judgement:
Criminal Appeal No. 56 of 1951.
Appeals by special leave from the Judgment and Order dated the 9th March, 1950, of the High Court of Judicature at Nagpur (C. R. Hemeon J.) in Criminal Revisions Nos. 152 and 153 of 1949 arising out of Judgment and Order dated the 24th March, 1949, of the Court of the Sessions Judge, Nag pur, in Criminal Appeals Nos. 26 and 27 of 1949 and Judgment and Order dated the 15th January, 1949, of the Court of the Special Magistrate, Nagpur, in Criminal Case No. 1 of 1948.
1092 N.C. Chatterjee (B. Bannerjee and A.K. Dart, with him) for the appellant in Criminal Appeal No. 56 of 1951.
Bakshi Tek Chand(K. V. Tarnbay, with him) for the appel lant in Criminal Appeal No. 57 of 1951.
T.L. Shivde, Advocate General of Madhya Pradesh (T. P. Naik, with him) for the respondent.
Sept. 23.
The Judgment of the Court was delivered by MAHAJAN J.
This is a consolidated appeal by special leave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, in Criminal Revisions Nos. 152 and 153 of 1949.
On a complaint filed by the Assistant Inspector General of Police, Anti Corruption Department, Nagpur, the appel lant in Criminal Appeal No. 56 of 1951 (H. G. Nargundkar, Excise Commissioner, Madhya Pradesh), and the appellant in Criminal Appeal No. 57 of 1951 (R.S. Patel) were tried in the court of Shri B.K. Chaudhri, Special Magistrate, Nag pur, for the offence of conspiracy to secure the contract of Seoni Distillery from April, 1947, to March 1951 by forging the tender, Exhibit P 3A, and for commission of the offences of forgery of the tender (Exhibit P 3A) and of another document, Exhibit P 24.
The learned Special Magistrate convicted both the appellants on all the three charges.
He sentenced R.S. Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000, and Rs. 1,000, under the first, second and third charges respectively.
The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1.,000, under the first, second and third charges respectively.
Each of the appellants appealed against their respective convictions and sentences to the Court of the Sessions Judge, Nagpur.
The learned Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under section 120 B, I.P.C., but maintained the 1093 convictions and sentences under section 465, I.P.C. or the charges of forging Exhibits P 3 (A) and P 24.
Both the appellants went up in revision against this decision to the High Court but without any success.
An application was then made under article 136 of the Constitution of India for special leave to appeal and this was allowed by this Court on 24th March, 1950 The appellant, Nargundkar, is a member of the Central Provinces & Berar Provincial Service and held the substan tive post of Deputy Commissioner for several years.
In April, 1946, he was appointed Excise Commissioner.
Madhya Pradesh, and continued to hold that office till the 5th September, '1947.
The appellant, R.S. Patel, is a sugar Technologist and Chemical Engineer.
He received his technical education and practical training in America and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces in 1944, when the Provincial Government gave him a licence to set up a dis tillery for the manufacture of industrial spirit.
On the 11th September, 1946, Nargundkar in his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts f or a period of four years from 1st April, 1947, to 31st March, 1951.
The last date for submitting the tenders was the 31st October, 1946.
In response to this tender notice, five tenders were filed including those filed by (1) appellant, R.S. Patel, (2) K.B. Habibur Rahman, (3).
Zakirur Rahman, and (4) Edulji V. Doongaji (P. W. 4), in sealed covers with the Excise Commis sioner on the 31st October, 1946, and he handed them over with the seals intact to the office superintende.
nt, S.W. Gadgil (P. w. 13), for safe custody.
Gadgil took them to his room and kept them under lock and key in the office safe.
The case for the prosecution is that on the 9th Novem ber, 1946, accused Nargundkar took these sealed tenders home, that the tenders were opened by him at his house, that the rates of the tender (Exhibit 1094 P 6) of E.J. Doongaji (P. W. 4) were divulged to accused 2 (R. section Patel), who was allowed to substitute another tender (Exhibit P 3A), containing rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nar gundkar the tender of accused 2 (Patel) was accepted and the contract was given to him.
In May, 1947, on receipt of an application (Exhibit P 1) from one Dilbagrai (P. W. 14), enquiries were started by the Anti Corruption Department.
Both the accused became aware of the enquiry.
In order to create evidence in their favour they brought into existence a letter (Exhibit P 24) and antedated it to 20th November, 1946.
This document was forged with the intention of com mitting fraud and of causing injury to Amarnath (P. W. 20) and also to Doongaji (P.W. 4).
Exhibit P 24 is alleged to have been typed on a typewriter (Article A) which was pur chased on the 30th December, 1946, by the National Industri al Alcohol Co., Nagpur, of which accused Patel was the managing director.
It Was further alleged that the endorse ment made by accused 1 (Nargundkar) in the said letter "No action seems necessary.
File", and marked to Superintendent "S" was not made on the 21st November, 1946, which date it bears.
This letter was handed over by accused 1 to the Office Superintendent, S.W. Gadgil (P.W. 13) about the middle of August, 1947, and thereafter accused I wrote a letter (Exhibit P. 26), on the 2nd October, 1947, to Sri section Sanyal (P.W. 19) who was then the Excise Commissioner, requesting that this letter (Exhibit P 24) and a note sheet (Exhibit P 27) be kept in sale custody.
Both the accused denied the commission of the offences of criminal conspiracy, forgery and abetment thereof.
Nargundkar denied having attended office on the 9th Novem ber, 1946.
He denied having taken the tenders home.
Ac cording to him, the tenders were opened by him in the office on the 1095 11th November, 1946.
Accused 2 denied that the tender of Doongaji was shown to him by accused 1 between the 9th and 11th November, 1946.
He stated that the tender (Exhibit P 3A) was the original tender submitted by him on the 31st October, 1946.
As regards Exhibit P 24, it was denied that it was fabricated or antedated.
Accused 2 stated that it was not typed on article A.
He also alleged that the allegations made in Exhibit P 24 were correct.
Accused Nargundkar stated that the endorsement was made by him on the 21st November, 1946.
The first charge having failed, nothing need be said about it herein.
In order to prove the second charge the prosecution had to establish that Gadgil, P.W. 13, handed over the sealed tenders on the 9th November, 1946, to accused Nargundkar, that the latter took them home, that between the 9th and the 11th November he met Patel at his house or elsewhere and that accused.
