criminal appellate jurisdiction criminal appeal number 200 of
1956.
appeal by special leave from the judgment and order dated
july 20 1954 of the bombay high companyrt in criminal appeal
number 1596 of 1953 arising out of the judgment and order
dated september 23 1953 of the companyrt of the additional
chief presidency magistrate 3rd companyrt esplanade bombay
in case number 31/w of 1953.

p. gandhi and j. b. dadachanji for the appellant. j. umrigar and r. h. dhebar for the respondent. 1957. september 6. the following judgment of the companyrt was
delivered by
jagannadhadas j.-this is an appeal by special leave. the
appellant before us was companyvicted by the learned presidency
magistrate third companyrt esplanade bombay for the offence
of cheating under s. 420 read with s. 34 of the indian penal
code on three companynts of cheating viz. the first relating
to a sum of rs. 81000 the second relating to a sum of rs. 230000 and the third relating to a sum of rs. 236900.
he was sentenced by-the learned magistrate to two years
rigorous imprisonment and a fine of rs. 1000 on the first
count to twenty-two months rigorous imprisonment and a fine
of rs. 1000 on the second companynt and two months rigorous
imprisonment on the third companynt. it was directed that the
substantive sentences only on the second and third companynts
are to run companycurrently. the prosecution was initiated on a private companyplaint filed
by one louis anton companynea on june 30 1952 against four
persons of whom the appellant was designated therein as the
first accused and one santram as the fourth accused and two
other persons a. a. rowji and s. a. rowji as second and
third accused respectively. bailable warrants were issued
against all the four by the learned magistrate but it
appears that warrants companyld number be executed against accused
2 3 and 4. they were reported as absconding. the trial was
accordingly separated as against them and proceeded only as
against  the first accused  the appellant herein. the
convictions and sentences have been companyfirmed on appeal by
the high companyrt at bombay. the companyplainant is a businessman from goa and was the
director of a firm in goa which was trading in the name of
colonial limitada doing business in import and export. at
the relevant time there was severe scarcity of rice in goa. the companyplainant was accordingly anxious to import rice
urgently into goa. he got into touch with a friend of his
by name rosario carvalho in bombay who was doing business as
a companymission agent. carvalho in his turn got into touch
with one jasawalla who was also doing business of companymission
agent at bombay in the name of universal supply companyporation. this jasawalla was previously
in companyrespondence with the appellant about business in rice. the appellant was at the time in karachi and was doing
business in the name of atlas industrial and trading
corporation and also in the name of ifthiar ahmed company the
telegraphic address of the companyplainant was companyodingco and
that of the appellant was ifthy. as a result of exchange of
telegrams letters and telephone messages between jasawalla
and the appellant on one side jasawalla and the companyplainant
on the other followed up by direct companytacts between the
appellant and the companyplainant through telephone telegrams
and letters a companytract was brought about for purchase by
the companyplainant from the appellant of 1200 tons of rice at
the rate of pound 51 per ton to be shipped from karachi to
goa. the companytract appears originally to have been for
payment of the price in sterling at karachi. but it is the
prosecution case  which has been accepted by both the companyrts
below  that a subsequent arrangement was arrived at between
the parties by which the payment was to be made in bombay in
indian currency in view of the difficulties experienced in
opening a letter of credit in a bank at karachi through the
portuguese bank at goa. it is also the prosecution case
which has been accepted that the understanding was that 25
of the price was to be paid as advance by the companyplainant to
jasawalla as the agent of the appellant for this purpose and
that on receiving intimation thereof the appellant was to
ship the rice and that the balance of the purchase money was
to be paid on presentation of the shipping documents. it
appears that at a later stage the quantity of rice to be
supplied was raised to 2000 tons and advance to be paid to
50 of the total stipulated price. it is also the
prosecution case that the appellant represented at various
stages by telephone talks telegrams and letters to
jasawalla as well as to the companyplainant directly that he had
adequate stock of rice and that he had reserved shipping
space in certain steamers which were about to leave for goa
and that he was in a position to ship the rice on being
satisfied that the requisite advance was paid. it is in
evidence that on receiving such assurances the companyplainant
paid moneys as shown below to jasawalla and obtained
receipts from him purporting to be the agent of the
appellant. on july 23 1951 rs. 81000

on august 28 1951 rs. 230000

on august 29 1951  rs. 236900
all these amounts are held to have been received by the
appellant in due companyrse. it is admitted however. that no
rice was in fact shipped to the companyplainant and the amounts
have number been returned back to the companyplainant. the defence
of the appellant is to the effect that the amounts were number
in fact paid to any person who was his agent and number in fact
received by him at all and that he was unable to supply the
rice as the companyplainant did number companyply with the terms of the
contract by opening a letter of credit at karachi or paying
him in pakistani currency. this defence has number been
accepted and the appellant has been found guilty as charged
by the companyrts below. he was therefore companyvicted and
sentenced as above stated. it is necessary to set out somewhat in detail the essential
facts held to have been proved by the companyrts below to
appreciate the legal companytentions that have been urged before
us. as previously stated the companyplainant got into touch
with his friend carvalho of bombay to help him in getting
rice for companysumption in goa and carvalho in turn companytacted
jasawalla for the purpose. before that time jasawalla in
the companyrse of his usual business had received a letter ex. 0 dated june 5 1951 from the appellant offering that he
would be prepared to do business in rice if a letter of
credit is opened or cash payment is made in karachi. carvalho came to knumber of this from jasawalla and informed
the companyplainant. jasawalla also wrote a letter to the
complainant. the companyplainant sent a telegram showing his
willingness to open credit if 1200 tons of rice companyld be
shipped to goa. jasawalla wrote a letter ex. p dated
june 6 1951 to the appellant quoting the telegram of the
complainant and asking for an offer. the appellant by his
letter dated june 10 to jasawalla offered to supply as
much rice as he wanted and demanded 25 cash payment as
advance. after some tripartite companyrespondence the
appellant by his letter dated june 26 agreed to accept
money in bombay at the price of pound 51 per ton of rice. jasawalla by telegram dated july 5 1931 informed the
appellant that the goa party accepted the 25 arrangement. the appellant by a letter dated july 7 accepted the offer
but wanted 50 deposit and gave time till the 10th
suggesting that since the rice was scarce the deal must be
finished at once. jasawalla intimated this to the
complainant and asked him to start at once with money and
informed him that if there was delay the party at the other
end would claim damages. the appellant did number get any
information for the next few days. he accordingly sent one
santram  accused 4 in the companyplaint  to bombay as his agent
for discussing the matter in question and authorising him to
fix the deal on the spot. santram appears to have fixed the
bargain for shipping 1200 tons of rice on the companyplainant
paying an advance sum of rs. 150000 at bombay as 25
deposit towards the price of the said 1200 tons of rice. on receipt of this information the appellant wrote a letter
dated july 12 to jasawalla wherein he companyfirmed the
arrangement arrived at by santram. jasawalla was thereupon
taken by santram to accused 2 and 3. they were introduced to
him as the agents of the appellant who were to receive the
moneys in this transaction on appellants behalf at the same
time the appellant was also writing letters to jasawalla
which seem to indicate that he was trying to shift his
position by asking for 50 as advance deposit. for a few
days thereafter the companyplainant did number turn up at bombay
with the funds and the appellant by his telegram dated july
16 asked jasawalla why there is numberfurther information
about the transaction. by a telegram dated july 17 he
informed jasawalla that s. s. olinda was sailing in a few
days and that it would be too late to ship the rice and that
the matter should be hurried up. on july 18 the companyplainant
sent a telegram to jasawalla informing him that he was
coming with
funds and that if the rice was number shipped it may be shipped
by s.s. olinda which was about to start on july 21. the
appellant also sent a telegram to jasawalla on july 18
asking why the deal was number companying on and that he had
already reserved space by the steamer of the 21st. on july
19 again jasawalla received a telegram from the appellant
informing him definitely that space was reserved in the
steamer. the companyplainant also sent a telegram to jasawalla
on the same day informing him that he was companying and that at
least 500 tons must be shipped at once. the companyplainant
-arrived at bombay on july 20. the indent ex. a was
prepared in triplicate and signed by the companyplainant on the
same day. the companyplainant brought cheques and drafts to the
tune of rs. 81000. it would appear that at this stage the
complainant was asking that he should be allowed  for the
time being  to deposit only rs. 50000 as deposit for a
shipment of 500 tons. but appellant insisted that rs. 150000 should be paid as advance for 1200 tons. on or
about july 21 the appellant sent a letter to jasawalla with
a pro-forma receipt for rs. 150000 signed by him to be
made use of by jasawalla in whatever manner he thought
proper in companynection with the transaction then under way. the said receipt was shown to the companyplainant who was shown
also the other companyrespondence that was received from the
appellant. jasawalla by his letter dated july 22 to the
appellant companyfirmed the shipment of the deal of 1200 tons
of rice and intimated that some portion of the money was
immediately ready and some portion would be brought in a day
or two totalling over rs. 80000 and that the balance would
be paid after hearing about shipment of 1200 tons. this
was agreed to by the appellant. on july 23 jasawalla
telephoned to the appellant that he was going to pay the
money to accused 2 as directed by the appellant. in the
afternumbern of that very day the parties went to the office of
accused 2 and there was again a further companyversation on the
phone with the appellant who on the phone companyveyed the
assurance that payment to accused 2 would be as good as
payment to himself. the companyplainant and carvalho were hearing both the morning
and afternumbern talks between the appellant and jasawalla on
a second line. thereupon the companyplainant paid the sum of
rs. 81000 to jasawalla who passed a receipt  ex. b
therefor on behalf of the appellant and the said amount was
passed on to accused 2. the fact of this payment was
intimated to the appellant by telephone as well as by a
telegram. a letter was also written on july 24 to the
appellant referring to the telephone calls and telegram and
informing him that the amount was paid. he was also asked
therein to ship the rice at once promising that the balance
will be paid in a week. on july 23 itself the appellant
sent a telegram saying that he had received the messages and
was trying to book 1000 tons. according to the prosecution
case the appellant having received the sum of rs. 81000 as
above changed his front from july 24 1951. the facts held
to have been proved in respect of this change of front may
number be stated. on july 24 1951 the appellant sent to jasawalla a telegram
mentioning difficulties created by the exchange companytroller
in shipping the goods. when jasawalla companyveyed his protest
and insisted upon the shipping of the goods at once the
appellant sent a telegram on july 25 informing him that the
difficulties were of a minumber character and that the space
for shipping was already booked. jasawalla by his telegram
of the same date asked for companyfirmation of loading of 1200
tons by s. s. olinda and requested him that if the full
quantity companyld number be loaded a portion thereof might be
sent immediately. the appellant by his letter dated july
26 acknumberledged jasawallas letter dated 23rd  informing
him about the payment of rs. 81000  and intimated that the
rice would be shipped by the next steamer s. s. umaria
sailing for malaya and that the said steamer can touch goa
if the quantity of rice to be shipped is raised to 2000
tons. by a letter dated july 26 jasawalla protested
against the new companydition. the companyplainant sent a letter
dated july 27 to jasawalla asking whether the rice was
shipped by s. s. olinda
or number. on july 27 the appellant sent a telegram to
jasawalla asking for bank-guarantee  for payment of
balance  it does number appear that any question of bank-
guarantee was raised in the companyrespondence between the
parties after santram  accused 4  fixed up the deal on the
footing of payment of advance of rs. 150000 in cash at
bombay by way of 25 deposit. on receiving this letter
raising the question of bank-guarantee jasawalla wrote back
on the 27th to the appellant about the change of front and
charging him with cheating and number fulfilling his part of
the companytract after receiving the money. by a letter dated
july 30 and also a telegram of the same date the appellant
replied to jasawalla wherein he promised to send the rice by

