P L D 1959 (W (PLP)

Sharif Ashgar appellant was sentenced, by the Special Judge, Muzaffargarh, by his judgment dated the 18th November 1957, to three years' rigorous imprisonment and a fine of Rs. 50,000 or in default to two years' further rigorous imprisonment, on a charge under section 420, P. P. C. He has come to this Court in appeal against his conviction and sentence.

2. The facts on which the conviction was founded briefly are that the Chief Engineer of the Thal Development Authority invited tenders for the supply of 30,000 cubic feet of Deodar timber in blocks. Sharif Asghar, who is a contractor, offered a tender which was accepted on 7th February 1953, at the rate of Rs. 4‑3‑6 per cubic foot, and an order to supply the quantity of timber tendered for was placed upon him. The conditions of the tender, amongst others, were that (a) timber had to be inspected at the despatching station and also at destination, (b) that 80% of the price of timber inspected and passed had to be paid to the contractor at the station of despatch after the production of the railway receipt, and (c) that the remaining 20% had to be paid after the final scrutiny and passing of the timber at destination. Muhammad Afzal S. D. O. and Abdul Ghafoor Overseer had to check the timber at the des patching stations and Abdur Rahman, Superintending Engineer, was to hold the final check at the destination. Sharif Asghar contractor made arrangements for the purchase of timber at Bannu and Tank and invited inspection. On 6th April 1953 and 7th April 1953 timber produced by him was checked by Muhammad Afzal and Abdul Ghafoor, and the allegations are that about 6,000 cubic feet of timber was passed as good timber; and a cheque for Rs. 19,271‑8‑0 on the basis of 80% was issued on 7th April 1953. This timber was despatched on the following day, 8th April 1953, to Leiah and Karor and the railway receipt was issued on that date. There was in this case a departure from the condition of the tender in that payment was made before the production of the railway receipt. This was obviously an irregularity on the part of Muhammad Afzal S. D. O. and Abdul Ghafoor Overseer.

4. Again, on 9th, 10th and 11th April 1953, timber offered by Sharif Asghar contractor was inspected at Bannu and Tank, and after examination by the S. D. O., it was passed and despatched to Leiah and Karor and on 11 th April 1953, again without the pro duction of the railway receipt, a cheque for Rs. 40,500 was issued by Muhammad Afzal to Sharif Asghar contractor. The timber passed on that occasion was approximately 7,980 cubic feet. The railway receipts relating to the despatch of timber were issued on 11th, 12th, 13th, 14th and 15th April. Payment on this occasion was in excess of the amount actually due to Sharif Asghar on 80% rule. In respect of this payment an endorsement was made by Muhammad Afzal S D. O. in his book that some advance pay ment at the rate of 80% ‑has been made to the contractor Sharif Asghar in respect of 4,015 cubic feet which has not been supplied, to enable him to make purchases of timber in .the local market. In that endorsement, it was said that the contractor's financial position was not very sound and he was in need of financial assis tance, and as timber was, urgently required for construction work at Thal, advance payment had been made to him by way of financial assistance.

5. Sometime after the 11th of April 1953 it came to the notice of the authorities at the destination that payment of over Rs. 50,000 had been made to the contractor but no timber had by then arrived. This aroused the suspicion of the authorities and they summoned Muhammad Afzal S. D. O. along with the railway receipts.

6. The timber despatched ultimately arrived at the destination at Karor and Leiah and was checked on 4th and 5th May 1953 by Abdur Rahman, Superintending Engineer. After this check at the destination it was found :‑ (a) that a fairly large number of blocks were of Anandar timber, while Deodar had been tendered for; (b) that a large number of blocks were irregular in shape and contained knots and appeared to be of inferior quality ; and (c) that the total number of blocks received at Karor and Leiah were 1192 while according to the measurement book pay ment had been made for 1418 blocks. On calculation it was found that the timber at the destination was really worth Rs. 22,789‑2‑0 while payment was made for timber of the value of Rs. 59,771‑8-0. On the allegations that the timber was not of the quality tendered for, and the quantity was short of the price paid, a case of cheating under section 420, P. P. C. was instituted against Sharif Asghar contractor, and of criminal mis appropriation under section 409, P. P. Code against Muhammad Afzal, S. D. O., and Abdul Ghafoor, Overseer. It was also found that some of the railway receipts were tampered with, and charge under section 468, P. P. Code was also joined, but as no evidence was led to show when and where the tampering had taken place, that charge failed.