Nargundkar showed or communicated the particu lars of the tender of Doongaji to accused Patel who substi tuted Exhibit P 3A for his original tender before the 11th November, 1946.
Admittedly there is no direct evidence to prove any of these facts except the first one, and the nature of the case is such that recourse could only be had to circumstantial evidence to establish those facts.
The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on the 9th November has been held proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar.
Gadgil was himself a suspect in the case.
He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police and his leave was extended at their request.
On the expiry of his leave he was kept off duty without salary for a period of about five months but later on he was paid his full salary after he had given evidence in support of the prosecution.
He made addi tions and improvements on vital points from stage to stage of his deposition and in certain particulars his statement was contradicted by Ramaswami, P.W. 80.
On his own admission he is an accomplice in respect 1096 of the forgery of Exhibit P 27, one of the documents al leged to have been forged for purposes of the defence but concerning which no prosecution was started.
Exhibit P 27 bears date 31st October, 1946.
Gadgil 's statement about it is as follows: "He (Nargundkar) put down his signature and the date 31st October, 1946.
This order was actually written by Sh.
Nargundkar in the note sheet, Exhibit P 27, in the month of July or August, 1947.
The dates were antedated.
In the margin of the note sheet I have put down my initials S.W.G. and put the date 31st October, 1946.
This note sheet was not prepared on gist October, 1946.
He asked me to keep it in my custody.
" The witness admittedly became a party to the preparation of a forged document.
Whether he was telling the truth, or he was telling a lie, as appears likely from his cross examination, he is in either event, not a person on whom any reliance could be placed.
It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three courts below.
When the court of first instance and the court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, this court as the final court does not disturb such findings, save in most exceptional cases.
But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony should not be accepted unless it is corroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the ease require it, and substantial and grave injustice has result ed.
After fully examining the material on the record we have reached the conclusion that the courts below were in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the tenders to Nargund kar on the 9th November, 1946.
The witness was not allowed to live in a free atmosphere and was kept under police 1097 surveillance during the whole of the period of investigation and the trial and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution.
He is a person who felt no hesitation in deposing on oath that he willingly became a party to the forgery of Exhibit 13 27.
Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above.
No direct ' evidence was adduced in proof of those facts.
Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P 3A.
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind.
In such cases there is always the danger that conjecture or suspi cion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg vs Hodge (1) where he said : "The mind was apt to take a pleasure in adapting circum stances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that 'is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In (1) 141 1098 other words, there must be a chain of evidence so far com plete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
In spite of the force ful arguments addressed to us by the learned Advocate Gener al on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P 3A or ,outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.
The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1.
He thus found that there was motive for the commission of the crime.
The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point.
It observed that the evidence which tended to prove friendship or undue favour was not such as to form the basis for a finding.
It further found that there was nothing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji 's tender to accused R.S. Patel.
The first circumstance therefore on which the trial Judge placed considerable reliance was negatived by the court of appeal and in revision.
It having been found that there was no motive whatsoever for accused Nargundkar to show the tenders to accused Patel and to take a substi tuted tender from him, the main link in the chain of reason ing of the trial court vanishes.
Amiable relations between the two accused or their official relationship could not be regarded as sufficient motive for committing the crime of forgery.
The mainstay of the prosecution case is the intrinsic evidence of the contents of Exhibit P 3A itself which ac cording to the courts below are unusual, peculiar and strange and which according to the Advocate General could not be there if it was a genune 1099 document.
The argument would have force provided the prem ises on which it is based are correct.
Having examined the contents of Exhibit P 3A, we do not find anything very unusual or extraordinary in it which could not be there without its author having seen Exhibit P 6.
We now proceed to examine the so called peculiar features in Exhibit P 3A.
In order to appreciate the points made by the learned Advocate General it is necessary to set out certain facts.
Exhibit P 9 is the notice calling for tenders for the supply of country spirit in the Seoni distillery area.
The rates which were called for by this notice were as follows: 1.
Flat rate for four years.
Rates on sliding scale for four years.
All in rate on the sliding scale for one year 1947 48. 4.
Flat rates on the basis of the price of mahua flowers for three years 1948 51. 5.
All in sliding scale rate on the basis of the price of mahua flowers for three years 1948 51.
The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years.
Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P 4 and P 5, quoted one flat rate for four years and did not mention separate flat rates for separate years.
Doongaji in his tender, Exhibit P 6, mentioned separate flat rates for each separate year also.
He did so because he consulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately.
Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exhibits 1100 P 4 and P 5.
All of them were acting together with the object of getting the contract though they were submitting three separate tenders.
The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat rate for four years as called for by Exhibit P 9, but accused 2, the author of all these tenders, did not do it in Exhibit P 3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the combined four years.
lie must have done so as he was shown the tender Exhibit P section The question arises whether the circumstance that the accused Patel and Habibur Rahrnan and Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he could not have departed from the method adopted by him in preparing Exhibits P 4 and P 5 unless and until he had seen Exhibit P 6.
We are clearly of the opinion that from the premises stated this inference does not necessarily follow.
Doongaji even after reading Exhibit P 9, could not make up his mind whether to submit the tender with one flat rate for all the four years or whether to submit it by giving sepa rate flat rates for each of the four years and made enquiry from the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also.
Patel who has admittedly considerable experience of distill ery contracts and about the method of submitting tenders might very well have thought that it was best to quote a flat rate for all the years as well as a flat rate for each year separately.
The circumstance that he did not do so in the other two tenders prepared by him does not materially advance the prosecution case.
The very object of submitting several tenders on behalf of three persons acting in unison was to indicate to the excise authorities that they were being submitted by three different persons.
If there were no variations whatsoever between those tenders that would have defeated the very purpose of submitting them.
More over, a variation of this trifling nature between Exhibits P 3A and P 4 1101 and P 5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it could not have been made except without a look at the tender of Doongaji.
The circumstance is of a neutral charac ter and the trial magistrate and the learned Sessions Judge gave undue importance to it, being obsessed with the idea that such a quotation of flat rates for each year could not be mentioned in a tender by a contractor merely on a con struction of Exhibit P 9 and without any further inquiry or without seeing the tender of somebody else who had followed that method.
The next circumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji 's rates.