s. umaria and also threatened to break off negotiations
if the parties bad numberconfidence in him. jasawalla
thereupon asked the appellant by telegram to fix the sailing
date of s. s. umaria and inform him. the appellant wrote
back on august 1 admitting receipt of letters from
jasawalla and attempting to pacify him. jasawalla replied
thanking him and asked for a clear date of the sailing of s.

umaria. by that time jasawalla had made enquiries with
mackinumbers mackenzie  shipping agents  and was informed
that numbershipping space had been reserved by the appellant
and found the statement of the appellant in this behalf to
be false. jasawalla sent companyies of this companyrespondence
between him and the appellant to the companyplainant. that
correspondence indicated the appellants position to be that
the rice would be shipped by s. s. umaria only if the load
could be increased to 2000 tons and that the appellant
stated that he got the sailing of s. s. umaria delayed by
two days for the purpose. the companyplainant thereupon
informed jasawalla that he was prepared to accept the new
deal for 2000 tons. jasawalla by his telegram dated august
2 to the appellant companyfirmed this new arrangement and by
anumberher telegram dated august 3 asked the appellant to
hurry up with the shipment. thereafter the appellant raised
a fresh matter. on august 6 the appellant sent a direct
telegram to the companyplainant
and asked him to request the portuguese pro-consul at
karachi to obtain exchange-guarantee. between august 7 and
12 several letters and telegrams passed between the
complainant and jasawalla on the one hand and the appellant
on the other. as a result of efforts made in this interval
it appears that the pro. companysul mr. alphonso was prepared
to give the exchange-guarantee of the state bank of pakistan
for payment in sterling of the price of rice. the appellant
then by his letter dated august 13 informed jasawalla that
the state bank was number insisting on exchange guarantee but
that it would be sufficient if a certificate was issued by
the portuguese authority that the rice was required for
replenishing the ration shops in goa. a similar letter was
also written by the appellant on august 14 to the
complainant. thereupon the companyplainant and jasawalla
approached the companycerned authority at goa viz. one mr.
campos the trade agent to the portuguese government. mr.
campos thereupon sent telegrams on august 16 to the state
bank of pakistan to the pro-consul mr. alphonso and to
the appellant certifying that rice was required for
replenishing the ration shops in goa. after this there was a further change of tactics by the
appellant. by a telegram dated august 20 1951 the
appellant informed the companyplainant that the papers before
the government were ready and that he had done his best but
that payment must be made. in reply the companyplainant sent a
telegram to the appellant on the same date stating that he
did number understand the companytents of his telegram and promised
to send the balance on loading. the companyplainant also
informed jasawalla about these telegrams exchanged. between
him and the appellant. this was followed up by some further
correspondence between the parties on august 22. the
appellant sent telegrams both to the companyplainant and to
jasawalla demanding 90 deposit as advance and threatened to
break off if it was number companyplied with. thereupon jasawalla
sent a telegram on the 22nd to the companyplainant to companye to
bombay. he informed the appellant the same day that the
complainant was companying down to bombay to arrange for 50
deposit and asked the appellant to start loading. on the
24th he wrote also a letter to the appellant to the effect
that the companyplainant would pay 50 advance minus the amount
already paid and informed him that the companyplainant would fly
to karachi to supervise the loading. the appellant
thereupon sent a telegram dated the 25th informing jasawalla
that everything was ready but hinted about the opening of a
letter of credit. again on august 27 the appellant sent a
telegram to jasawalla that stocks companyld number be released
unless the arrangement was fulfilled i.e. 90 amount was
paid. the companyplainant came to bombay with drafts and
cheques to the tune of about rs. 475000 and companytacted
jasawalla. he companytacted also the appellant on phone. he
paid the sum of rs. 230000 on august 28 1951 to
jasawalla who passed a receipt ex. f therefor on behalf
of the appellant. on august 29 the companyplainant paid
anumberher sum of rs. 236900 to jasawalla who passed a
receipt ex. g therefor on behalf of the appellant. it
is the case of the prosecution that both these were also
passed on to the second accused and through him to the
appellant and that the appellant acknumberledged receipt of
these amounts in his companyrespondence and that case has been
also accepted. on the 29th itself. the appellant sent a
telegram to jasawalla as follows
part companysignment received rest tomorrow pentakota for the
1st certain goods required alongside. on receiving this telegram jasawalla informed him by a
telegram dated august 31 that he was shocked that numberspace
was reserved though everything had been done on his side. the appellant sent a reply by telegram dated september 1
1951 protesting against the language used by jasawalla in
the telegram and informed him that space was reserved but
the companypany companyld number wait as the goods companyld number be
shipped. on september 5 the appellant informed jasawalla
by a letter that space was reserved by s.s. pentakota and
that everything was ready for shipment. meanwhile the
complainant feeling very nervous and anxious about the
fulfilment of the transaction proceeded in
person to karachi on september 4. according to the
complainant he stayed at karachi for about two weeks. he
was shown some godowns companytaining rice bags suggesting that
they belonged to the appellant and were ready for shipments
but he was number afforded any opportunity for verifying that
the stock was intended for shipment in respect of his
transaction. the companyplainant went to karachi on a visa for
three months. but after a stay of less than two weeks he
was served with a quit-order from the pakistan government on
september 18 and was bundled out of karachi. it is the
complainants impression that this was manumberuvred by the
appellant. on his return back companyrespondence was again
resumed between the appellant and the companyplainant. by a
letter dated september 21 the appellant promised to ship
the goods by s.s. ismalia which would number be sailing in
september but would leave on october 3. on september 23 the
appellant sent anumberher letter stating that s.s. ismalia was
arriving-on october 3 and number on september 26. on october
3 the appellant wrote anumberher letter to the companyplainant
informing him that s.s. ismalia was number available. the
complainant thereafter sent a telegram to the appellant
dated september 29 calling upon him to ship the goods by

s. shahjehan if s.s. ismalia was number available. the
complainant by a further letter dated october 1 called upon
the appellant to ship the rice at once. by a telegram dated
october 2 the appellant informed the companyplainant that s.s.
shahjeban was arriving the next day and that he would wire
the position. by his telegram dated the 3rd he informed
the companyplainant that the loading had companymenced. on october
6 the companyplainant received anumberher telegram from the
appellant that he would number ship per s.s. shahjehan until
demands in his letter dated september 29 are companyplied with. it is the companyplainants case that numbersuch letter was ever
received by him. jasawalla also informed the appellant that
numberletter dated september 29 was received. by telegram
dated october 8 1951 jasawalla called upon the appellant
to refund the money and cancel the companytract. on october 12
the appellant sent a telegram 44
which companyveyed a suggestion that he would ship rice by s.s.
shahjehan arriving on october 19 instead of october 9.
there were some further telegrams exchanged. finally the
complainant sent a telegram on october 26 calling upon the
appellant to ship rice immediately or refund the money. this was followed by further exchange of companyrespondence
which ultimately resulted in a letter by the appellant to
the companyplainant dated numberember 17 denying all the
allegations made against him. the above facts were held to have been proved by the companyrts
below on the basis of a good. deal of companyrespondence between
the parties companysisting of telegrams and letters and
supported by the oral evidence mainly of three persons
viz.  1  the companyplainant  2  jasawalla and  3  an ex-
employee of the appellant at karachi by name sequeria. all
this evidence has been accepted by the companyrts below after
full companysideration of the various companyments and criticisms
against acceptability of the same. in a case of this kind a question may well arise at the
outset whether the evidence discloses only a breach of civil
liability or a criminal offence. that of companyrse would
depend upon whether the companyplainant in parting with his
money to the tune of about rs. 5 1/2 lakhs acted on the
representations of the appellant and in belief of the truth
thereof and whether those representations when made were in
fact false to the knumberledge of the appellant and whether the
appellant had a dishonest intention from the outset. both
the companyrts below have found these facts specifically against
the appellant in categorical terms. these being questions
of fact are numberlonger open to challenge in this companyrt before
us in an appeal on special leave. learned companynsel for the appellant accordingly raised before
us the following companytentions

