Mobarik Ali Ahmed v. the State of Bombay
330 S.UPREME COURT REPORTS [1958]
~57 l\GANNADHAOAS .1.-This is an appeal by special
"""w;k Ali Ah11wd leave. The appellant before us was convicted by the
The I;,,,. 01 learned Presidency Magistrate, Third Court, Esplanade,
nomhay · Bombay, for the offence of cheating under s. 420 read
with s. 34 of the Indian Penal Code on three counts of [J;.'111111ad/!ada.•· J.
cheating, vi:: .. the first relating to a sum of Rs. 81,000,
the second relating to a sum of Rs. 2.30,000, and the
third relatin!~ to a sum 01· Rs. 2.36.900. He was
sentenced by- the learned Magistrate to two years
rigorous imprisonment and a fine of Rs. l ,000 on the
first count, to twenty-two months rigorous imprison
ment and a fine of Rs. 1,000 on the second count, and
two months rigorous imprisonment on the third count.
It was directed that the substantive sentences only on
the second and third counts are to run concurrently.
The prosecution was initiated on a private complaint
filed by one Luis Antonio Correa on June 30, I 952,
against four persons of whom the appellant was
designated therein as the first accused and one Sa ntram
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 could not 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 confirmed on appeal by the High Court at
Bombay.
~he complainant is a businessman from Goa and
was the director of a Ji.rm 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 complainant was
accordingly anxious to import rice urgently into Goa.
He got into touch with a friend of his by name Rosario
Carvalho in Bomhay who was doing business as a
commission agent. Carvalho in his turn got into touch
with one Jasawalla who was also doing business of
con:mission agent at Bombay in the name of Universal
Supply Corporation. This Jasawalla was previously
S.C.R. SUPREME COURT REPORTS 331
in correspondence with the appellant about business 1957
in rice. The appellant was at the time in Karachi and Mobarik Ali Ahme<i
was doing business in the name of Atlas Industrial and v. The State oj
Trading Corporation and also in the name of Ifthiar Bombay
Ahmed & Co. The telegraphic address of the complain- , _,. , J . f ll .agan11ac111aCtOs . ant was Colodmgco and that o the appe ant was
Ifthy. As a result of exchange of telegrams, letters
and telephone messages between Jasawalla and the
appellant on one side, Jasawalla and the complainant
on. the other, followed up by direct contacts between
the appellant and the complainant through telephone,
telegrams and letters, a contraet was brought about
for purchase, by the complainant from the appellant,
of 1,200 tons of rice at the rate of£ 51 per ton. to be
shipped from Karachi to Goa. The contract 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 courts 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 complainant to Jasawalla
as the agent of the appeJlant 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 2,000 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
complainant 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 complainant
332 SUPREME COURT REPORTS [1958)
195: paid moneys as shown below to Jasawalla and obtain-
Mobarik Ali Ahmeded receipts from him, purporting to be the agent of the
The ~late of appellant.
Bombay 1. On July 23, 1951 Rs. 81,000
lagannadhadas J. 2. On August 28, 1951 Rs. 2,30,000
3. On August 29, 19.51 Rs. 2,36,900
All these amounts are held to have been received by
the appellant in due course. It is admitted, however,
that no rice was in fact shipped to the complainant
and the amounts have not been returned back to the
complainant. The defence of the appellant is to the
effect that the amounts were not in fact paid to any
person who was his agent and not in fact received by
him at all and that he was unable to supply the rice
as the complainant did not comply with the terms of
the contract by opening a letter of credit at Karachi
or paying him in Pakistani currency. This defence
has not been accepted and the appellant has been
found guilty as charged by the courts below. He was
therefore convicted and sentenced as above stated.
ft is necessary to set out somewhat in detail the
essential facts held to have been proved by the courts
below to appreciate the legal contentions that have
been urged before us. As previously stated, the cgm
plainant got into touch with his friend Carvalho of
Bombay to help him in getting rice for consumption in
Goa and Carvalho in turn contracted Jasawalla for the
purpose. Before that time, Jasawalla, in the course 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 know of this from Jasawalla and
informed the complainant. Jasawalla also wrote a
letter to the complainant. The complainant sent a
telegram showing his willingness to open credit, if
1,200 tons of rice could 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
S.C.R. SUPREME COURT REPORTS 333
much rice as he wanted and demanded 25 % cash 1957
payment as advance. After ~ome tripartite corres- Mobarik Ali Ahmed
pondence, the appellant by his letter dated June 26, v. .
agreed to accept money in Bombay at the price of The State 01
£ 51 per ton of rice. Jasawalla by 'telegram dated Bombay
July 5, 1951, informed the appellant that the Goalaga11nadhadas J.