7. The trial Judge was of opinion that the evidence lent no countenance to charge of criminal misappropriation under section 409, P. P. C. against Muhammad Afzal, S. D. O. and Abdul Ghafoor, Overseer and lie, therefore, acquitted both of them. He found that Sharif Asghar, the present appellant, was guilty of cheating under section 420, P. P. Code in that the timber supplied was inferior in quality and short in quantity, and the price received by him was in excess of the amount due to him in respect of timber supplied. Sharif Asghar appellant said that there was no attempt at cheating at all, as the timber supplied was of the quality tendered for. As regards quantity he demanded accounts and said that he was prepared to account for the excess payment.

8. The question now before this Court is whether an offence under section 420, P. P. Code can be made out against the appellant. Mian Abdul Aziz (P. W. 1), the Additional Chief Engineer, Thal Development Authority, stated that the supply of the timber was subject to two checks, an initial check at the station of despatch, from where the contractor had to make local purchases and to despatch timber to destination, and a second check at the desti nation. At the destination the timber received had to undergo another scrutiny and it was only after it had passed that scrutiny, that the timber had to be accepted and the balance of the price had to be paid to the contractor. He also said that the payments made after the first check were to be shown on running bills. This means that the payments were not final and were amenable to addition or subtraction. At the final check, timber could be rejected if it were found to be of inferior quality, and final payment had to be withheld if it were found to be short in quantity. On these questions he said : "It was the responsibility of the Divi sional Engineer or his representative to inspect the timber for its quantity and quality, * * * * It was essential both according to the terms of Exh. P. A. and departmental rules that the Divisional Engineer should check the goods at the destination and then make the payment. The payment of 80% cost is termed as running pay ment according to P. W. D. and meant to help the contractor. **** The object of checking and measuring at the destination is to find out that the goods have been received correctly or not before the final payment is made."

9. It has been contended on behalf of the appellant by his learned counsel that in view of the fact that it was a condition of the tender that timber supplied was liable to rejection at the final check, and final payment had to be made after the final check at the destination, the offence of cheating in respect of timber despatched is not complete. Acceptance was subject to final check and full payment had to be made thereafter. If the timber supplied was not to be acceptable to the Authority, it could be rejected, and the advance price paid could be adjusted towards further supplies, or could be recovered back from the contractor. There was no doubt overpayment in this case but it was made intentionally by Muhammad Afzal S. D. O. to render financial assistance to the contractor, and if any complaint has arisen to the Authority on this score, the charge lies at the door of Muhammad Afzal, S. D. O.

10. I am of opinion that on the facts established in this case, a charge of cheating under section 420, P. P. Code cannot arise against the appellant. If a person undertakes to supply goods of 'a specific description on the condition that goods will be subjected to scrutiny before final acceptance, and will be liable to rejection if they are discovered to be of different quality and quantity, and supplies goods which are not of the specified quality and takes the risk of loss arising from rejection, he does not commit the offence of cheating as defined in section 415 of the Pakistan Penal Code. He commits no deception unless he so plays with the goods as to A conceal its defects, and gives to them the colour to appear as goods of the specified quality.

11. There can be no cheating without deception, and there can be no deception without misrepresentation, and misrepresenta tion takes place only when a person by his conduct changes the face of the article offered for acceptance. Will it be cheating if black iron is offered as gold ?

12. In the case in hand, the complaint was that the blocks were irregular in shape, that they were not free from knots and that some Anandar was produced in place of Deodar. There is no complaint that any attempt was made to conceal the knots, or to make irregular blocks look regular, or to give Anandar the colour and appearance of Deodar. If that had been done the case would no doubt have assumed the semblance of attempt to cheat. The appellant placed before the Authority timber which in his view was in accordance with the specified quality, and made no attempt to conceal the defects if any. There was complete choice in the Authority to reject the timber offered if it did not correspond to e the specifications. Submission of goods to inspection and rejec tion, without any attempt to conceal their defects, specially when the price is still in the hands of the inspecting authority, does not constitute the offence either of cheating or attempt to cheat. If it did few persons would have undertaken the business of supplying goods without handcuffs on their hands. In this case the evidence discloses no element of deception in the conduct of the appellant, and without deception the offence of cheating is not complete.

13. With regard to overpayment, it is in evidence that over payment was deliberately made by the S. D. O. in order to help the contractor. It has not been shown that there was any attempt on the part of the contractor to charge money for the timber which he had not yet supplied. On the other hand, the evidence dis closes that overpayment was made intentionally and with full knowledge by Muhammad Afzal, S. D. O. to render help to the appellant. There was a running account between the contractor and the Authority, and payments were subject to adjustments. On these facts, an offence of cheating under section 420, P. P. Code, cannot be established. The timber, which was said to be of inferior quality, has been accepted by the Development Authority and if there is any overpayment, it can be recovered after the adjustment of accounts. The conviction of the accused is not sustainable on the facts which are on record, and is hereby quashed. The sentence of imprisonment and fine is set aside. A. H. Appeal accepted.