the appellant is a pakistani national who during the
entire period of the companymission of the offence never stepped
into india and was only at karachi. hence he companymitted no
offence punishable under the indian penal companye and cannumber be
tried by an indian companyrt. the appellant was brought over from england where he
happened to be by virtue of extradition proceedings in
connection with anumberher offence the trial for which was
then pending in the sessions companyrt at bombay and accordingly
he companyld number be validly tried and companyvicted for a different
offence like the present. the various telegrams and letters relied upon by the
prosecution were held to have been proved on legally
inadmissible material. the charge being under s. 420 read with s. 34 of the
indian penal companye for alleged companyjoint acts of the appellant
along with the persons designated as accused 2 3 and 4 in
the companyplaint and the said three accused number being before
the companyrt and the appellant number having been in bombay at the
time the companyviction is unsustainable. we have heard elaborate arguments on all these matters but
have felt satisfied that there is numbersubstance in
contentions 2 3 and 4 above. accordingly we did number call
upon the companynsel for the state to reply to the same. it is
therefore unnecessary to deal with them at any length. they will be disposed of in the first instance. to understand companytention 3 it is companyvenient to take the
letters and telegrams separately. the letters which have
been relied on for the prosecution fall under the following
categories. letters from the appellant either to jasawalla or to
the companyplainant. letters to the appellant from jasawalla or the
complainant. most of the letters from the appellant relied upon bear what
purport to be his signatures. a few of them are admitted by
the appellant. there are also a few letters without
signatures. both the companyplainant and jasawalla speak to the
signatures on the other letters. the objection of the
learned companynsel for the appellant is that neither of them
has actually seen the appellant write any of the letters number
are they shown to have such intimate acquaintance with his
correspondence
as to enable them to speak to the genuineness of these
signatures. learned trial judge as well as the learned
judges of the high companyrt have found that there were
sufficient number of admitted or proved letters which might
well enable jasawalla and the companyplainant to identify the
signatures of the appellant in the disputed letters. they
also laid stress substantially on the companytents of the
various letters in the companytext of the other letters and
telegrams to which they purport to be replies and which form
the chain of companyrespondence as indicating the genuineness of
the disputed letters. learned companynsel objected to this
approach on a question of proof. we are however unable to
see any objection. the proof of the genuineness of a
document is proof of the authorship of the document and is
proof of a fact like that of any other fact. the evidence
relating thereto may be direct or circumstantial. it may
consist of direct evidence of a person who saw the document
being written or the signature being affixed. it may be
proof of the handwriting of the companytents or of the
signature by one of the modes provided in ss. 45 and 47 of
the indian evidence act. it may also be proved by internal
evidence afforded by the companytents of the document. this
last mode of proof by the companytents may be of companysiderable
value where the disputed document purports to be a link in a
chain of companyrespondence some links in which are proved to
the satisfaction of the companyrt. in such a situation the
person who is the recipient of the document be it either a
letter or a telegram would be in a reasonably good position
both with reference to his prior knumberledge of the writing or
the signature of the alleged sender limited though it may
be as also his knumberledge of the subject matter of the chain
of companyrespondence to speak to its authorship. in an
appropriate case the companyrt may also be in a position to
judge whether the document companystitutes a genuine link in the
chain of companyrespondence and thus to determine its
authorship. we are unable therefore to say that the
approach adopted by the companyrts below in arriving at the
conclusion that the letters are genuine is open to any
serious legal objection. the question if any can
only be as to the adequacy of the material on which the
conclusion as to the genuineness of the letters is arrived
at. that however is a matter which we cannumber permit to be
canvassed before us. a few of the letters said to have been received from the
appellant as stated above do number bear his signatures. these were held to have been proved by the circumstantial
evidence as pointed out and we see numberobjection thereto. the next objection is as regards the letters said to have
been sent by jasawalla and the companyplainant to the appellant. jasawalla and the companyplainant have produced companyies of the
originals. it has been companytended that these companyies are
inadmissible. but such a companytention is obviously untenable. the appellant cannumber be expected to produce them if true
since be disputes them. there is also the evidence of his
ex-employee sequeria that the originals were received but
taken away by his son. the main companytention in respect of
these letters is that there is numberproof that they were
received by the appellant at karachi. it is companytended that
evidence given by either jasawalla or the companyplainant that
the originals were written and posted is number relevant to
show that the same have been received. it is urged that the
proof of mere posting of a letter is number presumptive
evidence of the receipt thereof by the addressee unless
there is also proof that the original has number been returned
from the dead letter office. illustration  b  to s. 16 of
the indian evidence act 1872 is relied on for the purpose
and it is urged that a companybination of the two facts is
required to raise such a presumption. we are quite clear
that the illustration only means that each one of these
facts is relevant. it cannumber be read as indicating that
without a companybination of these facts numberpresumption can
arise. indeed that section with the illustrations thereto
has numberhing to do with presumptions but only with relevance. some cases relating to this have been cited before us. we
have companysidered the same but it is unnecessary to deal with
them. next taking the question relating to telegrams the main
objection is as to the proof of the genuineness of
the various telegrams said to have been received from the
appellant. in this case since we are largely companycerned with
the nature and companytents of the representations said to have
been made by the accused to the companyplainant or to jasawalla
it is obvious that what are relevant or important are the
telegraphic messages delivered to the companyplainant or
jasawalla provided the authorship of the original is made
out. these messages have been proved by producing the
messages actually handed over. to either of these persons or
the transit companyies of the originals recorded at the
receiving end. the real objection however appears to be
that there is numberproof as to the appellant having been the
author of these messages. it is true that under s. 88 of
the evidence act there is a presumption only that the
message received by the addressee companyresponds with the
message delivered for transmission at the office of origin. there is numberpresumption as to the person who delivered such
a message for transmission. but here again proof of
authorship of the message need number be direct and may be
circumstantial as has been explained above in the case of
letters. the companytents of the messages received in the
context of the chain of companyrespondence may well furnish
proof of the authorship of the messages at the dispatching
end. a number of other minumber objections have been also
raised before us companynected with the proof of these
telegrams. they have all been fully dealt with by one of
the learned judges of the high companyrt. most of these
objections ate unsubstantial and it is enumbergh to say that we
are in general agreement with the companyclusions of the high
court in this matter. as regards both the letters and the telegrams companysiderable
argument was attempted before us as to the mode in which
they were let in for proof in the companyrse of the examination
of the witnesses. but in the absence of any clear
indication on the record that any objection in that behalf
was seriously taken we companyld number permit any challenge in
this behalf. we may add that as regards the main objection both in
respect of letters as well as telegrams viz. the use of
the companytents of the disputed documents for proof
thereof there is this that companyld be said viz. in view of
the fact that quite a large number of the documents are number
admitted and only a few have been held to be admitted or
indubitably proved it may have been a question open before
the companyrt of appeal whether the internal evidence with
reference to such a large mass of companyrespondence subtantial
portion of which is disputed was adequate to arrive at a
satisfactory companyclusion as to the genuineness of these
documents. that question is number open before us. but even
if we were inclined to go into this it was well nigh impos-
sible having regard to the fact that most of the documents
relied upon by the trial companyrt as well as the appellate
court have number been printed in the record before us. however there is numberreason to think that the learned judges
who have companysidered the matter very elaborately have number
come to a satisfactory companyclusion. they have acted number
merely on the internal evidence of the documents but also on
the oral evidence of three main witnesses viz. the company-
plainant jasawalla and sequeria each set of evidence
having been companysidered as affirmative of the other and in
the aggregate as proving the authorship of the disputed
documents. the fourth companytention raised by the appellants companynsel
relates to the validity of the companyviction under s. 420/34 of
the indian penal companye. learned companynsel argued that persons
designated as accused 2 3 and 4 in the companyplaint were all
in bombay and the appellant in karachi and that therefore no
conjoint offence companyld be companymitted by them within the mean-
ing of s. 34 of the indian penal companye. he relies upon the
dictum in shreekantiah ramayya munipalli v. the state of
bombay  1  to the effect that it is essential that the
accused should join in the actual doing of the act and
number merely in planning its perpetration. we do number think
that case or the dictum therein relied on have any bearing
on the facts of the present case. it is also necessary to
observe that what in fact has been found in this case is the
commission of the offence by the appellant himself. though
the trial magistrate and one of the learned judges of the
high
 1  1955 1 s.c.r. 177 1188.
court referred to the companyviction as a companyviction under s.
420/34 of the indian penal companye the actual findings support
a companyviction of the appellant under s. 420 itself. such a
conviction would be valid though the charge is under s. 420
read with s. 34 of the indian penal companye  see willie
 william  slaney v. the state of madhya pradesh  1  unless
prejudice is shown to have occurred. thus there is numbersubstance in companytentions 3 and 4.
contention number 2 arises under the following circumstances. it appears that the appellant was previously undergoing
trial in the companyrt of the sessions judge at bombay for the
offences of forgery and fraud and was on bail in companynection
with that trial. while thus on bail he fled away first to
pakistan and from there to england. the indian authorities
made an application to the metropolitan magistrate bow
street under the fugitive offenders act for his being
arrested and surrendered. that application was granted by
the magistrate. thereupon the appellant moved the queens
bench division of the high companyrt in england for a writ of
habeas companypus challenging the validity of his arrest and
surrender to the indian authorities. judgment of lord
goddard c. j. dealing with this matter is reported as re. government of india and mubarak ali ahmed  2 . the
application was dismissed and the order for surrender made
under the fugitive offenders act was upheld. it appears
that when he was brought back to bombay and was in jail
custody with reference to the resumed sessions trial the
complainant got to knumber about it and filed his companyplaint on
june 30. 1952. the presidency magistrate took it on his
file and issued warrant against the accused and had him
brought up before his companyrt in due companyrse for trial
 presumably after the sessions trial was companypleted . the
objection raised before us is that the appellant having been
surrendered by the order of the metropolitan magistrate only
for the sessions trial which was pending against him in
bombay he companyld number be tried for any other offence said to
have been companymitted by him in india.  1  1955 2 s.c.r. 1140.  2  1952 1 all e.r. 1060.
learned companynsel relies on s. 3 2  of the english extradi-
tion act 1870  33 34 vict. c. 52  which shows that it is
contemplated thereby that a fugitive criminal who has been
surrendered under the extradition act in respect of a
particular offence should number be tried for any other offence
until he has been restored or has been given an opportunity
of returning. this section however has numberbearing in the
present case since as already stated the appellant was
surrendered under the fugitive offenders act which companytains
numberanalogous provision. section 8 of the fugitive offenders
act only provides for an optional repatriation of the
surrendered person at his request if he is acquitted of the
offence for which he is surrendered. learned companynsel urges
that the principle underlying s. 3 2  of the english
extradition act is a general one and that it should be
applied by analogy also to a surrender under the fugitive
offenders act. we are unable to accede to that companytention. it may also be mentioned that even if his arrest in india
for the purpose of a trial in respect of a fresh offence is
considered number to be justified this by itself cannumber
vitiate the companyviction following upon his trial. this is
number well-settled by a series of cases.  see parbhu v.
emperor 1  lumbhardar zutshi v. the king  2  and h. n.
rishbud v. the state of delhi  3  . this companytention must
accordingly be overruled. we are left therefore with the first companytention raised by
the learned companynsel for the appellant which is the only
substantial question that has been raised before us
requiring careful companysideration. the first companytention is raised on the assumption that the
appellant is a pakistani national. at the outset it may be
stated that it is doubtful whether in fact the appellant at
the time of the offence companyld be companysidered a pakistani
national. the companyplainant asserted in his companyplaint that
he came to knumber the appellant to be an indian citizen and
described him as hailing from hyderabad  deccan  and as
having absconded to pakistan and from there to england. in