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
not get any information for the next few days. He
accordingly sent one Santram (accused 4 in the
·complaint) 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 1,200 tons of rice on the
complainant paying an advance sum of Rs. 1,50,000
at Bombay as 25 % deposit towards the price of the
said 1,200 tons of rice. On receipt of this information
the appellant wrote a letter dated July 12, to
Jasawalla wherein he confirmed 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
appellant's 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 complainant did not turn up at Bombay
with the funds and the appellant by his telegram dated
July 16, asked Jasawalla why there is no further infor-
mation about the transaction. By a telegram dated
July 17, he informed J asawalla 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 complainant sent a telegram to
Jasawalla informing him that he -was coming with
19s1 funds and that if the rice was not sl11pped it may be
MobarikAH A/1111edshipped by SS. Olinda which was about to start on
. '· July 21. The appellant also sent a telegram to
r11~0~;r,;~ of Jasawalla on July 18, asking why the deal was not
· coming on and that he had already reserved space by
.loga1111adhmlas J. f h 21 O J 1 19 · J )J the steamer o t e st. n u y agam asawa a
received a telegram from the appellant informing him
definitely that space was reserved in the steamer. The
complainant also sent a telegram to Jasawalla on the
same day informing him that he was coming and that
at least 500 tons must be shipped at once. The
complainant arrived at Bombay on July 20. The
indent, Ex. A, was prepared in triplicate and signed
by the complainant on the same day. The complainant
brought cheques and drafts to the tune of Rs. 81,000.
It would appear that at this stage the complainant
was asking that he should be allowed (for the time
being) to deposit only Rs. 50,000 as deposit for a ship
ment of 500 tons. But appellant insisted that
Rs. 1,50,000 should be paid as advance for 1,200 tons.
On or about July 21, the appellant sent a letter to
Jasawalla with a pro-forma receipt for Rs. 1,50,000
signed by him to be made use of by Jasawalla in what
ever manner he thought proper in connection with the
transaction then under way. The said receipt was
shown to the complainant who was shown also the
other correspondence that was received from the
appellant. Jasawalla by his letter dated July 22, to
the appellant confirmed the shipment of the deal of
1,200 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. 80,000 and that the balance would be paid after
hearing about shipment of 1,200 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 afternoon of that very day the parties went to
the office of accused 2 and there was again a further
conversation on the phone with the appellant who, on.
the phone, conveyed the assurance that payment to
accused 2 would be as good as payment to himself.
S.C.R. SUPREME COURT REPORTS 335
The complainant and Carvalho were hearing both the 1957
morning and afternoon talks between the appeHant Mobarik Ali Ahmed
and Jasawalla, on a second line. Thereupon the Th s
complainant paid the sum of Rs. 81,000 to Jasawalla ~o,:b~~ of
who passed a receipt (Ex. B) therefor on behalf of the , d'h d 1 Jl d h · J d ~aganna a as . appe ant an t e saio amount was passe 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
1,000 tons. According to the prosecution case the
appellant having received the sum of Rs. 81,000 as
above, changed his front from July 24, 1951. The
facts ·held to have been proved in respect of this
change of front may now be stated.
