakal Singh in the Inquest Report itself.
It is somewhat curious therefore that the Sub Inspector did not record the statement of Bhag Singh also in this report even though it is found that Bhag Singh was named as a witness of the occurrence in Hazura Singh 's dying declaration itself.
It is also difficult to understand Bhag Singh 's statement that he left the place as soon as some neighbours came up after the occurrence and did not go back to the spot till he was called by the police.
He has offered no explanation for this rather unusual conduct.
In view of all this, we are not prepared to say that tho Trial Judge acted unreasonably in doubting his testimony.
We are unable however to discover any valid reason for doubting the presence of Hira Singh at 122 the place of occurrence.
It seems to us that the main reason for the Trial Judge to doubt the truth of Hira Singh 's evidence was what he considered the great delay in lodging the formal First Information Report.
That reason, as we have already pointed out, does not exist.
On an examination, it seems to us quite likely that Hira Singh also accompanied Hazura Singh when the latter followed Munshi Singh towards the Dharmashala and it also seems to us improbable that he would give the main part in the assault falsely to Harbans Singh if somebody else was responsible for the blow which caused Hazura Singh 's death.
In our view the learned Trial Judge acted unreasonably in doubting the truth of Hira Singh 's evidence against Harbans Singh.
On a consideration of the evidence we are therefore satisfied that the conclusion reached by the High Court that the view taken by the Trial Court as regards Harbans Singh 's guilt Was clearly unreasonable is correct and that the only reasonable view on the evidence can be that Harbans Singh committed murder by causing the death of Hazura Singh and also committed murder by causing the death of Munshi Singh.
The position is however different as regards Major Singh.
As has already been pointed out the High Court is wrong in thinking that the evidence Shows that Major Singh gave any of the fatal blows.
Hazura Singh in his first dying declaration mentioned Major Singh as having given a below on him on his left wrist.
Apart from Bhag Singh only Hira Singh has ascribed any specific part to Major Singh in addition to saying generally that he took part in the attack.
The evidence therefore leaves scope for thinking that Hazura Singh has made a mistake about Major Singh or has wrongly implicated him.
We are not therefore prepared to say that the view taken by the Trial Judge as regards Major Singh is clearly unreasonable.
123 We therefore allow the appeal of Major Singh set aside the order of conviction and sentence made against him by the High Court and restore the order of acquittal made by the Trial Court.
The appeal of Harbans Singh is dismissed.
Major Singh should be set at liberty at once.
Appeal of appellant 2 allowed.
Appeal of appellant 1 dismissed.

dataset_name: IN-Abs

summary/full:
The High Court set aside the Trial Court 's order of acquittal of the appellants and convicted them on a charge of murder under section 302 of the Indian Penal Code.
On appeal by the appellants by special leave ^ Held, that this Court in its earlier decisions emphasised that interference with an order of acquittal should be based only on "complying and substantial reasons" and held that unless such reasons were present an Appeal Court should not interface with an order of acquittal, but this Court did not try to curtail the powers of the appe11ate court under section 423 of the Code of Criminal Procedure.
Though in its more recent pronouncements this Court laid less emphasis on 105 "compelling reasons" the principle has remained the same.
That principle is that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care and must also examine the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge was clearly unreasonable.
Once the Court came to the conclusion that the view of the lower court was unreasonable that itself was a "compelling reason" for interference.
Once it was found that the High Court applied the correct principles in setting aside the order of acquittal this Court will not ordinarily interfere with the High Court 's order of conviction in appeal against acquittal o enter into the evidence to ascertain whether the High Court was right in its view of the evidence.
Only such examination of the evidence would ordinarily be necessary as is needed to see that the High Court approached the question properly and applied the principle correctly.
If the judgment of the High Court did not disclose a careful examination of the evidence in coming to the conclusion that the view of the acquitting court was unreasonable or if it appeared that the High Court erred on questions of law or misread the evidence or the judgment of the trial court, this Court would, unless the case was sent back to the High Court for re hearing, appraise the evidence for itself to examine the reasons on which the lower court based its order of acquittal and then decide whether the High Courts view that the conditions of the lower court was unreasonable, was correct.
If on such examination it appeared to the Court that the view of the acquitting court was unreasonable the acquittal would be set aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored.
Suraj Pal Singh vs State, , Ajmer Singh vs State of Punjab ; , Puran vs State of Punjab A.I.R. 1953 S.C. 459, Chinta vs State of M. P., Cr. A. No. 178 of 59 and Ashrafkha Haibatkha Pathan vs State of Bombay, Cr. A. No. 38 of 1960, referred to.
It was neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence before a conviction could be ba ed thereon.
Ram Nath vs state of M. P. A.l.
R. 1953 S.C. 420, referred to.
Khushal Ram vs State of Bombay, [l958] S.C.R. 552, followed.
A dying declaration did not become less credible if a number of persons were names are culprits 106 Khurshaid Hussain.
vs Emperor,(1941) 43 Cr.L.J.59, held erroneous.