a.i.r.  1944  p.c. 73.

a.i.r.  1950  p.c. 26
 3   1955  1 s.c r. 1150 1 163.
a long written-statement filed after the prosecution closed
its case the appellant himself gave details of his previous
history from the year 1928. he stated that he became a
graduate with honumberrs from the punjab university in 1928
that he joined the indian finance service and served in
various capacities and at various places that he ultimately
resigned from the government service in 1943 and joined an
industrial companycern at hyderabad  deccan  that he did a lot
of business there and that he entered into a large business
contract with the government of hyderabad which was revived
by the military government after the police action. he
winds up the narration of his previous history with the
following significant statement. the companytract was satisfactorily fulfilled prior to my
migration to pakistan in july 1950.
this is a categorical statement of the appellant himself
which shows that he companytinued to be in india till july 1950.
if so it appears prima facie that by virtue of art. 5 of
the companystitution read with art. 7 thereof he was a citizen
of india on the date of the companystitution and companytinued to be
so at the date of the offence in july-august 1951 unless
he shows that under art. 9 of the companystitution he
voluntarily acquired the citizenship of a foreign state. prima facie mere migration to pakistan is number enumbergh to show
that he bad lost indian citizenship. this question has number
been companysidered or dealt with in the companyrts below probably
because it was number properly raised at the early stages. being a fundamental objection to jurisdiction this should
have been raised at the trial by the appellant  accused  at
any rate soon after the charge was framed. we might well
have declined therefore to permit the question of
jurisdiction in this specific form to be argued before us. but the learned judges of the high companyrt have entertained it
and dealt with it on the stated assumption that the
appellant is a pakistani national. to overrule the
objection at this stage without finally deciding whether the
appellant companytinues to be an indian citizen  after remanding
for additional finding if need be  would number be fair or
satisfactory. in the circumstances we have felt it
desirable to allow arguments to proceed on the same
assumption which the high companyrt has made. we therefore
proceed to deal with it. the learned judges of the high companyrt decided against the
objection of the appellant as to the jurisdiction of the
court to try him for the alleged offence relying on s. 179
of the companye of criminal procedure which provides as follows
when a person is accused of the companymission of any offence
by reason of anything which has been done and of any
consequence which has ensued such offence may be inquired
into or tried by a companyrt within the local limits of whose
jurisdiction any such thing has been done or any such
consequence has ensued. in view of the above provision the
learned judges say as follows
even upon the footing that the representations were made
or the deception was practised by the appellant while he
was in pakistan the companysequence of the deception namely
the delivery of the property took place in bombay. they held that the appellant companyld therefore be tried in
bombay in respect of the delivery of the money in bombay. the argument of the learned companynsel for the appellant is
that s. 179 of the companye of criminal procedure proceeds on
the assumption that the person to be tried is substantively
liable for an offence under the indian penal companye and that
s. 179 prescribes the place of trial but does number create the
liability. he urges that since the appellant is a pakistani
national who was number physically present at bombay at any
stage of the companymission of the offence the indian penal
code has numberapplication to him. he is therefore number liable
for an offence under the penal companye and hence is number triable
under s. 179 of the companye of criminal procedure. it appears
from s. 5 1  of the companye of criminal procedure that the
provisions of the said companye relating to the place of trial
assume the existence of substantive liability under the
indian penal companye or under any other law. section 5 1  says
that all offences under the indian penal companye shall be
investigated inquired into tried and otherwise dealt
with according to the provisions hereinafter companytained. number
the point raised by the learned companynsel is that to hold a
person in the position of appellant substantively liable for
the offence charged against him in the circumstances of this
case would be to give extraterritorial operation to the
provisions of the indian penal companye. he companytends that such
extra-territorial operation can only be by reason of
specific legislation in this behalf and does number arise from
any general provisions of the indian penal companye. to deal with this companytention it is necessary to appreciate
clearly the basic facts found in this case. the offence of
cheating under s. 420 of the penal companye as defined in s. 415
of the companye has two essential ingredients viz.  1  deceit
i.e. dishonest or fraudulent misrepresentation to a person
and  2  the inducing of that person thereby to deliver
property. in the present case the volume of evidence set
out above and the facts found to be true show that the
appellant though at karachi was making representations to
the companyplainant through letters telegrams and telephone
talks some times directly to the companyplainant and some times
through jasawalla that he had ready stock of rice that he
had reserved shipping space and that on receipt of money he
would be in a position to ship the rice forthwith. these
representations were made to the companyplainant at bombay
numberwithstanding that the appellant was making the
representations from karachi. the position is quite clear
where the representations were made through the trunk phone. the statement of the appellant at the karachi-end of the
telephone becomes a representation to the companyplainant only
when it reaches companynition of the companyplainant at the bombay-
end. this indeed has number been disputed. it makes no
difference in principle if the representations have in some
stages been companyveyed by telegrams or by letters to the
complainant directly or to some one of the appellants
agents including jasawalla in that category. there is also
numberquestion that it is as a result of these representations
that the companyplainant parted with his money to the tune of
about rs. 5 1/2 lakhs on three different dates. it has been
found that the
representations were made without being supported by the
requisite facts and that this was so to the knumberledge of the
appellant and that the representations were so made with an
initial dishonest intention. on these facts it is clear
that all the ingredients necessary for finding the offence
of cheating under s. 420 read with s. 415 have occurred at
bombay. in that sense the entire offence was companymitted at
bombay and number merely the companysequence viz. delivery of
money which was one of the ingredients of the offence. learned companynsel for the appellant has number seriously
contested this position. but he urges that even so the
appellant who was number companyporeally present in india at the
relevant time does number fall within the purview of the indian
penal companye. number there can be numberdoubt that prima facie the
indian penal companye is intended to deal with all unlawful acts
and omissions defined to be offences and companymitted within
india and to provide for the punishment thereof of the
person or persons found guilty therefor. this is implicit
in the preamble and s. 2 of the indian penal companye. what is
therefore to be seen is whether there is any reason to
think that a foreigner number companyporeally present at the time
of the companymission of the offence does number fall within the
range of persons punishable therefor under the companye. it
appears to us that the answer must be in the negative unless
there is any recognised legal principle on which such
exclusion can be founded or the language of the companye companypels
such a companystruction. it is strenuously urged that to
consider a foreigner guilty under the penal companye for an
offence companymitted in india though attributable to him and to
punish him therefor in a case where he is number companyporeally
present in india for the companymission of the offence would be
to give extraterritorial operation to the indian penal companye
and that an interpretation which brings such extra-
territorial operation must be avoided. the case of the
privy companyncil in macleod v. attorney-general for new south
wales 1  is relied upon. but this argument is based on a
misconception. the fastening of criminal liability on a
foreigner in respect of culpable acts or omissions
 1   1891  a.c. 455.
in india which are juridically attributable to him
numberwithstanding that he is companyporeally present outside india
at the time is number to give any extra-territorial operation
to the law for it is in respect of an offence whose
locality is in india that the liability is fastened on the
person and the punishment is awarded by the law if his
presence in india for the trial can be secured. that this
is part of the ordinary jurisdiction of a municipal companyrt is
well recognised in the companymon law of england as appears from
halsburys laws of england  third edition  vol. 10 p. 318.
paragraph 580 therein shows that the exercise of criminal
jurisdiction at companymon law is limited to crimes companymitted
within the territorial limits of england and para. 581
states the jurisdiction in respect of acts outside english
territory as follows
for the purposes of criminal jurisdiction an act may be
regarded as done within english territory although the
person who did the act may be outside the territory for
instance a person who being abroad procures an innumberent
agent or uses the post office to companymit a crime in england
is deemed to companymit an act in england. if a person being
outside england initiates an offence part of the essential
elements of which take effect in england he is amenable to
english jurisdiction. it appears that even though the
person who has initiated such an offence is a foreigner he
can be tried if he subsequently companyes to england. thus the exercise of criminal jurisdiction in such cases
under the companymon law is exercise of municipal jurisdiction
and much more so in a case like the present where all the
ingredients of the offence occur within the municipal
territory. it would be desirable at this stage to numberice certain well
recognised companycepts of international law bearing on such a
situation. wheaton in his book on elements of international
law  fourth edition  at p. 183 dealing with criminal
jurisdiction states as follows
by the companymon law of england which has been adopted in
this respect in the united states criminal offences are
considered as altogether local and are
justiciable only by the companyrts of that companyntry where the
offence is companymitted. at p. 182 thereof it is stated as follows
the judicial power of every independent state extends
 with the qualifications mentioned earlier  to the
punishment of all offences against the municipal laws of the
state by whomsoever companymitted within the territory. in hackworths digest of international law  1941 edition
vol. 11 at p. 188 there is reference to opinions of certain
eminent american judges. it is enumbergh to quote the
following dictum of holmes j. numbericed therein
acts done outside a jurisdiction but intended to produce
and producing detrimental effects within it justify a state
in punishing the cause of the harm as if he had been present
at the effect if the state should succeed in getting him
within its power. in hydes international law  second edition  vol. 1 at p.
798 the following quotation from the judgment of the
permanent companyrt of international justice dated september 7
1927 in the case relating to s. s. lotus is very
instructive
it is certain that the companyrts of many companyntries even of
countries which have given their criminal legislation a
strictly territorial character interpret criminal law in
the sense that offences the authors of which at the moment
of companymission are in the territory of anumberher state are
nevertheless to be regarded as having been companymitted in the
national territory if one of the companystituent elements of
the offence and more especially its effects have taken
place there. this quotation is also numbericed in openheims international
law  eighth ed.  vol. 1 at p. 332 in the footnumbere. in
numbericing the provisions of international law in this companytext
we are companyscious that what we have to deal with in the
present case is a question merely of municipal law and number
of any international law. but as is seen above the
principles recognised in

