Fazal Rab Choudhary Vs. State of Bihar - Court Judgment

Excerpt:
- [j.r. mudholkar,; k. subba rao,; r.s.bachawat,; raghuvar dayal and; v. ramasw, jj.] a firm doing business in bombay entrusted goods worth rs. 35,500 the railway for delivery in delhi. the goods were consigned to "self" and the firm endorsed the railway receipts to a bank against an advance of rs. 20,000 made by the bank to the firm. the firm also executed a promissory note in favour of the bank for that amount. when the goods reached the destination, the bank refused to take delivery, on the ground that they were not the goods consigned by the firm. the bank, thereafter filed a suit for the recovery of the value of the goods. the trial court dismissed the suit. on appeal by the bank, the high court allowed the appeal and decreed the claim for rs. 20,000 on the ground that as pledgee of the goods, the bank suffered loss only to the extent of the loss of its security. both the bank and the railway appealed to this court, and it was contended on behalf of the railway that the endorsement of the railway receipt in favour of the bank, did not constitute a pledge of the goods covered by the receipt and that the bank had no right to sue for compensation. held: (per subba rao, raghubar dayal and bachawat, j j): the firm by endorsing the railway receipts in favour of the bank, for consideration. pledged the goods covered by the said receipts, to the bank, and the bank being the pledgee could maintain the suit for the recovery of the full value of consignment amounting to rs. 35,500. [264 h; 265 d-e] on a reasonable construction of s. 178 of the contract act, 1872, ss. 4 and 137 of the transfer of property act, 1882, and ss. 30 and 53 of the indian sale of goods act, 1930, an owner of goods, can make a valid pledge of them by transferring the railway receipt representing the said goods. to the general rule expressed by the maxim nemo dat quod non habet (no one can convey a better title than what he had), to facilitate mercantile transactions. the indian law has grafted some exceptions, in favour of bonafide pledgees by transfer of documents of title from persons. whether owners of goods who do not possess the full bundle of rights of ownership at the time the pledges are made, or their mercantile agents. to confer a right to effect a valid pledge by transfer of document of title relating to goods on persons with defects in their title to the goods. and on mercantile agents, and to deny it to the full owners thereof, is to introduce an incongruity into the act. on the other hand, the real intention of the legislature will be carried out if the said right is conceded to the full owner of goods and extended by construction to persons with defects in their title to the goods or to mercantile agents. a pledge being a bailment of goods under s. 172 of the contract act, the pledgee, as a bailee. will have the same remedies as the owner of the goods would have against a third person for deprivation of the said goods or injury to them under s. 180 of the act. [264 a-c, h] ramdas vithaldas durbar v.s. amarchand and co., (1916) l.r. 43 i.a. 164 and the official assignee of madras v. the mercantile bank of india, ltd. (1934) l.r. 61 i.a. 416, referred to. per mudholkar and ramaswami jj. (dissenting): there was no valid pledge of the consignments of goods represented by the railway receipt in favour of the bank and the bank was not entitled to sue the railway for compensation for the loss of goods, relying upon the endorsements of the railway receipts in its favour. [272 g-h] after the passing of the indian contract (amendment) act, 1930, the legal position with regard to the pledge of railway receipts, is exactly the same in indian law as it is in english law, and consequently, the owner of the goods cannot pledge the goods represented by a railway receipt, by endorsing the railway receipt, unless the railway authorities were notified of the transfer, and they agreed to hold the goods as bailee of the pledgee. under the amended law a valid pledge can no longer be made by ever.v person "in possession" of goods. it can only be made by a mercantile agent as provided in s. 178 of the contract act (after amendment in 2930) or by a person who has obtained possession of goods under a contract voidable under s. 19 or s. 19a of the contract act, as provided by s. 178 0 the act. or by a seller or buyer in possession of goods, after sale. as provided in s. 30 of the indian sale of goods act. [271 f-g; 272 c-d] further, though a railway receipt and all other documents enumerated in s. 2(4) of the sale of goods act are assimilated to bills of lading for the purpose of the right to stoppage in transit and a pledge under s. 178 of the contract act, its legal position is the same as in english law, so that, no rights are created, merely by reason of the endorsement of a railway receipt by the consignee between the endorses and the railway company which had issued the receipt to the consignee the