It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman 'srates were higher than Zakirur Rahman 's by six pies and this variation was constant throughout, that in Patel 's original tender which must have followed the same system his rates would be lower than Habibur Rahman 's by three pies through out.
Exhibit P 3A, however, shows that this is not so.
Patel abandoned the system when he found that his rates on his original scheme would be higher than the correspond ing rates of Doongaji.
Learned Advocate General contended that it was impossible for Patel unless he had seen Exhibit P 6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Exhibit P 6 and the circumstance that in not a single case he has quoted a higher rate than Exhibit P 6 is conclusive of the fact that he had done so after he had seen Exhibit P 6.
It was also said that there is no satisfactory explana tion why Patel abandoned the scheme adopted by him in 1102 drawing up Exhibits P 4 and P 5 and his original tender.
In our view, this circumstance again is not so strange or peculiar as was made out by the learned Advocate General or in the courts below.
In the first place, there is no material whatsoever for the assumption that the so called original tender was drawn up on the same scheme as Exhibits P 4 and P 5 or that there was a constant variation in rates between it and Habibur Rahman 's tender.
It has been assumed on mere surmise that the first five rates in the tender, Exhibit P 3A, are the rates that had been originally quoted.
The original tender is not forthcoming and there is no evidence at all about its contents.
Moreover, in the depo sition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery contract were called for, the rates quoted by Ratanshah were lower than his rates for all items.
He, however, voluntarily added that Ratanshah obtained his rates of the previous contracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was not only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders.
From this statement it is quite clear that even without seeing the tenders of differ ent tenderers a contractor may quote rock bottom rates of all items on his own calculation or impelled by the desire of taking the contract anyhow.
We do not follow why Patel could not do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji.
If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than the rates of others, it may well be that he may quote lower rates in respect of all items.
It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies 1103 than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did not alter the rates of those items as originally submit ted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he de parted from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman.
It is no doubt true that Patel did not adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P 6 and he wanted to underbid Doongaji.
As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had not been submitted by one and the same person.
Be that as it may, a closer examination of the tenders of Doongaji and Patel completely negatives the theory of the courts below.
The rates quoted in the first five items of Exhibit P 145 are lower than the rates of Doongaji by 102, 69, 18, 12 and 9 pies respectively.
Even in the subsequent quotations except in one case where the disparity in the tales of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies.
Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit.
If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit.
The learned Advocate General could not suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs, 2 10 6 when the rate of Doongaji was Rs. 3 3 0 1104 He could easily raise the quotation to Rs. 3 and similarly in all other cases he could have underbid Doongaji by 2, 3 or 6 pies at the most.
He need not have maintained a dis parity of 9 to 11 pies between his rates and the rates of Doongaji.
In our opinion, therefore, no conclusion of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R.S. Patel which would estab lish that Exhibit P 3A had been prepared by having a look at Exhibit P 6.
Another circumstance on which reliance was placed was that certain rates in Exhibit P 3A are lower than the corre sponding rates in Exhibit P 6 by only one or two pies.
There is no doubt that one or two rates are lower by two pies than the rates in Exhibit P 6 but nothing follows from that innocent circumstance, unless one starts with a pre sumption of guilt.
Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been copied from Exhibit P 6.
The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for the prosecution to establish his guilt conclusively.
Next it was urged that in the covering letter Exhibit P 3 sent by Patel he mentions three appendices numbered 1, 2 and 3, The same expression finds place in the covering letter Exhibit P 4 of Habibur Rahman and Exhibit P~5 of Zakirur Rahman, that appendices 1 to a of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel 's case; on the other hand, instead of appendix 1, Patel has appendix 1 (a) and 1 (b) and the number of his appendices thus goes up to four and this departure from Exhibits P 4 and P 5 came about because of his having seen Exhibit P 6 and the number of appendices annexed to it.
It was urged that the original tender of Patel must have contained three appendices like those of Habibur Rahman and 1105 Zakirur Rahman and not appendix l(a) and l(b) as now found and that this circumstance showed substitution of the 'tender.
The learned magistrate, in our opinion, in giving importance to this circumstance mislead himself completely.
In the first place, it is not accurate to say that the expression appendices 1, 2 and 3 was common to the covering letters Exhibts P 4 and P 5.
In Exhibit P 5 the appen dices are marked A, B and C. Therefore, no uniform method was adopted by Patel in marking the appendices to the ten ders, Exhibits P 4 and P 5.
Secondly, there is no conflict in the expression of the appendices of Habibur Rahman and Patel.
They have been marked as 1, 2 and 3 and a mere subdi vision of the first appendix into (a) and (b) could not be taken to be a departure from the method adopted in the description of the appendices.
It may further be observed that the covering letter signed by Patel mentions four appendices, while the covering letters of Habibur and Zaki rur Rahman only mention three appendices.
The trial magis trate as well as the Sessions Judge ignored all these dif ferences in the method of the description of the appendices and assumed that they had been uniformly described.
The result therefore is that all these so called peculiar features found by the courts below in Exhibit P 3A should be eliminated from consideration and it must be held that there are really no circumstances inconsistent with Exhibit P 3A being a genuine document.
It could have been made out without looking at Exhibit P 6.
In this view of the case the whole basis on which the judgments of the courts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion that the facts did not on any just or legal view of them warrant a conviction, and al though the proceedings are taken to have been unobjection able in form, justice has gravely and injuriously miscar ried.
We therefore set aside the conviction of both the appellants on the second charge and acquit them, 142 1106 In order to appreciate the third charge, it is necessary to set out the terms of Exhibit P 24 which it is said was antedated in order to create evidence for the defence of the accused and to injure Amarnath.
It is in these terms: Congress Nagar, Nagpur, 20th November, 1946.
The Commissioner of Excise, C.P. & Berar, Nagpur.
Dear Sir, I beg to submit few of my complaints for such action as you may be pleased to take, which are as under.
I went to see Mr. Amarnath last week, at his residence in connection with Seoni Distillery work.
I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files.
From the papers I could recognize my tender open on the table in front of them.
As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me.
Same way after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9 30 p.m. when I saw Mr. Mehta the ex manager of Mr. Edulji (who is also the manager of Seoni Electric Co.) with Mr. Amarnath near table with the same file of the tender.
No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this af fair.
I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with.