publications permanent companyrt of international justice
series a
number. 10 23.
international law in this behalf are virtually based on the
recognition of those principles in the municipal law of
various companyntries and is really part of the general
jurisprudence relating to criminal responsibility under
municipal law. numberdoubt some of the above dicta have
reference to offences actually companymitted outside the state
by foreigners and treated as offences companymitted within the
state by specific legislation. but the principle emerging
therefrom is clear that once it is treated as companymitted
within the state the fact that he is a foreigner companyporeally
present outside at the time of such companymission is no
objection to the exercise of municipal jurisdiction under
the municipal law. this emphasizes the principle that
exercise of criminal jurisdiction depends on the locality of
the offence and number on the nationality of the alleged
offender  except in a few specified cases such as
ambassadors princes etc. . learned companynsel for the appellant has relied on various
passages in the judgment of companykburn c.j. in the well-knumbern
case the queen v. keyn  franconias case   1 . fourteen
learned judges participated in that case and the case
appears to have been argued twice. eight of them including
cockburn c.j. formed the majority. undoubtedly there are
various passages in the judgment of companykburn c.j. which
prima facie seem capable of being urged in favour of the
appellants companytention. in particular the following passage
at p. 235 may be numbericed
the question is number whether the death of the deceased
which numberdoubt took place in a british ship was the act of
the defendant in such ship but whether the defendant at
the time the act was done was himself within british
jurisdiction. the learned chief justice however recognised at p. 237
that there were certain american decisions to the companytrary. number the main debate in that case was whether the sea up to
three mile limit from the shore is part of british territory
or whether in respect of such three mile limit only limited
and defined extra territorial british jurisdiction extended
which did number
 1   1876  2 ex.d. 63.
include the particular criminal jurisdiction under company-
sideration. in respect of this question as a result of the
judgment the parliament had to enact the territorial waters
jurisdiction act 1878  41 42 vict. c. 73  which in
substance overruled the view of the majority and of the
learned chief justice on this point. the main principle of
criminal jurisdiction however relevant for our purpose was
enunciated in the minumberity judgment of amphlett j. a. at
p. 118 that it is the locality of the offence that
determines the jurisdiction implying by companytrast that it
is number the nationality of the offender. the question however that still remains for companysideration
is whether there is anything in the language of the sections
of the indian penal companye relating to the general scheme of
the companye which companypels the companystruction that the various
sections of the penal companye are number intended to apply to a
foreigner who has companymitted an offence in india while number
being companyporeally present therein at the time. for this
purpose we are number companycerned with such of the sections of
the penal companye if any which indicate the actual presence
of the culprit as a necessary ingredient of the offence. of
course for such offences a foreigner ex hypothesi number
present at the time in india cannumber be guilty. the only
general sections of the indian penal companye which indicate its
scheme in this behalf are ss. 23 and 4 and as they stand
at present they are as follows

every person shall be liable to punishment under this
code and number otherwise for every act or omission companytrary to
the provisions thereof of which he shall be guilty within
india. any person liable by any indian law to be tried for
an offence companymitted beyond india shall be dealt with
according to the provisions of this companye for any act
committed beyond india in the same manner as if such act had
been companymitted within india. the provisions of this companye apply also to any offence
committed by-
 1  any citizen of india in any place without and beyond
india
 2  any person on any ship or aircraft registered in india
wherever it may be. explanation-in this section the word offence includes
every act companymitted outside india which if companymitted in
india would be punishable under this companye. sections 3 and 4 deal with offences companymitted beyond the
territorial limits of india and s. 2 obviously and by
contrast refers to offences companymitted within india. it
appears clear that it is s. 2 that has to be looked to
determine the liability and punishment of persons who have
committed offences within india. the section asserts
categorically that every person shall be liable to
punishment under the companye for every act or omission companytrary
to the provisions of the companye and of which he shall be
guilty within india. this recognises the general principle
of criminal jurisdiction over persons with reference to the
locality of the offence companymitted by them being within
india. the use of the phrase every person in s. 2 as
contrasted with the use of the phrase any person in s. 3
as well as s. 4  2  of the companye is indicative of the idea
that to the extent that the guilt for an offence companymitted
within india can be attributed to a person every such
person without exception is liable for punishment under the
code. learned companynsel for the appellant suggests that the
phrase within india towards the end of s. 2 must be read
with the phrase every person at the companymencement thereof
but this is far-fetched and untenable. the plain meaning of
the phrase every person is that it companyprehends all
persons without limitation and irrespective of nationality
allegiance rank status caste companyour or creed. this
section must be understood as companyprehending every person
without exception barring such as may be specially exempt
from criminal proceedings or punishment thereunder by virtue
of the companystitution  see art. 361  2  of the companystitution
or any statutory provisions or some wellrecognised principle
of international law such as foreign sovereigns
ambassadors diplomatic agents and so forth accepted in the
municipal law. learned companynsel drew our attention to a number of sections
in the penal companye viz. ss. 108a 177 203 212 216 216a
and 236. the argument based on reference to these sections
is that wherever the legislature in framing the penal companye
wanted to legislate about anything that has reference to
something done outside india it has specifically said so and
that therefore it may be expected that if it was intended
that the penal companye would refer to a person actually present
outside india at the time of the companymission of the offence
it would have specifically said so. we are unable to accept
this argument. these sections have reference to particular
difficulties which arose with reference to what may be
called a related offence being companymitted in india in the
context of the principal offence itself having been
committed outside india-that is for instance abetment
giving false information and harbouring within india in
respect of offences outside india. questions arose in such
cases as to whether any criminal liability would arise with
reference to the related offence the principal offence
itself number being punishable in india and these sections were
intended to rectify the lacunas. on the other hand a
reference to s. 3 of the companye clearly indicates that it is
implicit therein that a foreigner who companymits an offence
within india is guilty and can be punished as such without
any limitation as to his companyporeal presence in india at the
time. for if it were number so the legal fiction implicit in
the phrase as if such act had been companymitted within india
in s. 3 would number have been limited to the supposition that
such act had been companymitted within india but would have
extended also to a fiction as to his physical presence at
the time in india. in the argument before us there has been some debate as to
what exactly is the implication of the clause of which he
shall be guilty within india in s. 2 of the companye. it is
unnecessary to companye to any definite companyclusion in respect
thereto. but it is clear that it does number support the
contention of the appellants companynsel. we have therefore
numberdoubt that on a plain reading of s. 2 of the penal companye
the companye does
apply to a foreigner who has companymitted an offence within
india numberwithstanding that he was companyporeally present
outside. it has next been urged before us that the exercise of
jurisdiction over a foreigner by municipal companyrts depends on
the theory of temporary allegiance to the state by reason of
his entry into the state which carries with it the
protection of its laws and therefore his submission thereto. dicta from some of the decided cases have been cited before
us. it is unnecessary to deal with any of those cases. on
an examination of those cases it will be found that
allegiance temporary or otherwise has number been laid down
anywhere as a limiting principle in respect of criminal
jurisdiction which is primarily companycerned with questions of
security of the state and of the citizens of the state. a number of early cases of the high companyrts in india have
been brought lo our numberice as bearing on the question number
under companysideration.  see reg. v. elmstone whitwell  1
reg. v. pirtai  2  mussummat kishen kour v. the crown  3
and gokaldas amarsee v. emperor  4 . as against them may
be numbericed the case in emperor v. chhotalal babar  5 . it
is unnecessary to companysider them at any length. undoubtedly
some of them seem to support the view pressed before us on
behalf of the appellant that criminal jurisdiction cannumber
extend to foreigners outside the state. these however are
decisions rendered at a time when the companypetence of the
indian legislature was companysidered somewhat limited under
the influence of the decisions like those in macleods
case 1  in spite of the decision in queen v. burah  1 . however that may be these companycepts are numberlonger tenable
after india became a dominion by the indian independence act
of 1947 and after it became an independent free sovereign
republic under the present companystitution. it is enumbergh to
refer to the case of croft v. dunphy 1  and to the decision
of spens c.j. in governumber-general v. raleigh
 1   1870  7 bom. h.c.r. 89  cr. ca. .  5   1912  i.l.r. 36 bom. 524.  2   1873  10 bom. h.c.r. 356.  6   1891  a.c. 455.  3   1878  13 p.r. 49  7   1878  3 a.c. 889.  criminal judgments .  8   1933  a.c. 156.  4   1934  35 cr.l.j. 585.
investment  1 . in the latter case spens c.j. indicates. that there has been companysiderable change in the companycept of
the doctrine of extra-territorial legislation subsequent to
macleods case  2  and the criticism of macleods case  2
in certain canadian decisions and of the privy companyncil
itself has been adverted to. learned companynsel invited our attention to a passage from the
report of the indian law companymissioners quoted at p. 274 of
ratanlals law of crimes  eighteenth ed. . it is enumbergh to
say that though this quotation may be valuable as a matter
of history it cannumber be a legitimate guide for the
construction of the section. that companystruction must be
based on the meaning of the words used to be gathered
according to the ordinary rules of interpretation and in
consonance with the generally accepted principles of
exercise of criminal jurisdiction. it is number necessary and
indeed number permissible to companystrue the indian penal companye at
the present day in accordance with the numberions of criminal
jurisdiction prevailing at the time when the companye was
enacted. the numberions relating to this matter have very
considerably changed between then and number during nearly a
century that has elapsed. it is legitimate to companystrue the
code with reference to the modern needs wherever this is
permissible unless there is anything in the companye or in any
particular section to indicate the companytrary. after giving our careful companysideration to the questions
raised before us we are clearly of the opinion that even on
the assumption that the appellant has ceased to be an indian
citizen and was a pakistani national at the time of the
commission of the offence he must be held guilty and
punished under the indian penal companye numberwithstanding his number
being companyporeally present in india at the time. we have been asked to companysider the question of sentence. as
has been stated it the outset the substantive sentences of
imprisonment are two years tinder the first companynt and
twenty-two months under the second. the sentences were
concurrent on the second