only remedy of the endorsee being against the endorser. the negotiation of the receipt may pass the property m the goods, but it does not transfer the contract contained in the receipt or the statutory contract under s. 74e of the indian railways act. negotiability is a creature of a statute or mercantile usage, not of judicial decisions apart from either. so, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt cannot be accorded the benefits which flow from negotiability under the negotiable instruments act, so as to entitle the endorsee, as the holder for the time being of the document of title, to sue the carrier --the railway authority--in his own name. if the claim of the bank was as an ordinary assignee of the contract of carriage, then it had to prove the assignment. in the absence of proof of such assignment, or of the existence of any practice of merchants treating a railway receipt as a symbol of goods making a pledge of the receipt a pledge of goods, and in view of cl. (3) of the notice printed at the back of the receipt that an endorsement made on the face of the receipt by the consignee was only meant to indicate the person to whom the consignee wished delivery of goods to be made if he himself did not attend to take delivery, the bank had no right to sue the railway. [273 e-g; 274 d-g] since the language of s. 178 of the contract act is clear and explicit, if any hardship and inconvenience is felt because such a practice of treating the receipt as a symbol of goods were not recognised. it is for parliament to take appropriate steps to amend the law and it is not for courts to legislate under the guise of interpretation. [275 g]order1. special leave limited to the question of sentence only.2. appellant is convicted for having committed an offence under section 377 i.p.c., in that he committed an unnatural offence upon a young boy who had come to his house to take a syringe. the learned magistrate convicted him for the aforementioned offence and sentenced him to suffer r.i. for three years. while recording the order of sentence, the learned magistrate observed:although no previous conviction is proved against the accused but i think accused is not entitled to get any benefit of probation in this case because offence is serious and heinous. i, therefore, sentence the accused to undergo r.i. for three years.the appellant preferred an appeal which was heard by addl. judicial commissioner, ranchi. the appellate court affirmed the finding of the trial court and accordingly confirmed the conviction. the learned judge has not discussed the question of adequacy or otherwise of the sentence imposed upon the appellant. when the matter was taken to the high court in revision at the instance of the appellant, the learned judge of the high court dismissed the revision in limine, observing that the case has been proved and the revision is without merits.3. the offence is one under section 377 i.p.c., which implies sexual perversity. no force appears to have been used. neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. however in judging the depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. we feel there is some scope for modification of sentence. having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to r.i. for 6 months. to the extent of this modification in the sentence, the appeal is allowed.

Judgment:
ORDER

1. Special leave limited to the question of sentence only.

2. Appellant is convicted for having committed an offence under Section 377 I.P.C., in that he committed an unnatural offence upon a young boy who had come to his house to take a syringe. The learned magistrate convicted him for the aforementioned offence and sentenced him to suffer R.I. for three years. While recording the order of sentence, the learned Magistrate observed:

Although no previous conviction is proved against the accused but I think accused is not entitled to get any benefit of probation in this case because offence is serious and heinous. I, therefore, sentence the accused to undergo R.I. for three years.

The appellant preferred an appeal which was heard by Addl. Judicial Commissioner, Ranchi. The Appellate Court affirmed the finding of the trial court and accordingly confirmed the conviction. The learned judge has not discussed the question of adequacy or otherwise of the sentence imposed upon the appellant. When the matter was taken to the High Court in revision at the instance of the appellant, the learned judge of the High Court dismissed the revision in limine, observing that the case has been proved and the revision is without merits.

3. The offence is one under Section 377 I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. However in judging the Depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. We feel there is some scope for modification of sentence. Having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to R.I. for 6 months. To the extent of this modification in the sentence, the appeal is allowed.