Hoping to get justice, Yours faithfully, Sd.
R.S. Patel.
" 1107 The words "Congress Nagar, Nagpur, 20th November, 1946" are in manuscript, while the rest of the letter has been typed.
The digit 6 of the year 1946 has been over written on digit 7 written in continental style and it is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6.
It was contended by the learned Advocate General, and this is the finding of the courts below, that this letter was written some time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to use it as evidence in defence.
The point for decision is wheth er there is any evidence whatsoever to establish this act.
We have not been able to discover any such evidence on the record; on the other hand the intrinsic evidence in the letter proves that most likely it came into existence on the date it bears.
The relevant facts are that the tenders were opened by accused Nargundkar on the 11th November, 1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them.
It is alleged in this letter that "last week", i.e., during the week commencing on the 11th November, 1946, accused Patel went to see Amarnath and there he saw Edulji Doongaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr. Mehta, ex manager of Edulji Doongaji, was with him and the tender file was lying there.
It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was not tampered with and he got justice.
The whole purpose and object of this letter was to protect himself against any underhand dealing in the granting of the contract.
In his statement under section 342, Cr. P.C., Patel said that he saw Amarnath on the morning of the 15th or 16th November, 1946, and he met Amarnath at Seoni at the distillery prem ises on the 16th November, 1946, and on the same 1108 day he met him at about 9 p.m. at the Seoni dak bungalow and that he again met him on the 17th November, at 10 a.m.
He also stated that he had gone to see Amarnath at his resi dence at Nagpur between the dates 12th and 18th November.
It was contended by the learned Advocate General that his statement was inconsistent with the recitals contained in Exhibit P 24.
We see nothing inconsistent between this statement and the recitals.
If accused Patel saw Amarnath on the 12th, the letter having been written on the 20th November, it would be quite a correct thing to say that he saw him "last week" and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th November.
That would be about a week after the first visit.
To draw any conclusion adverse to the accused from a slight inaccu racy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessari ly stretching a point against the accused.
The recitals in the letter, true or false, are quite consistent with the letter bearing date 20th November, 1946.
The magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct.
We have not been able to understand how the vagueness about the date could lead to the conclusion arrived at.
Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter.
It was said that the normal experience is that it becomes a subconscious habit to automatically write the year correctly when several months have elapsed after the change of the year and that by sheer force of habit the correct year must have been put down when the date was entered in the letter Exhibit P 24 and that the figure was subsequently changed to 6 and this fact was an indication that the letter was written some time in the year 1947.
In our view this argument again involves an element 1109 of conjecture.
The mistake may well have been inadvertent ly made and the correction made there and then.
That such mistakes are not very uncommon or unusual and occur in official documents is fully established on the record, in para 93 of the judgment of the learned Sessions Judge and it is said as follows: "The appellants have produced a file which is Exhibit ID 35.
It contains a sheet which bears pages 9 and 10.
On the 10th page there are two office notes one is written by A.M. Naidu and the other by the appellant Nargundkar.
A.M. Naidu below his signature has written '6 4 1948 '.
The appellant Nargundkar below his signature has written '6 4 1947 '.
The other notes in the office file show that the correct date of the two signatures was 6th August, 1947.
Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year.
The appellants contend that such mistakes are possible.
Nobody can deny that such mistakes are possible; but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also.
" We have looked in vain for other evidence to prove that the letter was not written on 'the date it bears.
Even Gadgil could not explain why he said that the letter was written in July, 1946.
It is clear that he is not telling the ' truth in this respect.
The endorsement made on the letter by accused Nargundkar clearly bears the date 21st November, 1946, and if this letter was not given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary course have made some note either on the letter or in the receipt register of his office when that letter was received by him.
Then it was said that this letter was not in the file of the tenders which were kept separate.
The Commissioner had noted that the letter be filed and he sent it to the office.
If the office people did not put it in the file, from that circum stance no adverse inference could 1110 be drawn as to the date that the letter bears.
It is dear that no forger would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure "7" intact and thus leave evidence of its suspicious character writ large on its face.
There was no hurry about it, and a second letter without the alteration could easily have been typed.
Next it was argued that the letter was not typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946.
On this point evidence of certain experts was led.
The High Court rightly held that opinion of such experts was not admissible under the Indian Evidence Act as they did not fall within the ambit of section 45 of the Act.
This view of the High Court was not contested before us.
It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it.
The trial magis trate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had not reached Nagpur till the end of December, 1946, obviously the letter was antedated.
Their conclusion based on inadmissible evidence has therefore to be ignored.
It was further held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.
The accused Patel, when questioned about this letter, made the following statement: "Exhibit P 31 was typed on the office typewriter article B. Exhibit P 24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase.
As this was my personal complaint no copy of it was kept in the Correspondence Files Exhibit P 34 and Exhib it P 35 just 1111 as there is no copy in these files of my tender Exhibit P 3A . . .
In the month of September, October and November, 194t5, several machines were brought for trial from various parties in our of rice till the typewrit er article A was purchased by National Industrial Alcohol Ltd. Company.
" If the evidence of the experts is eliminated, there is no material for holding that Exhibit P 24 was typed on article A.
The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.
Such use of the statement of the accused was wholly unwar ranted.
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not writeen on the date it bears.
For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Exhibit P 24 was antedated and that being so, the charge in respect of forgery of this letter also fails.
Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge.
The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his rival contractors.
We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel made certain allegations against him.
We therefore set aside the conviction of both the appellants under the third charge and acquit them.
1112 The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.
Appellants acquitted.
Agent for the appellant in Criminal Appeal No. 56 of 1951: Ganpat Rai.
Agent for the appellant in Criminal Appeal No. S7 of 1951: Rajinder Narain.

summary/full:
In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.
It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
vs Hodge [(1838) referred to.
An admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
It must be used either as a whole or not at all.


judgement:
minal Appeal No. 49 of 1956.
Appeal by special leave from the judgment and order dated October 13, 1954, of the Madras High Court in Criminal Revision Case No. 267 and 1954 154 1212 (Criminal Revision Petition No. 249 of 1954) arising out of the judgment and order dated January 12, 1954, of the Court of the District and Sessions Judge as Tiruchirapalli in Criminal Revision Petition No. 17 of 1953.
R. Ganapathy Iyer and G. Gopalakrishnan, for the appellant.
No one appeared for the respondents.