On July 24, 1951, the appellant sent to Jasawalla a
telegram mentioning difficulties created by the
Exchange Controller in shipping the goods. When
Jasawalla conveyed his protest and insisted upon the
shipping of the goods at once, the appellant sent a
telegram on July 25, informing him that the difficul
ties ·were of a minor character and that the space for
shipping was already booked. Jasawalla by his
telegram of the same date asked for confirmation of
loading of 1,200 tons by S.S. Olinda and requested
him. that if the full quantity could not be loaded, a
portion thereof might be sent immediately. The
appellant by his letter dated July 26, acknowledged
Jasawalla's letter dated 23rd (informing him to about
the payment of Rs. 81,000) 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 2,000 tons. By a letter dated July 26,
Jasawalla protested against the new condition. The
complainant sent a letter dated July 27, to Jasawalla
asking whether the rice was shipped by S.S. Olinda
1957 or not. On July 27, the appellant sent a telegram to
.'ifobadk Ali AhmedJasawalla asking for bank-guaragtee (for payment of
11., ~tate 01 balance). Jt does not appear that any question of
Bombay bank-guarantee was raised in the correspondence
.!.igmmadhadas J. between the parties, after Santram (accused 4) fixed
up the deal on the footing of payment of advance of
Rs. 1.50.000, 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 not fulfilling his part of
the contract after receiying 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.S. Umarai and also threatened
to break off negotiations if the parties had no
confidence 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 l, 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.S. Umaria. By that time Jasawalla had
made enquiries with Mackinons & .Mackenzie (shipping
agents) and was informed that no shipping space had
been reserved by the appellant and found the state
ment of the appellant in this behalf to be false.
Jasawalla sent copies of this correspondence between
him and the appellant to the complainant. That
correspondence indicated the appellant's position to
be that the rice would be shipped by S.S. Umaria
only if the load could be increased to 2,000 tons and
that the appellant stated that he got the sailing of
S. S. Umarai delayed by two days for the purpose.
The complainant thereupon informed Jasawalla that
he was prepared to accept the new deal for 2,000 tons.
Jasawalla by his telegram dated August 2, to the
appellant confirmed this new arrangement and by
another 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 complainant
S.C.R. SUPREME COURT REPORTS 337
and asked him to request the Portuguese Pro-Consul 19~
at Karachi to obtain exchange~guarantee. Between Mobarik Ali Ahmed
August 7 and 12, several letters and telegrams passed Th ~tat 1 between the complainant and Jasawalla on the one 'Iwmba~
0
hand and the appellant on the other. As a result of J'. dh-cl 1
efforts made in this interval, it appears that the Pro- aganna u us ·
Consul, 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 not insistirrn 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 complainant and
Jsawalla approached the concerned authority at Goa,
viz., one Mr. Campos, the Trade Agent to the Portuguese
Government. Mr. Campos thereupon sent telegram
on August 16, to the State Bank of Pakistan, to the
Pro-Consul, Mr. Alphonso, and to the appellant certi-
fying 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 complainant that the
papers before the Government were ready and that he
had done his best but that payment must be made.
In reply the complainant sent a telegram to the appel
lant on the same date stating that he did not under
stand the contents of his telegram and promised to
send the balance on loading. The complainant 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
complainant and to Jasawalla demanding 90 % deposit
as advance and threatened to break off if it was not
complied with. Thereupon Jasawalla sent a telegram
on the 22nd to the complainant to come to Bombay.
He informed the appellant the same day that the
M2SC/61-3
i957 complainant was coming down to Bombay to arrange
,\fobar;k AN Al111ie<1for 50 % deposit and asked the appellant to start load-
v. ing. On the 24th he wrote also a letter to the appel-
111~ State of
Bombay ]ant to the effect that the complainant would pay 50 %
1 Iii J advance minus the amount already paid and informed
""w"'"' "''"'' · him that the complainant would fly to Karachi. to
supervise the loading. The appellant thereupon 5ent
a telegram dated the 25th informing Jasawa!la that
everything was ready but hinted about the opening of
a Jetter of credit. Again on August 27, the appellant
sent a telegram to Jasawalla that stocks could not be
released unless the arrangement was fulfilled, i.e., 90 %
amount was paid. The complainant came to Bombay
with drafts and cheques to the tune of about
Rs .. 4,75,000 and contacted Jasawalla. He contacted
also the appellant on phone. He paid the sum of
Rs. 2,30,000 on August 28, 1951, to Jasawalla who
passed a receipt. Ex. F, therefor, on behalf of the
appellant. On August 29, the complainant paid
another sum of Rs. 2,36,900 to Jasawalla who passed
a receipt, Ex. G, therefor, on behalf of the appellant.