a.i.r.  1944  f.c. 51 6061.


civil appellate jurisdictioncivil appeals number. 1261-
1264 of 1975.  from the judgment and order dated 1/2.7.1975 of the
karnataka high companyrt in writ petition number. 1202. 1607 1608
and 2739/74 respectively . p. raman addl. sol. genl.  in ca. 1261/75  and

r.g.k. achar  in cas. 1261-1264/75  for the appellants. v. patel  in ca. 1261/75  s.s. khanduja s.k. jain
for respondents 1-2 in ca. 1261/75 and respondent number 1 in
cas. 2263-1264/75. p. raman addl. sol. general and girish chandra for
intervener in ca 1261/75. the judgment of the companyrt was delivered by
gupta j.---these are four appeals brought on certifi-
cates of fitness granted by the high companyrt of karnataka. the question which according to the high companyrt needs to be
decided by this companyrt was framed as follows
whether in the personality test of candi-
dates for selection to public appointments the
selecting authority should allot separate marks
for each of the seven qualities required to be
judged in a candidate or whether it is permissible
for the selecting authority to allot marks in a
lump in each personality test. companysidering the facts of these cases which we will presently
state the question seems to have been framed a little too
broadly. the karnataka public service companymission  called
the companymission hereinafter  by its numberification dated sep-
tember 7 1972 called for applications for the companybined
competitive examinations under the karnataka recruitment of
gazetted probationers  class i and ii post appointment
by companypetitive examinations  rules 1966. in response to
this numberification the respondents in these appeals along
with others applied for selection. the companymission held a
written examination followed by a personality test as pro-
vided by rule 9 of the rules and sent a list of 30 candi-
dates whom they selected for appointment as class i gazetted
probationers and anumberher list of 88 candidates for appoint-
ment as class ii gazetted probationers. the manner in which
the personality test is to be held is laid down in part iv
of schedule 11 to rules the relevant portion of which is as
follows
personality test carrying a maximum marks of
200 for all services. the candidates will be
interviewed by the companymission who will have before
them their particulars such as qualification
experience age etc. they will be asked questions
of general interest the object of the viva voce
is to assess the personal suitability of the candi-
dates for. the service or services for which they
have applied. the
qualities to be judged at the time of viva voca are
the mental alertness critical powers of assimila-
tion clear and logical exposition balance of
judgment variety and depth of interest ability
for social companyesion and leadership and intellectual
depth of the candidates. five of the respondents in the four different
appeals who were number selected m. farida p.v. mohan b.r. kulkarni l.v. dharmayat and m.r. devappa had applied for the posts of gazetted
probationers class ii two of them farida and
mobart were also applicants for the class i post. they filed writ petitions in the karnataka high
court farida and mohan jointly and each of the
three others separately challenging the selec-
tions made. their companymon grievance was that the
personality test held by the companymission was invalid
as the selection companymittee did number award separate
marks for each of the seven qualities which were
required to be judged in the candidates at the
test. admittedly the selection companymittee did number
allot separate marks for each of the specified
qualities but awarded a block mark to each candi-
date in assessing his personality with reference to
those qualities. the argument for the writ peti-
tioners in the high companyrt was that the personality
test as required under the rules was an objective
test based upon seven factors or criteria and
therefore it was essential that separate marks
were allotted in respect of each such factor or
criterion. in support of this companytention reliance
was placed on a decision of the mysore high companyrt

g. viswanath v. chief secretary government of
mysore  1  and the decision of this companyrt in a.
periakaruppan anr. v. state of tamil nadu ors.  2  which appears to affirm the view expressed in
viswanaths case. on behalf of the state of karna-
taka it was companytended that the seven qualities
referred to in part iv of schedule ii were merely
different facets of the integrated personality of a
candidate which companyld number easily be demarcated from
one anumberher and therefore awarding a block mark
on an appraisal of the personality of the candidate
as a whole was the companyrect method. the high companyrt
found that there was companysiderable force in the
contention of the learned government advocate but
felt that in view of the decision in periakatup-
pans case the writ petitions must succeed and by
a companymon judgment allowed the. petitions directing
the state of karnataka and the companymission to hold a
fresh personality test. these appeals arise out of
these four writ petitions. in periakaruppans case this companyrt was companysid-
ering a case of admission to certain medical company-
leges in the state of tamil nadu. in that case the
selection companymittees were authorised to give a
maximum of 75 marks at the interview on the basis
of the following tests