August 25.
The Judgment of the Court was delivered by SINHA J.
The only question for determination in this appeal by special leave, is whether the petition of complaint, disclosed a prima facie offence under section 295 of the Indian Penal Code.
The courts below have taken the view that it did not, and on that ground, it stood summarily dismissed, before evidence pro and con had been recorded.
It appears that the appellant filed a petition of complaint in the court of the Additional First Class Magistrate, Tiruchirappalli, against the respondents, three in number.
The petition of complaint alleged inter alia that the first accused is the leader of Dravida Kazakam (a community of persons who profess to be religious reformers, one of whose creeds is to carry on propaganda against idol worship), and as such, be was out to " vilify a certain section of the Hindu community and do propaganda by holding meetings and writing articles.
" It is further alleged in the petition of complaint that " recently, the first accused announced his intention of breaking the image of God Ganesa, the God sacred to the Saiva Section of the Hindu Community on 27th May, 1953, in a public meeting at Town Hall.
This caused terror commotion in the mind of the Saivite Section of the Hindu Community.
" The complainant claims to be a Saivite.
The complainant further alleged in his petition that on May 27, 1953, at about 5 30 p.m., the accused broke an idol of God Ganesa in public at the Town Hall Maidan, and before breaking the idol, lie made a speech, and expressly stated that he intended to insult the feelings of the Hindu community by breaking the idol of God 1213 Ganesa.
The said act of breaking the idol was alleged to have been actively abetted by instigation and aid by the other two accused persons, who also made speeches.
The petition of complaint also alleged that the said act of breaking the image of God Ganesa was done with the intention of insulting the religious feelings of certain sections of the Hindu community, who hold God Ganesa in veneration, and that the acts complained of, amounted to offences under sections 295 and 295A of the Indian Penal Code.
On those allegations, the petition of complaint (dated June 5, 1953) prayed that processes might issue against the three accused persons.
In the list of witnesses appended to the petition, figured the Additional District Magistrate, the Sub Divisional Magistrate, the Town Sub Inspector of police, Tiruchi Fort, and Sub Magistrate, Tiruchy Town.
On the same date, the learned magistrate examined the complainant on oath.
The complainant made statements in support of his allegations in the petition of complaint.
Thereupon, the learned magistrate directed that the petition of complaint be sent to the Circle Inspector of police, Trichy, for inquiry and report under section 202, Criminal Procedure Code.
On June 26, 1953, on receipt of the police report which " showed that though the occurrence as alleged had taken place it was a point of law if the act of the accused would amount to any offence ", the learned magistrate passed his order, dismissing the complaint under section 203 of the Criminal Procedure Code.
In the course of his order, the learned magistrate observed as follows: "The mud figure of Ganesa alleged to have been broken by accused is not an object held sacred or worshipped by any class of persons.
Simply because it resembled the God Ganesa held in veneration by a section it cannot become an object hold sacred.
Even Ganesa idol abandoned by the people as unworthy of worship loses its sanctity and it is no longer an object held sacred by anybody, since such given up idols are found in several places of defilement.
It is not an offence if a person treads union any such abandoned idol.
Therefore the breaking of mud figure of Ganesa 1214 does not amount to an offence under Section 295, Indian Penal Code. " "The speeches delivered by the accused with deliberate and malicious intention of outraging religious feelings of a community, no doubt amount to an offence under Section 295 A, Indian Penal Code.
But for laying a complaint under this section the sanction of the Government is necessary.
This section has been clearly mentioned in the complaint and it cannot be said it was included by oversight.
Without a proper sanction an offence under this section is unsustainable.
I therefore see no sufficient ground for proceeding with the complaint and I dismiss the same under section 203, Criminal Procedure Code.
" The complainant moved the learned Sessions Judge of Tiruchirappalli, by his petition in revision, filed on July 9, 1953, under sections 435 and 436 of the Criminal Procedure Code, for setting aside the order of dismissal of the complaint.
In the petition filed in the Court of Session, the complainant stated that the petition was confined to the complaint in respect of the alleged offence under section 295, Indian Penal Code, and that it did not seek to revise the order of dismissal of the complaint in respect of an offence tinder section 295 A of the Indian Penal Code.
The learned Sessions Judge dismissed the petition by an order dated January 12, 1954, holding, in agreement with the learned magistrate, that the acts complained of did not amount to an offence under section 295, Indian Penal Code.
In the course of his order, the learned Sessions Judge made the following observations: " I agree with the learned Magistrate that the acts complained of do not amount to an offence.
The accused, who profess to be religious reformers in a campaign against idolatory organized a public meeting at which they broke an earthern image of the God Ganesa.
The particular image broken was the private property of the accused and was not in itself an object held sacred by any class of persons; nor do I think that idol breaking by a non believer can reasonably be regarded by a believer as an insult to his religion ; and the ingredients of Section 295, Indian Penal Code, are therefore not made out.
" 1215 The complainant then moved the High Court in its revisional jurisdiction under section 439 of the Code of Criminal Procedure.
The matter was heard by a learned single Judge of that Court.
The learned single Judge also agreed with the courts below in the reasons given by them for dismissing the petition of complaint, and refused to order further inquiry.
In the course of his judgment, he discussed the question whether a mud image of God Ganesa, came within the scope of the words " any object held.
sacred by any class of persons " in section 295, and he answered the question in the negative.
In this connection, he referred to the judgment of the Full Bench of the Allahabad High Court in the case of Queen Empress vs Imam Ali (1), which is directly an authority for this proposition only that the word 'object ' in section 295 of the Indian Penal Code, does not include animate objects.
That case dealt with the complaint of killing a cow.
Edge C. J. in the course of his judgment, made an observation that the word ' object ' should be interpreted ejusdem generis with the words 'place of worship ', and by way of an example of such an inanimate object, he mentioned an idol.
That observation, if anything, is not against the complainant.
The learned single Judge also referred to the case of Romesh Chunder Sannyal vs Hiru Mondal (2), which also is not in point inasmuch as it dealt with the case of a dedicated bull.
But the learned Judge seemed to draw from those cases the inference which may be stated in his own words, as follows: " Interpreted like that, it would mean that the section would apply only to cases where an idol in a temple is sought to be destroyed, damaged, or defiled.
