PURSHOTTAM DAS BANARSIDAS Vs. STATE

JUDGEMENT

(1.) This is a reference by the Additional District Magistrate, Kanpur recommending that an order passed by the Special Railway Magistrate, First Class, Kanpur purporting to act under Section 523, Criminal P. C. be set aside. The learned Additional District Magistrate, who I must say, has written a well-reasoned and sound order has not recommended that another order be passed instead, but his intention does seem to be that another order be passed by this Court.

(2.) There is no dispute about the facts which are as follows:

(3.) Messrs. Harshad Eai Natvar Lal who are opposite party before me, consigned 240 bags of white zira from Unjha railway station to self at Kanpur. The railway receipt was sent by them to the Bank of Baroda at Kanpur with instructions to deliver it to Messrs. Baldeo Das Sita Ram of Kanpur on their paying RS. 30,000, the price of the goods. Messrs. Baldeo Das Sita Ram took time in finding the necessary money and in the meantime some one, who remains unknown and untraced, forged a railway receipt and on its strength took delivery of the goods from the railway at Kanpur. The forger then pawned the goods with Messrs Parsbotam Das Benarsi Das of Kanpur, the applicant before me, who on the security of the goods, advanced to him Rs. 16,000. The forger after collecting Rs. 16,000 absconded. In the meantime the Bank of Baroda presented the genuine railway receipt at the Kanpur railway station for the goods and then it was discovered that the delivery had been taken on a forged receipt. The railway reported the matter to the police who started investigation. The police traced out the goods in the godown of the applicant and seized them. After investigation the police came to the conclusion that the applicant had acted bona fide in taking possession of the goods from the forger. As the forger remained untraced, the police submitted a final report to the learned Magistrate and sought his orders regarding the disposal of the goods. The learned Magistrate ordered them to be delivered to the railway. That order was passed without hearing the applicant who, on hearing about it, made an application to the learned Magistrate for reconsidering it. The learned Magistrate heard the parties and by his order under revision refused to alter his earlier order. The learned Magistrate observed : "That delivery of the goods was taken from the railway by practising fraud upon it, that the railway was the aggrieved party and that the goods be restored to it because it has been wrongfully dispossessed of them." He accepted the contention of the opposite party that the forger had no title to the goods and could pass no better title to the applicant. Messrs Harshad Rai Natvar Lal and the railway have joined hands and it is Messrs Harshad Rai Natvar Lal who have appeared before me to oppose the reference. The learned Additional District Magistrate is of the opinion that when it is not made out that the applicant had committed any offence, the goods should have been restored to him and not to the railway.