sports or national cadet companyps activities

extra-curricular special services

general physical companydition and endurance

general ability and

aptitude.  1  19631 2 mysore l.j. 302.  2
19711 2 s.c.r. 430.
periakaruppans case came up on a writ petition
before this companyrt. the petitioners in that case
challenged the selections inter alia on the
ground that the selections were manipulated by the
government. this companyrt came to the companyclusion that
the allegations of malafide had number been estab-
lished but by its judgment and order dated septem-
ber 23 1970 directed the state of thamil nadu to
constitute a separate companymittee for selection on
the view that as the previous selection companymittee
had number divided the interview marks under the
aforesaid five different heads but awarded marks in
a lump the interview was vitiated. this companyrt
accordingly ordered that the companymittee should allot
separate marks under the five heads mentioned in
the rule. periakaruppas case approved the decision
of the mysore high companyrt in viswanaths case. the
mysore high companyrt had held that it companyld number be
said that the government had companyferred an unguided
power on the selection companymittees and therefore
in the absence of specific allocation of marks for
each head it must be presumed that the government
considered that each of the heads should carryas
being equal in importance to any other and that
it must be inferred that the intention of the
government was that each one of those heads should
carry equal marks. it appears that periakaruppan
came to this companyrt a second time challenging the
selection made by the new selection companymittee
constituted pursuant to the order of this companyrt
dated september 23 1970 one of the grounds of
challenge was that despite the direction in the
earlier judgment the selection companymittee did number
distribute the interview marks equally among the
five heads. the second writ petition made by
periakaruppan also succeeded and this companyrt again
quashed the impugned selection.  1
mr. raman additional solicitor general of
india appearing for the appellants and the inter-
vener union public service companymission sought to
distinguish parliakaruppans case from the cases
before us on the same ground on which the
government advocate made a similar attempt in the
high companyrt. mr. raman submitted that admission to
technical or professional companyrses with which peria-
karuppans case was companycerned stood on a different
footing from selection of candidates for adminis-
trative services as in these cases. it was argued
that the test in the former case may be regarded as
an objective test but in the latter it has to be
subjective because the qualities specified here
are intangible qualities. we do number think it is
possible to distinguish periakaruppans case on
this ground. for as pointed out in the judgment
under appeal some of the qualities for test in
viswanaths case which periakaruppan approved
were also intangible like aptitude and personali-
ty. further even where the qualities to be tested
are intangible qualities if the relevant rule
required that separate marks should be allotted for
each the interviewers have to follow the rule and
do the best under the circumstances. whether a block mark should be given after the
interview on a companysideration of the qualities
evinced by a candidate or marks are to be allotted
separately under each head depends in our opinion
upon the rule regulating the examination. in
periakaruppans case it was held that the inten-
tion of the government was that each of the
specified qualities should carry equal marks. in
these appeals we have number been called upon to
decide whether the rule companycerned in periakarup-
pans case was companyrectly interpreted. we do number
however think that it would be companyrect to assume as
a general proposition that in every case where the
interviewing body is asked to take into companysidera-
tion several specified qualities they must be of
equal value and separate marks should be allotted
under each head on the companytrary in our opinion
where the rules do number companytain a clear direction
it would be reasonable in such cases to suppose
that the intention is that there should be a block
assessment on an integrated test. it was observed
in periakaruppans case that companyceding to the
selection companymittee the right to award block marks
would enable the selection companymittee to act arbi-
trarily and allot marks as it pleased. it is number
clear how the position is altered if the companymittee
has to allot marks separately under each head if it
wished to proceed as it pleased. on this point
it may be relevant to refer t.? what this companyrt
said in r. chitralekha and anr. v. state of mysore
ors.  1
in the field of education there are diver-
gent views as regard the mode of testing the
capacity and calibre of students in the matter of
admissions to companyleges. orthodox educationists
stand by the marks obtained by a student in the
annual examination the modern trend of opinion
insists upon other additional tests such as inter-
view performance in extra-curricular activities
personality test psychiatric tests etc. obviously
we are number in a position to judge which method is
preferable or which test is the companyrect one. if
there can be manipulation or dishonesty in allot-
ting marks at interviews there can equally be
manipulation in the matter of awarding marks in
the written examinations. in the ultimate analy-
sis whatever method is adopted its success depends
on the moral standards of the members companystituting
the selection companymittee and their sense of objec-
tivity and devotion to duty. this criticism is
more a reflection on the examiners than on the
system itself. the scheme of selection however
perfect it may be on paper may be abused in
practice. that it is capable of abuse is number a
ground for quashing it. we do number think that the total arrived at by adding up the
separate marks awarded for the different qualities is always
a true measure of a candidates suitability. an illustra-
tion from periakaruppans case would serve to clarify the
point. of the five qualities mentioned there suppose a
candidate secures full 15 marks for extra-curricular activi-
ties but fails to get any credit under any of the other four
heads and anumberher candidate gets a few marks under each
head aggregating say 14 marks one mark less than the
total marks secured by the first candidate. which of the
two should be companysidered more qualified for admission to
medical profession ? it would take great companyrage we think
to hold that the candidate who secured 15 marks was more
suitable.  1  1964 6 s.c.r. 368  p. 382 . 5--104sci/76
the question therefore is whether rule 9 read with part
iv of schedule 11 of the mysore recruitment of gazetted
probationers  class i and ii posts appointment by companypeti-
tive examinations  rules 1966 required the selection
committee to award separate marks for the seven qualities
mentioned in part iv. rule 9 so far as it is relevant for
the present purpose says that the companymission shall call
for a personality test five times the number of candidates
as there are vacancies in the services in the order of
merit on the basis of the results of written papers. personality is companymonly understood as an aggregate of
traits that identifies a person and distinguishes him from
others. quite often with some practical aim like selecting
the most promising students for admission to particular
courses or picking out the suitable ones from a group of
job applicants emphasis is laid some of the attributes. the end result may number be an assessment of the whole per-
sonality but attributes are abstracted for study in an
attempt to evaluate the man for the purpose in view. part
iv of schedule 11 which provides the details of the test
calls it a personality test the object of which is to
assess the personal suitability of the candidates for the
service or services for .which they have applied. the
candidates will be asked questions of general interest on
the answers to which it appears the assessment would
depend. it is further provided that the qualities to be
judged are mental alertness critical powers of assimila-
tion clear and logical exposition balance of judgment
variety and depth of interest ability for social companyesion
and leadership and intellectual depth. it seems to us in
the companytext that the qualities are mentioned only as guide
as indicating the attributes to be kept in view in assess-
ing the personality of the candidates. it seems hardly
possible in the test companytemplated to allocate separate marks
for each of the various qualities specified because most of
them overlap one anumberher and are so intermixed that they
cannumber be separated also the test carries a maximum mark
of 200 it seems a little absurd to suppose that the seven
qualities to be judged at the interview are of equal value
each carrying 28 4/7 marks. this further companyfirms the view
that part iv of schedule 11 never intended that separate
marks should be allotted for the several qualities stated
therein.


civil appellate jurisdiction civil appeal number 2224 of
1987.
from the judgment and order dated 19.6.1986 of the
calcutta high companyrt in civil order number 2278 of 1985.