The words 'any object held sacred by any class of persons ' even otherwise will apply only to idols in a temple or when they are carried out in processions on festival occasions.
The object held sacred ' will mean only the idols inside the temple and when they are taken out in processions on festival occasions.
In such circumstances as in the present case the breaking is nothing more than a doll taken from the shop.
(1) All. 150.
(2) Cal.
1216 Though the intention of the respondents may be to decry the feelings and wound the susceptibilities of a large section of the people, still the intention alone is not sufficient unless it is carried out by an act which must fall within the scope of this section.
The dolls in the shop, though they may resemble several of the deities in the temple, cannot be held to be objects held sacred by any class of persons.
In modern society there are several images of the deities in the drawing rooms of several houses.
It cannot for a moment be suggested that these images are objects held sacred.
These have got to be distinguished from the objects held sacred, which can only be when they are duly installed in a temple and from which they are subsequently taken out in procession on festival occasions.
What was broken therefore by the respondents is nothing more than a doll taken either from a shop or made for the occasion, and it cannot by any means be called ail object held sacred.
The offence is not made out and the dismissal is therefore justified.
" The petitioner moved the High Court for the necessary certificate of fitness for making an appeal to this Court.
The learned Judge, who had heard the case on merits, also dealt with this application, and refused to certify that this was a fit case for appeal to this Court under article 134(1)(c) of the Constitution.
The petitioner moved this Court and obtained the necessary special leave to appeal.
It is regrettable that the respondents have remained ex parts in this Court.
The learned counsel for the appellant has urged that the courts below had unduly restricted the meaning of the words of section 295, particularly, the words " any object held sacred by any class of persons ", and that the words have been used in their fullest amplitude by the Legislature, in order to include any object consecrated or otherwise, which is held sacred by any class of persons, not necessarily belonging to a different religion or creed.
In the first place, whether any object is held sacred by any class of persons, must depend upon the evidence in the case, so also the effect of the words " with the intention of thereby insulting the religion of any class 1217 of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion.
" In this case, the facts alleged in the petition, do not appear to have been controverted, but the learned magistrate, as also the learned Sessions Judge and the learned Judge in the High Court, have thrown out the petition of complaint solely on the ground that the image of God Ganesa, treated by the respondents as alleged by the complainant, could not be said to be held sacred by any class of persons.
In the instant case, the insult alleged was by destruction of the image of God Ganesa.
Apart from the question of evidence, which had yet to be adduced, it is a well knonwn fact that the image of Lord Ganesa or any objective representation of a similar kind, is held sacred by certain classes of Hindus, even though the image may not have been consecrated.
The learned Judge in the Court below, has given much too restricted a meaning to the words any object held sacred by any class of persons ", by holding that only idols in temples or idols carried in processions on festival occasions, are meant to be included within those words.
There are no such express words of limitation in section 295 of the Indian Penal code, and in our opinion, the learned Judge has clearly misdirected himself in importing those words of limitation.
Idols are only illustrative of those words.
A sacred book, like the Bible, or the Koran, or the Granth Saheb, is clearly within the ambit of those general words.
If the courts below were right in their interpretation of the crucial words in section 295, the burning or otherwise destroying or defiling such sacred books, will not come within the 'Purview of the penal statute.
In our opinion, placing such a restricted interpretation on the words of such general import, is against all established canons of construction.
Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section.
Nor is it absolutely necessary that the object, in order 1218 to be held sacred, should have been actually worshipped.
An object may be held sacred by a class of persons without being worshipped by them.
It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong.
The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds.
Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court.
As a result of ' these considerations, it must be held that the courts below have erred in their interpretation of the crucial words of section 295 of the Indian Penal Code.
But the question still remains whether, even after expressing our strong disagreement with the interpretation of the section by the courts below, this Court should direct a further inquiry into the complaint, which has stood dismissed for the last about 5 ),ears.
The action complained of against the accused persons, if true, was foolish, to put it mildly, but as the case has become stale, we do not direct further inquiry into this complaint.
If there is a recurrence of such a foolish behaviour on the part of any section of the community, we have no doubt that those charged with the duty of maintaining law and order, will apply the law in the sense in which we have interpreted the law.
The appeal is, therefore, dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The words " any object held sacred by any class of persons" occurring in section 295 Of the Indian Penal Code are of general import and cannot be limited to idols in temples or idols carried on festival occasions.
Not merely idols or sacred books, but any other object which is regarded as sacred by any class of persons, whether actually worshipped or not, fall within the description.
Queen Empress vs Imam Ali, All. 150 and Romesh Chunder Sannyal vs Hiru Mondal, Cal.
852, considered.
Consequently, in a case where the allegation in the petition of complaint was that one of the accused broke the idol of God Ganesa in public and the two others actually aided and abetted him with the intention of insulting the religious feeling of the complainant and his community who held the deity in veneration and the trial Magistrate, on receipt of the Police report that the alleged occurrence was true, dismissed the complaint under section 203 of the Code of Criminal Procedure holding that the breaking of a mud image of Ganesa was not an offence under section 295 of the Indian Penal Code and the Sessions judge and the High Court in revision, agreeing with the view of the trial Court, refused to direct further enquiry : Held, that the courts below were clearly in error in inter preting section 295 of the Indian Penal Code in the way they (lid, but since the complaint stood long dismissed, no further enquiry need be directed into the matter.
Held, further, that the Courts must be circumspect in such matters and pay due regard to the religious susceptibilities of different classes of persons with different beliefs, whether they shared those beliefs or not or whether those beliefs in the opinion of the Court were rational or not.


judgement:
ivil Appeal No. 4 177 of 1989.
From the Judgment and Order dated 28.3.1989 of the Madras High Court in O.S.A. No. 48 of 1989.
K.K. Venugopal, K. Chandra Mouli, Ms. Meenakshi Sundaram and K.K. Mani for the Appellant.
Dr. Y.S. Chitale, V.G. Pragasam, Satya Mitra Garg, V. Prakash and R. Venkataramani for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The question raised in this appeal is whether the agent after revocation of his authority is entitled to remain in possession of the premises of the principal and interfere with the business thereof.
The learned single Judge of the Madras High Court in Original Suit C.S. No. 1317 of 1988 has granted temporary injunction restraining the respondent from interfering with the appellant 's transport business.