1t 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 acknowledged
receipt of these amounts in his correspondence and
that case has been also accepted. On the 29th itself
the appellant sent a telegram to Jasawalla as follows;
"Part consignment received, rest tomorrow, Penta
kota for the I st certain goods required alongside."
On receiving this telegram Jasawalla informed him by
a telegram dated August 31, that he was shocked that
no space was reserved, though everything had been
done on his side. The appellant sent a reply by tele
gram dated September l, 1951, protesting against the
language used by Jasawalla in the telegram and infor
med him that space was reserved but the Company
could not wait as the goods could not 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
S.C.R. SUPREME COURT REPORTS 339
person to Karachi on September 4. According to the 1957
complainant he stayed at Karachi for about two weeks. -
He was shown some godowns containing rice bags Mobarik Ali Ahmed
suggesting that they belonged to the appellant and The ~rare of
were ready for shipment. But he was not afforded Bombay
any opportunity for verifying that the stock was Jaga111iadhada1 J.
intended for shipment in respect of his . transaction.
The complainant 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 complainant's impression that this
was manoeuvred by the appellant. On his return back,
correspondence was again resumed between the appel-
lant and the complainant. By a letter dated Septem-
ber 21, the appellant promised to ship the goods by
S.S. Ismalia which would not be sailing in September
but would leave on October 3. On September 23, the
appellant sent another letter stating that S.S. Ismalia
was arriving 011 October 3 and not on September 26.
On October 3, the appellant wrote another letter to the
complainant informing him that S.S. Jsmalia was not
available. The complainant thereafter sent a telegram
to the appellant dated September 29, calling upon him
to ship the goods by S.S. Shahjehan if S.S. Ismalia was
not available. The complainant by a further letter
dated October I, called upon the appellant to ship the
rice at once. By a telegram dated October 2, the
appellant informed the complainant that S.S. Shah-
jehan was arriving the next day and that he would wire
the position. By his telegram dated the 3rd, he
informed the complainant that the loading had
commenced. On October 6, the complainant received
another telegram from the appellant that he would
not ship per S.S. Shahjehan until demands in his letter
dated September 29 are complied with. It is the
complainant's case that no such letter was ever
received by him. Jasawalla also informed the appel-
lant that no letter dated September 29 was received.
By telegram dated October 8, 1951, Jasawalla called
upon the appellant to refund the money and cancel the
contract. On October 12, the appellant sent a telegram
340 SUPREME COURT REPORTS [1958 ]
~:2 which conveyed a suggestion that he would ship rice
Mobarik Ali Ahmed by S.S. Shahjehan arriving on October 19, instead of
The ~tate of Octob~.r 9. There were som_e further telegrams exchang-
Bombay ed. Fmally the complamant sent a telegram on
Jagannadhadas J. October 26, calling upon the appellant to ship rice
immediately or refund the money. This was followed
by further exchange of correspondence which ultimately
resulted in a letter by the appellant to the complainant
dated November 17, denying all the allegations made
against him.
The above facts were held to have been proved by
the courts below on the basis of good deal of corres
pondence between the parties consisting of telegrams.
and letters and supported by the oral evidence mainly
of three persons, viz., (1) the complainant, (2) Jasa
walla, and (3) an ex-employee of the appellant at
Karachi by name Sequeria. All this evidence has
been accepted by the courts below after full considera
tion of the various comments and criticisms against
acceptability of the same:
Jn 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 course
would depend upon whether the complainant in parting
with his money to the tune of about Rs. 5~ Jakhs 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 knowledge of the
appellant and whether the appellant had a dishonest
intention from the outset. Both the courts below have
found these facts specifically against the appellant in
categorical terms. These being questions of fact are
no longer open to challenge in this Court before us in
an appeal on special leave.
Learned counsel for the appellant accordingly raised
before us the following contentions:
I. The appellant is a Pakistani national, who,
during the entire period of the commission of the
offence never stepped into India and was only at
Karachi. Hence he committed no offence punishable
under the Indian Penal Code and cannot be tried by
an Indian Court.
