TMI Blog1953 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is the Sales Manager of the Mills. He was sentenced to four months' rigorous imprisonment and a fine of ₹ 1,00,000 on. each count. In appeal the sentence of imprisonment was upheld but the fine was reduced to ₹ 10,000 on each count. The substantive sentences are to run concurrently. A Government of India Notification dated 2nd February, 1946, required every manufacturer to submit true and accurate information relating to his undertakings to the Textile Commissioner C.S.T. Section at Bombay. In compliance with this Order the first appellant submitted a return, signed by the third appellant, on 10th March, 1947. This return is Exhibit A-1. It showed that 13 bales of cloth (20 half bales and 3 full bales) were delivered to Messrs. Dwarkadas Khetan Company of Bombay during the month of February, 1947, on behalf of the quotaholder Shree Kishan Company. Another return of the same date (Exhibit A-2), also relating to the month of February, 1947, showed that 6 bales were delivered to the same Dwarkadas Khetan Company on behalf of another quota-holder Beharilal Bajirathi. A note on the back of each printed form states. By 'delivered 'or delivery &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been received and asking it to prepare a delivery order. The first appellant then debits Dwarkadas Company with the price and not the purchaser. For payment it looks to Dwarkadas Company. Upon receipt of this advice slip the first appellant's office -prepares the delivery order and delivers the goods to the party concerned. The person receiving the goods then signs the delivery order in token of receipt and the signed order is sent to Dwarkadas Company who, after making the necessary entries in their books, return the order to the Mills office. It will be seen that the first appellant has no direct dealing, with the purchaser. It acts through Dwarkadas Company in every case. It will now be necessary to trace the history of the two consignments relating to the 13 bales and the 6 bales separately. We will deal with the 13 bales first. The quota-holder in respect of the 13 bales was Shree Kishan Company. This firm was an up-country firm and so it was necessary for it to appoint a local agent in Bombay for making payments and receiving delivery. There was some confusion about the agent so appointed; at first one Dharsi Moolji was appointed and then P. C. Vor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eupon told Dwarkadas to keep the goods in the Dady Seth godown. On the same day, apparently before all this occurred, the first appellant credited Dwarkadas Khetan with the money he had received from Dharsi Moolji on account of the 13 bales, less Dwarkadas' commission. In other words, this adjustment in the accounts was the equivalent of payment for the 13 bales by Dwarkadas Khetan to the first appellant on account of the purchaser Shree Kisban Company. It will be remembered that Dwarkadas Khetan Company were -the sole selling agents and they alone were responsible to the Mills for orders' which. were placed through them. The muddle between Dharsi Moolji and P. C. Vora was cleared up between 3rd March, 1947, and 14th March, 1947. On 3rd March, 1947, Dwarkadas Khetan returned the ₹ 14,000 which Dharsi Moolji had paid and on 14th March, 1947, accepted the money from P. C. Vora. The alteration in the ready sale note of 21st February, 1947, was presumably made because of these facts. Four days later, Dwarkadas Khetan delivered the goods to P. C. Vora. (There was no need to make any alterations in the first appellant's account books because Dwarkadas was respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to whom deliveries are made under any other General or Special Permission or Order of the Textile Commissioner. The name of artificers or any other persons shall be 'mentioned in column 3 and against their names, number and date of General or Special Permission shall be mentioned in column 2. III. By 'delivered' or 'delivery'ismeantphysical delivery of cloth in bales or in pieces but not cloth which, though paid for, is still in the physical possession of the seller. The form was filled in as follows : In the column headed 11 Full name and address of quota-holder the name of ShreeKishan Company is entered. In the column headed Full name and address of person to whom delivered the name of Dwarkadas Khetan Company is entered. The question we,have to decide is whether these two entries are inaccurate. Dealing first with the learned Solicitor-'General's argument regarding the construction of the words used in the form, we are of opinion that it cannot be accepted. The second clause of the portion marked Important towards the head of the form states that all stocks pledged or hypothecated with banks or others must also be included, and Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control. This would seem exactly to meet the case of Dwarkadas Khetan. Possession is an ambiguous term. The law books divide its concept into two broad categories, (1) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact. The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession. But what of an agent ? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immedi- ate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would surely be that of the agent. And so with a del credere agent, because such a person is the agent of the seller only up to a point. Beyond that he is either a principal or an agent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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