But the Division Bench by judgment delivered on March 28, 1989, vacated that temporary injunction.
The present appeal is directed against the judgment of the Division Bench.
The facts are substantially undisputed.
The appellant company under the name as Southern Roadways Ltd. is engaged in the business of transport of goods and parcels to differ ent places in Southern India.
It has appointed commission agents at various stations for the purpose of carrying on its business.
S.M. Krishnan respondent was one such agent appointed at Madras city.
Clause III of the agreement by which he was appointed provides that the respondent should arrange a suitable godown and engage employees.
Clause XI provides for his removal from service at any time without notice.
It also provides that upon removal of the agent the company could occupy the godown.
The company could also utilise the services of employees engaged by the respondent.
As per the agreement perhaps at the 413 suggestion of the respondent, the Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras.
The godown was put in possession of the respondent for the purpose of carrying on his agency business of the company.
In the course of the company 's audit, it was discovered that the respondent had mismanaged the business and misap propriated the income of the company.
By letter dated Octo ber 13, 1988, the company terminated his agency with effect from October 14, 1988.
He was informed that the company would be taking possession of the godown and carrying on the business on its own.
By subsequent letter, he was also intimated that the company has taken possession of the godown on October 15, 1988 and another agent called R. Sundarajan, was appointed in his place.
The respondent however, prevented R. Sundarajan and also the company from carrying on business at the godown premises.
The company, therefore, had to institute a suit for declaration of its right to carry on business in the said premises.
Permanent injuction restraining the respondent from interfering was also sought for.
The suit was based on two separate grounds.
The first related to legal right of the company to carry on its business after termination of agency of the respondent; the second concerned the factum of taking actual possession of the premises on October 15, 1988.
Pending suit, the company moved the High Court for temporary injunction.
The temporary injunction restraining the respondent from interfering with the possession of the premises and the business thereof.
The learned single Judge (M. Srinivasan, J.) acceded to that request.
The judge said: "As pointed out already, in this case, there is no denial of the lease arrangement between the owner of the premises and the plaintiff.
The defendant does not claim to be the owner of the premises nor does he put forward any rival title as against the plaintiff.
The only claim of the defendant is that he is in pos session and that he has been paying the rent to the owner.
He does not claim that he took possession as a lessee from the owner.
Though there is a specific averment in the plaint and the affidavit of the plaintiff that there is a lease arrangement between the plaintiff and the owner, there is no denial of the same by the defendant.
In these circumstances, the defendant cannot claim that he is in posses sion pursuant to any right enured in him.
" 414 As to the possession of the premises, he said: "The claim made by the plaintiff that it took possession on 15.10.1988 is acceptable in view of the fact that the defendant was never the lessee under the owner of the premises.
The defendant was only looking after the business as an agent of the plaintiff and as such he was permitted to enter the premises and he cannot claim independent possession.
" Finally, he concluded: "In the circumstances of the case, there can be no doubt that the plaintiff has been in legal and actual possession of the premises on the date of suit.
The fact that the business has been temporarily shifted to another place in view of the threat meted out to the plain tiff 's agent will not disentitle the plaintiff to get injunction.
The plaintiff is certainly entitled to carry on its business at No. 10, Srinivasan Road, T. Nagar, Madras 600017, having taken the premises on lease.
It is ot open to the defendant to prevent the plaintiff from carrying on such business.
" The respondent was thus restrained by means of temporary injunction from interfering with the company 's transport business in goods and parcels at the suit premises.
The respondent took up the matter in appeal before the Division Bench of the High Court.
The Division Bench con sisting of Sathidev and Padmini Jesudurai, JJ., accepted the appeal and vacated the temporary injuction.
The conclusion of learned Judges is largely based on the actual possession of the premises claimed by the Company.
They found it hard to accept that claim and observed: "The plaintiff will not be entitled to the relief sought for unless it establishes that its claim that possession of the property was handed over to it on 15.10.1984 is true.
The defendant has consistently been contending that possession was not handed over to the plaintiff on 15.10.1984 and that he continues to be in actual and physical possession of the property even now.
No material has been placed before the Court to substantiate the claim of the plaintiff that possession was taken over on 15.10.1984.
" 415 They continued: "In the face of these documents and in the absence of any material to show that posses sion of the suit property was taken by the plaintiff on 15.10.1988, it would be impossi ble for this Court to grant the plaintiff, the relief of injuction." As to the company 's right to treat the respondent as trespasser, the Division Bench observed: "Before the defendant could be characterised as a trespasser, the validity of the termina tion of the agency and the rights of the parties, following that, have also to be determined and this could be done only during trial." At the outset, we may state that we are not so much concerned with the rival claims relating to actual posses sion of the suit premises.
Indeed, that is quite irrelevant for the purpose of determining the rights of the company to carry on its business.
Mr. Venugopal, learned counsel for the appellant also discreetly did not advert to that contro versy.
He, however, rested his case on certain facts which are proved or agreed.
They may be stated as follows: The company was and is the tenant of the suit premises and has been paying rent to the owner.
The lease in respect of the premises has been renewed up to November 22, 1983.
It was the company which has executed the lease and not the respondent.
The respondent as agent was allowed to remain in possession of the premises.
It was only for the purpose of carrying on company 's business.
His agency has been termi nated and his authority to act for the company has been put an end to.
These facts are indeed not disputed.
On these facts the contention of counsel is that when the agency has been terminated, the respondent has no legal right to remain in the premises or to interfere with the business activities of the company.
The force of this argument cannot be gainsaid.
Counsel, in our opinion, appears to be on terra firma.
The principal has right to carry on business as usual after the removal of his agent.
The Courts are rarely willing to imply a term lettering such freedom of the principal unless there is some agreement to the contrary.
The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency.
Nor does it preserve right for him to interfere with the com 416 pany 's business.
On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual.
The company under the terms of the agreement is, therefore, entitled to assert and exercise its right which cannot be disputed or denied by the respondent.
Even otherwise, under law revocation of agency by the principal immediately terminates the agent 's actual authori ty to act for the principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the principal 's property under section 22 1.
The agent 's lien on principal 's property recognised under section 22 1 could be exercised only when there is no agreement inconsistent with the lien.
In the present case the terms of the agreement by which the re spondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency.
Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal 's business activities.
There is yet another significant factor to be borne in mind when we deaf with the rights of an agent.