S.C.R. SUPREME COURT REPORTS 341
2. The appellant was brought over from England, 19s7
where he happened to be, by virtue of extradition Mobarikiii Ahmed
proceedings in connection with another offence, the The ~tate 01 trial for which was then pending in the Sessions Court · Bombay
at. Bombay an? accordingly. he could not b~ validly Jagannadhadas J.
tned, and convicted for a different offence hke the
present. . .
3. The various telegrams and letters relied upon
by the prosecution were held to have been proved on
legally inadmissible material.
4. The charge being under s. 420 read with s. 34
of the Indian Penal Code for alleged conjoint acts of
the appellant along with the persons designated as
accused 2, 3 and 4, in the complaint and the said three
accused not being before the Court and the appellant
not having been in Bombay at the time, the conviction
is unsustainable.
We have heard elaborate arguments on all these
matters but have felt satisfied that there is no substance
in contentions 2, 3 and 4 above. Accordingly we did
not call upon the counsel 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 c,ontention 3, it is convenient to take
the letters and telegrams separately. The letters which
have been relied on for the prosecution fall under the
following categories.
1. Letters from the appellant either to Jasawalla or
to the complainant.
2. 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 complainant and
Jasawalla speak to the signatures on the other letters.
The objection of the learned counsel for the appellant
is that neither of them has actually seen the appellant
write any of the letters nor are they shown to have
such intimate acquaintance with his correspondence,
342 SUPREME COURT REPORTS [ 1958}
1957 as to enable them to speak to the genuineness of these
,\foharik Ali Ahmed signatures. Learned trial Judge as well as the learned
v. Judges of the High Court have found that there were
Th~ State of
Dombay sufficient number of admitted or proved letters which
might well enable Jasawalla and the complainant to Jagannadhadas J. f identify the signatures o the appellant in the disputed
letters. They also laid stress substantially on the
contents of the various letters, in the context of the
other letters and telegrams to which they purport to
be replies and which form the chain of correspondence
as indicating the genuineness of the disputed letters.
Learned counsels objected to this approach on a ques
tion of proof. We are, however, unable to see any
objection. The proof of the genuineness of a docu
ment 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. lt may be proof of the handwriting of the
contents, or of the signature, by one of the modes
provided in ss. 45 and 47 of the Indian Evidence AcL
It may also be proved by internal evidence afforded
by the contents of the documents. This last mode of
proof by the contents may be of considerable value
where the disputed document purports to be a link in
a chain of correspondence, some links in which are
proved to the satisfaction of the court. In such a
situation the person who is the recipient of the docu
ment, be it either a letter or a telegram, would be in a
reasonably good position both with reference to his
prior knowledge of the writing or the signature of the
alleged sender. limited though it may be, as also his
knowledge of the subject matter of the chain of corres
pondence, to speak to its authorship. In an appropriate
case the court may also be in a position to judge
whether the document constitutes a genuine link in the
chain of correspondence and thus to determine its
authorship. We are unable, therefore, to say that the
approach adopted by the courts below in arriving at
the conclusion that the letters are genuine is open to
. any serious legal objection. The question, if any, can
S.C.R. SUPREME COURT REPORTS 343
only be as to the adequacy of the material on which 1957
the conclusion as to the genuineness of the letters is Mobartk Ali Ahm<d
arrived at. That however is a matter which we cannot v. The Stale of
permit to be canvassed before us. Bombay
A few of the letters said to have been received from , IL d J
h 11 d b d b h . . JOgannatma as .
t e appe ant, as state a ove, o not ear is signa-
tures. These were held to have been proved by the
circumstantial evidence as pointed out and we see no
objection thereto.
The next objection is as regards the letters said to
have been sent by Jasawalla and the complainant to
the appellant. Jasawalla and the complainant have
produced copies of the originals. It has been conten
ded that these copies are inadmissible. But such a con
tention is obviously untenable. The appellant cannot
be expected to produce them, if true, since he disputes
them. There is also the eividence of his ex-employee,
Sequeria, that the originals were received but taken
away by his son. The main contention in respect of
these letters is that there is no proof that they were
received by the appellant at Karachi. It is contended
that .evidence given by either Jasawalla or the com
plainant that the originals were written and post~d is
not relevant to show that the same have been received.
lt is urged that the proof of mere posting of a letter is
not presumptive evidence of the receipt thereof by the
addressee unless there is also proof that the original
has not 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 combination of the two facts is- required to raise such
a presumption. We are quite clear that the illustra
tion only means that each one of these facts is relevant.