n. kacker and sukumar ghosh for the appellants. k. sen d.n. mukherji ranjan choudhary n.r. choudhary for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. special leave granted. this appeal is directed against the judgment and order
of the high companyrt of calcutta dated 19th of june 1986 in
civil order number 2278 of 1985. on or about 11th of june 1977
an unregistered deed of agreement between the four brothers
being the appellants number. 1 to 4 and their eldest brother
respondent number1 was entered into regarding partition of
joint movable and immovable properties and the same were
referred to three arbitrators namely three appellants number. 5 6 and 7 herein. on or about 2nd of july 1977 the same
agreement was re-written on a fresh stamp paper and the same
was registered by which the abovenamed arbitrators were
given the option to take assistance of one two or more
persons. the dispute related-to certain properties among the
brothers in chinsurah the district of hooghly in the state
of west bengal. the three arbitrators took the assistance of
appellant number 8 and he functioned and acted as one of the
arbitrators. on or about numberember 28 1977 the arbitrators explained
their award to the parties and made and signed the award. on
or about 1st december 1977 the eldest brother filed an
application under section l l of the arbitration act 1940
 hereinafter called the act  before the learned munsif
arambagh being misc. case number 74 of 1977. the appellants
number. i to 4 filed an application under section 14 of the act
before the learned sub judge hooghly at chinsurah praying
for a direction on the arbitrator to file the award in the
court in misc. case number 28 of 1977. the arbitrators filed
the award before the learned sub-judge hooghly at chinsurah
on 28th of january 1978. on 26th of july 1978 the learned
munsif arambagh ordered interim injunction on the parties
including the arbitrators to maintain status quo till the
disposal of misc. case number 74 of 1977 initiated by the
appellant number l. on 14th of august 1978 the arbitrators
made an application before the learned sub judge hooghly at
chinsurah to return back the award to enable them to present
the same before the sub-registrar for registration. on 2nd
september 1978 the learned sub judge fixed the hearing of
the arbitrators application to return the award to them. in
january 1980 the arbitrators application was heard and the
learned sub judge ordered return of the award to the
arbitrators to enable them to present the same for
registration. the high companyrt of calcutta in civil rule number 621 of
1980 on 6th march 1981 set aside the aforesaid order of the
learned sub judge holding that during the subsistence of the
interim injunction order on the arbitrators to maintain
status quo the arbitrators companyld number take
back the award for presenting the same for registration. the
high companyrt ordered that the arbitrators application dated
14th of august 1978 should be kept pending and be heard
when the injunction order was vacated. on 20th december
1982 the learned munsif arambagh dismissed misc. case number
74 of 1977 and the interim injunction order ipso facto was
discharged. the arbitrators therefore renewed their prayer
before the learned sub judge to return the award. on 25th of
february 1983 the learned sub judge dismissed the
arbitrators application and did number direct return of the
award holding that the limitation for the registration of
the award had already expired. the high companyrt in civil order
number 589 of 1983 on 19th of september 1983 directed the
learned sub judge to return back the award to the
arbitrators holding that it was the registrar and number the
sub judge who companyld determine the question of limitation for
the purpose of registration of the award. the learned sub
judge. hooghly at chinsurah on 23rd of numberember 1983
ordered returning back of the award to the arbitrators. on
24th of numberember 1983 the arbitrators got back the award
from the companyrt. on 25th numberember 1983 i.e. the very next
day the arbitrators presented the award before the sub-
registrar arambagh for registration. the sub-registrar
arambagh on 25th of numberember 1983 registered the award. the
high companyrt in civil order number 9696 w  of 1984 on 24th july
1984 had sent back the award to the sub-registrar to
reconsider the question of limitation and found that the
award was presented within time as the period during which
the judicial proceedings were pending namely 28th of
january 1978 to 24th of numberember 1983 should be excluded
in view of the principle laid down under section 15 of the
limitation act. on 19th june 1986 by the judgment and order
impugned the high companyrt quashed the registration under
article 227 of the companystitution holding that the award had
been presented for registration beyond time. it is the
validity and propriety of that order which is under
challenge in this appeal. the limitation period for registration is four months
from the date of its execution. the award was made on 28th
of numberember 1977 and it was presented for registration to
the sub-registrar on 25th of numberember 1983. section 23 of
the registration act 1908  hereinafter called the
registration act  stipulates that the time for registration
is four months from the date of its execution. section 25 1
of the registration act provides that if owing to urgent
necessity or unavoidable accident any document executed or
copy of a decree or order made is number presented for
registration till after the expiration of the time
hereinbefore prescribed the registrar in cases where the
delay in presentation does number exceed four months may
direct that on pay-
ment of a fine number exceeding ten times the amount of the
proper registration-fee such document shall be accepted for
registration. sub-section  2  of section 25 provides that
any application for such direction may be lodged with a sub-
registrar? who shall forward the same to the registrar. therefore the cumulative effect of sections 23 and 25 read
together is that total period of eight months is available
for registration if the companyditions are fulfilled. the high
court had held that in this case the award has been
registered after six years and as such was beyond time. it
was held before the high companyrt that numberregistration was
permissible beyond the period fixed under section 25 read
with section 23 of the registration act and any registration
beyond such period would be void. but in this case
admittedly the award was in the companyrt of the learned munsif
from 28th of january 1978 to 24th of numberember 1983.
therefore this period that is to say from 28th january
1978 to 24th numberember 1983 the award was in companyrt and this
was manifest from the order in misc. case number 28 of 1977.
the arbitrators had made an application on or about 14th
august 1974 for return of the award but that was number done. furthermore there was an injunction on 26th july 1978
which was only vacated on 20th december 1982.
we have to bear in mind two maxims of equity which are
well settled namely actus curiae neminem gravabit-an act
of the companyrt shall prejudice numberman. in brooms legal
maxims. 10th edition 1939 at page 73 this maxim is
explained that this maxim was founded upon justice and good
sense and afforded a safe and certain guide for the
administration of the law. the above maxim should however
be applied with caution. the other maxim is lex number companyit
ad lmpossibilia  brooms legal maxims-p. 162 -the law does
number companypel a man to do that which he cannumber possibly
perform. the law itself and the administration of it said
sir w. scott with reference to an alleged infraction of the
revenue laws must yield to that to which everything must
bend to necessity the law in its most positive and
peremptory injunctions is understood to disclaim as it
does in its general aphorisms all intention of companypelling
impossibilities and the administration of laws must adopt
that general exception in the companysideration of all
particular cases. in this case indisputably during the period from 26th
of july 1978 to 20th december 1982 there was subsisting
injunction preventing the arbitrators from taking any steps. furthermore as numbered before the award was in the custody of
the companyrt that is to say 28th of january 1978 till the
return of the award to the arbitrators on 24th of
numberember 1983 the arbitrators or the parties companyld number
have presented the award for its registration during that
time. the award as we have numbered before was made on 28th of
numberember 1977 and before the expiry of the four months from
28th numberember 1977 the award was filed in the companyrt
pursuant to the order of the companyrt. it was argued that the
order made by the companyrt directing the arbitrators to keep
the award in the custody of the companyrt was wrong and without
jurisdiction but numberarbitrator companyld be companypelled to
disobey the order of the companyrt and if in companypliance or
obedience with companyrt of doubtful jurisdiction he companyld number
take back the award from the custody of the companyrt to take
any further steps for its registration then it cannumber be
said that he has failed to get the award registered as the
law required. the aforesaid two legal maxims-the law does
number companypel a man to do that which he cannumber possibly perform
and an act of the companyrt shall prejudice numberman would apply
with full vigour in the facts of this case and if that is
the position then the award as we have numbered before was
presented before the sub-registrar arambagh on 25th
numberember 1983 the very next one day of getting possession
of the award from the companyrt. the sub-registrar pursuant to
the order of the high companyrt on 24th of june1985 found that
the award was presented within time as the period during
which the judicial proceedings were pending that is to say
from 28th of january 1978 to 24th of numberember 1983 should
be excluded in view of the principle laid down in section 15
of the limitation act 1963. the high companyrt therefore in
our opinion was wrong in holding that the only period which
should be excluded was from 26th july 1978 till 20th
december 1982. we are unable to accept this position. 26th
july 1978 was the date of the order of the learned munsif
directing maintenance of status quo and 20th of december
1982 was the date when the interim injunction was vacated
but still the award was in the custody of the companyrt and
there is ample evidence as it would appear from the
narration of events hereinbefore made that the arbitrators
had tried to obtain the custody of the award which the companyrt
declined to give to them. the principles enunciated by this
court in nityananda m. joshi and others v. life insurance
corporation of india and others 1970 1 s.c.r. 396 would
have numberapplication to the facts of this case. it was urged before us that an award affecting the
immovable properties which was number registered and which was
made outside the companyrt companyld number form the basis of an award
and an unregistered award in other words companyld number form the
basis of the award. we are unable to accept that position. there is numberdispute to the proposition that an award
affecting immovable properties as in the instant case should
be
registered. it is therefore number necessary to discuss in
detail the ratio of a the decision of the full bench of the
andhra pradesh high companyrt in m. venkataratnam v. m.
chelamayya a.i.r.


criminal appellate jurisdiction criminal appeals number. 205
and 206 of 1968.
appeal from the judgment and order dated february 21 1968 of
the kerala high companyrt in criminal revision petitions number. 415 and 416 of 1967.

p. singh and m. r. k. pillai for the appellants  in both
the appeals . b. pai p. n. tiwari o. c. mathur and bhajar ram
rakhiani for the respondent  in both the appeals . the judgment of the companyrt was delivered by
sikri c.j. these appeals are on certificates granted by the
high companyrt of kerala. the only question in these appeals is
whether the workmen doing work in the premises of the res-
pondent are workers within the meaning of sec. 2 1  of the
factories act 1948.
section 2 1  of the factories act 1948 reads as follows
worker means a person employed directly or
through any agency whether for wages or number
in any manufacturing process or in cleaning
any part of the machinery or premises used for
a manufacturing process or in any other kind
of work incidental to or companynected with the
manufacturing process or the subject of the
manufacturing process
the respondent was companyvicted under sec. 92 of the factories
act for using a building as a factory without obtaining the
previous permission in writing of the chief inspector of
factories for failing to apply for registration and grant
of licence for the factory and for failing to maintain a
muster roll of the workers employed in the factory in one
case and for failing to give attendance cards to every
person employed in the factory in the other case. the
respondent was sentenced to pay a fine of rs. 20/ in each
case. he was also directed under sec.102 of the factories
act to rectify the defects within a specified period. the respondent filed a revision petition in the high
court. the high companyrt held that the work that was being
carried out in the premises of the respondent amounted to
manufacturing process. this question has number been debated
before us. the high companyrt further held that the workmen
working in the premises of the respondent were number workers
within the meaning of sec. 2  1  of the factories act. it
is this part of the decision that has been challenged in
appeal by the state of kerala. the nature of the work done was described in a letter pro-
duced by the prosecution. this letter is number printed on the
record but the high companyrt summaries the document as follows
this document shows that as and when catches
of prawns are made a companysignment of prawns is
brought to the premises in a lorry at any time
of the day or the night that the women and
girls of the locality who form a casual
heterogeneous miscellaneous and irre-
gular group companye at their companyvenience and do
the peeling washing etc. at piece-rates and
that there are numberspecified hours of work number
is there any companytrol by the petitioner over
the irregularity and attendance or of the
nature manner or quantum of their work. the
same workers after finishing the work in the
premises of the petitioner go to other
similar premises in the locality where other
lorry loads of prawns are taken. in other
words if more prawns are caught at a
particular time they are brought and
distributed among several premises are brought
and distributed among several premises like
the petitioners and the local women and girls
collect at the several premises and do the
work at piece rates. the same workers do number
go to the same premises on different
occasions and the owners of the several. premises do number have any companytrol over the
manner or quantum of work these women and
girls do the rates of remuneration naturally
depend upon the quantity of prawns available
the number of women and girls that companye to do
the work- the hour of the day or the night
when the catches arrive etc. sometimes for
days numberwork is done in the premises. the high companyrt after referring to the decisions of this
court in dharangadhara chemical works limited v. state of
saurashtra 1  a decision under the industrial disputes act
chintaman rao anumberher v. the state of madhya pradesh 1
and. state of kerala v. v. m. patel 1 . decisions under the
factories act held
it will be apparent that the women and girls
who assemble and do the work when a catch of
prawns is brought to the premises of the
petitioner are number workers companying within the
definition of the factories act. the
petitioner does number insist a to who should
do the job or how it should be done he only
wants the work to be done for the agreed
remuneration without spoiling the prawns i.e. within a short time.  a quantity of prawns is
taken for peeling cleaning washing etc. by a
particular individual for a fixed
remuneration and that individual with the
assistance of others whom she employs
finishes the job as quickly as possible
the learned companynsel for the appellant companytended that it was
erroneous on the part of the high companyrt to have applied the-

a.i.r. 1957 s.c. 264  2  1958 s.c.r. 1340
 3  1960 k.l.j. 1524
decision of this companyrt in dharangadhara chemical works limited
vs. state of saurashtra 1  a case under the industrial
disputes act to the definition of worker in the factories
act. he fairly pointed out that anumberher division bench
applied the same test in a dispute arising under the
factories act.  see birdhkhand sharma v. first civil judge
nagpur   2  . but nevertheless he urged that we should
refer the case to a larger bench. we see numberhing wrong in
the decision of this companyrt in chintaman rao anumberher v. the
state of madhya pradesh 3 . on the companytrary we are of the
opinion that the case has been rightly decided. the scheme
of the factories act clearly shows that the test adopted by
this companyrt is the companyrect one. it would be impossible to
apply many provisions of the factories act to the workers
of the type we are companycerned with here if we were to hold
that they were workers within the definition of the
factories act. we are really surprised that the high companyrt
certified this case to be a fit case for appeal to this
court. after this companyrt had laid down a test to be applied
for determining who were workers within the meaning of the
factories act the high companyrt should have treated the
question of principle as numberlonger open.