An agent who receives property or money from or for his principal obtains to interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
Long ago, Lord Cottenham, L.C. (Foley vs Hill; , 1843 60 All E.R. (Reprint) 16 at 198) said: ".
So it is with regard to an agent dealing with property; he obtains no interest himself in the subject matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transac tion for which he is engaged.
" Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal 's title to property nor he can convert it into other kind or use.
Fridman 's Law of Agency (5th Edition page 150) also supports this view: "Respect of Principal 's title: "The agent cannot deny the title of the prin cipal to goods, 417 money, or land possessed by the agent on behalf of the principal.
The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal." As to the nature of agent 's possession in respect of principal 's property, this Court in a recent judgment ren dered in Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 said at 643: "It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defend ant 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyell vs John Lawson Kennedy, [1889] 14 HL (E) 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation.
The plain tiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respond ent for himself, or on his own behalf, any more than during her lifetime." Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, LR 12 Eq Cas 149, arising out of the circumstances similar to the.
present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
The mother (the principal) had also by then died after pur porting by her will to devise the disputed lands to the defendants upon certain 418 trusts.
The claim of the plaintiff was dis missed on the plea of adverse possession.
Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes.
" The agent had thus lost his title by reason of his own possession as agent of the principal.
" We wish to add that it is not every agent who is in a fiduciary position vis a vis his principal.
For example is A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply.
Like wise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise.
What we want to emphasise is, in all cases of general agency, the rela tion may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent.
It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies.
Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation.
(See Modern Law Review, Vol.
17 pp. 31 32).
The crux of the matter is that an agent holds the prin cipal 's property only on behalf of the principal.
He ac quires no interest for himself in such property.
He cannot deny principal 's title to property.
Nor he can convert it into any other kind or use.
His possession is the possession of the principal for all purposes.
As the Kerala High Court in Narayani Amma vs Bhaskaran Pillai, AIR 1969 Kerala 214, observed at 217: "The agent has no possession of his own.
What is called a caretaker 's possession is the possession of the agent.
" So much is, we think, established law as regards agent 's right to property belonging to the principal.
Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions: (i) Abdul Nabi Sahib vs Bajab Sahib and Anr., AIR 1944 Mad 221 and (ii) 419 Jemma vs Raghu, AIR 1977 Orissa 12.
In the former case of the Madras High Court, the suit was for a permanent injunc tion restraining the defendant from interfering with the plaintiff 's peaceful possession and enjoyment of the suit properties and performance of the religious services.
The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as donee.
He has also set up title by adverse possession.
On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relief upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law.
We have al ready stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non suit the principal on the possessory title as agent.
The second case in Jemma vs Raghu, referred to us is the decision of the Orissa High Court.
That case dealt with the general principle that the plaintiff who is not in posses sion of the suit premises is not entitled to relief of injunction.
The plaintiff must ask for recovery of posses sion.
But this principle has no application with regard to dispute between the principal and agent in respect of prin cipal 's property.
In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the company 's business.
The case, therefore, deserves the grant of temporary injunction.
The learned single Judge of the High Court in our judgment, was justified in issuing the injunction.
The Division Bench of the High Court was clearly in error in vacating it.
In the result, we allow the appeal with costs.
In rever sal of the order of the Division Bench, we restore the temporary injunction granted by learned single Judge of the High Court.
Y. Lal Appeal allowed.

summary/full:
The appellant company is engaged in the business of transport of goods and parcels in Southern India and for that purpose has appointed agents at various stations.
The respondent was one such agent appointed at Madras.
As pro vided in clause III of the Contract, the respondent was to arrange a suitable godown and engage employees.
The Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras and the same was put in possession of the respondent for the purpose of carrying on his agency business of the Company.
During the course of the Company 's audit, it transpired that the Respondent not only mismanaged the business but had misappropriated some of the income of the company.
The appellant, therefore, terminated his agency with effect from 14.10.1988 in terms of clause XI of the Contract and in formed him that the company would be taking possession of the Godown premises for carrying on the business on its own, as provided in the contract.
Thereafter the respondent was informed by a letter that the company has taken possession of the Godown on 15.10.88 and another agent R. Sundarajan had been appointed in his place.
But the respondent prevent ed R. Sundarajan and also the company from carrying on the business at the godown premises.
The company, therefore, filed a suit for declaration of its right to carry on the business in the premises and for a permanent injunction restraining the respondent from interferring with its pos session on the ground that after the termination of the agency of the respondent, the company acquired a right to carry on the business of the company and further the company had since acquired the possession of the premises on 15.10.88.
Pending decision of the suit, the appellant prayed for the issuance of a temporary injunction.
The Trial Judge of the Madras High Court granted temporary injuction re straining the 411 respondent from interfering with the appellant 's business but on appeal by the respondent the Division Bench of the Madras High Court vacated that temporary injunction.
Hence this appeal by the appellant company.
Allowing the appeal, this Court, HELD: Under law, revocation of agency by the Principal immediately terminates the agent 's actual authority to act for the Principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the Principal 's property under section 221.
The agent 's lien on Principal 's property recog nised under section 221 could be exercised only when there is no agreement inconsistent with the lien.
[416B C] In the present case, the terms of the agreement by which the respondent was appointed as agent, expressly authorise the company to occupy the godown upon revocation of agency.
Secondly the lien, in any event, cannot be utilised or taken advantage of to interfere with Principal 's business activi ties.
[416C D] An agent who receives property or money from or for his Principal obtains no interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
[416E] (See Foley vs Hill, All E.R. Reprint 16 at 198; It is not every agent who is in a fiduciary position vis a vis his principal.
For example if 'A ' appoints 'B ' to be his agent merely to sign a memorandum and places no particular trust in 'B ' the doctrine of fiduciary relations would not apply.
Likewise where the Principal authorises an agent to do particular and specified acts, the doctrine of fiduciary relation may not arise.
[418C D] In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the Company 's business.
The case, therefore, deserves the grant of temporary injunction.
[419F G] 412 Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 at 643; Narayani Amma vs Bheska ran Pillai, AIR 1969 Kerala 214; Abdul Nabi Sahib vs Bajab Sahib & Anr., AIR 1944 Mad 221 and Jamma vs Reghu, AIR 1977 Orissa 12, referred to.