It cannot be read as indicating that without a combi
nation of these facts no presumption can arise. Indeed
that section with the illustrations thereto has nothing
to do with presumptions but only with relevance.
Some cases relating to this have been Cited before us.
We have considered 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
1957 the various telegrams said to have been received from
Mobarik Ali Ahmed the appellant. In this case since we are largerly
v. concerned with the nature and contents of the repre-
Thfi.~t!~ 01 sentations said to have been made by the accused to
- the complainant or to Jasawalla, it is obvious that
Jagannadhadas J. what are relevant or important are the telegraphic
messages delivered to the complainant 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 copies of the originals recorded at the
receiving end. The real objection, however, appears to
be that there is no proof 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 corresponds with
the message delivered for transmission at the office of
origin. There is no presumption as to the person who
delivered such as messa~e for transmission. But here
again proof of authorship of the message need not be
direct and may be circumstantial as has been explained
above in the case of letters. The contents of the
message received, in the context of the chain of
correspondence may well furnish proof of the author
ship of the messages at the dispatching end. A number
of other minor objections have been also raised before
us connected with the proof of these telegrams. They
have all been fully dealt with by dne of the learned
Judges of the High Court.. Most of these objections
are unsubstantial and it is enough to say that we are
in general agreement with the conclusions of the High
Court in this matter.
As regards both the letters and the telegrams
considerable argument was attempted before us as to
the mode in which they were let in for proof in the
course 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 could
not 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 contents of the disputed documents, for proof
S.C.R. SUPREME COURT REPORTS 345
thereof there is this that could be said, viz., in view of 1957
the fact that quite a large number of the documentSMobarakAliAhmed
are not admitted and only a few have be~n held to be The !,·, 1 admitted or indubitably proved it may have been a s:mi:/
question open before the Court of appeal whether the " -;;;o;;;d J
internal evidence with reference to such a large mass agann as •
of correspondence substantial portion of which is
disputed was adequate to arrive · at a satisfactory
conclusion as to the genuineness of these documents.
That question is not 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 docu-
ments relied upon by the trial court as well as the
appellate court have not been printed in the record
before us. However, there is no reason to think that
the learned judges who have considered the matter
very elaborately have not come to a satisfactory
conclusion. They have acted not merely on the
internal evidence of the documents but also on the
oral evidence of three main witnesses, viz., the com•
plainant, Jasawalla and Sequeria, each set of evidence
having been considered as affirmative of the other and
in the aggregate as proving the authorship of the
disputed documents.
The fourth contention raised by the appellant's
counsel relates to the validity of the conviction under
s. 420/34 of the Indian Penal Code. ,Learned counsel
argued that persons designated as accused 2, 3 and 4
in the complaint, were all in Bombay and the
appellant in Karachi and that therefore no conjoint
offence could be committed by them within the mean~
ing of s. 34 of the Indian Penal Code. 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 not merely in planning its perpetration.
We do not think that 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. Through the trial
Magistrate and one of the learned Judges of the High
(!) (1955) 1 S.l.R:. 1177, n88
346 SUPREME COURT REPORTS ·[1958]
1957 Court referred to the conviction as a conviction unde
1\tol>arli:Ai!A111nedS. 420/34 of the Indian Penal Code, the actual findings
the ,;~te of support a convictiol)- <;>f the appellant under s. 420
Bombay itself. Such a conv1ct10n would be valid though the
JaJmmadhadas J. charge is under s. 420 read with s. 34 of the Indian
Penal Code, (See Willie (William) Slaney v. The State
of Madhya Pradesh ('), unless prejudice is shown to
have occurred.
Thus there is no substance in contentions 3 and 4.
Contention No. 2 arises under the following circum
stances. It appears that the appellant was previously
undergoing trial in the Court of the Sessions Judge at
Bombay for the offences of forgery and fraud and was
on bail in connection with the trial. While thus on
bail he fled away first to Pakistan and from there to
England. The Indian authorities made an applica
tion to the Metropolitan Magistrate, Bow Street,
under the Fugitive Offienders Act, for his being arrest
ed and surrendered. That application was granted
by the Magistrate. Thereupon the appellant moved
the Queens Bench Division of the High Court in
England for a writ of habeas corpus challenging the
validity of his arrest and surrender to the Indian
authorities. Judgement of Lord Goddard C.J. dealing
with this matter is reported as Re. Government of
India and Mubarak Ali Ahmed ('). 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 know about it and filed
his complaint 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
court in due course for trial (presumably after the
sessions trial was completed). The objection raised
before us is that the appellant having been surrender
ed by the order of the Metropolitan Magistrate only
for the sessions trial which was pending against him
in Bombay, he could not be tried for any other offence
said to have been committed by him in India.
(1) [1955] 2 S.C.R. 1 qo (2) (1952) I A.U.E.R. !000
S.C.R. SUPREME COURT REPORTS 347
Learned counsel relies on s. 3(2) of the English Extradi- 1957
ti on Act, 1870 (33 & 34 Viet. c. 52) which shows that Mobarik Ali Ahmed
it is contemplated thereby that a fugitive criminal Th 8v. if'
who has been surrendered under the Extradition Act ~01~'f:/
in respect of a particular offence should· not be tried . b d Jagani1adl1adas J. for any other offence unttl he has een restore · or
has been given an opportunity of returning. 11his
section, however, has no bearing in the present case,
since, as already stated, the appellant was surrendered
under the Fugitive. Offenders Act which contains
no analogous provision. Section 8 of the Fugitive
Offenders Act only provides for an optional repatria-
tion of the surrendered person at his request if he is
acquitted of the offence for which he is surrendered.
Learned counsel 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 contention. 1t 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 not to be justified, this by itself cannot
vitiate the conviction following upon his trial. This
is now well-settled by a series of cases. (See Parbhu v.
Empemr C); Lumbhardar Zutshi v. The King (2); and
H. N. Rishbud v. The State of Delhi (3). This conten-
tion must accordingly be overruled.
We are left, therefore, with the first contention
raised by the learned counsel for the appellant which
is the only substantial question that has been raised
before us requiring careful consideration.
The first contention is raised on the assumption
that the appellant is a Pakistani national. At the
outset, it may be stated th<it it is doubtful whether in
fact the appellant at the time of the offence could be
considered a Pakistani national. The complainant
asserted in his complaint, that he came to know 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
(1) A.l.R, (1944) P.C. 73, (3) (1955) 1 S,C.R. I150, 1163.
(2) A.l.R. (1950) P.C. 26
45
1957 a long written-statement filed after the prosecution
1fo•wik Ali Ahmct1closed its case, the appellant himself gave details of his
v. previous history from the year 1928. He stated that Tiu' State of
Bombay he became a Graduate with Honours from the Punjab
Jaqannad!tadas J. 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 Govern
ment service in 1943 and joined an industrial concern
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 contract 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 continued to be in India till July
1950. If so, it appears prima facie that by virtue of
Art. 5 of the Constitution read with Art. 7 thereof, he
was a citizen of India on the date of the Constitution
and continued to be so at the date of the offence in
July-August, 1951, unless he shows that under Art.9
of the Constitution, he voluntarily acquired the citizen
ship of a foreign State. Prima facie mere migration
to Pakistan is not enough to show that he had lost
Indian citizenship. This question has not been con
sidered or dealt with in the courts below, probably
because it was not 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 Court 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
continues to be an Indian citizen (after remanding for
additional finding, if need be,) would not be fair or
satisfactory. In the circumstances we have felt it
S.C.R. SUPREME COURT REPORTS 349
desirable to allow arguments to proceed on the same 1957
assumption which the High Court has made. We, Mobarik Ali Ahmed
therefore, proceed to deal with it. Th /·
The learned Judges of the High Court decided against Bo~/,~/1
the objection of the appellant as to the jurisdiction of J. ~ J
the court to try him for the alleged offence relying on aganna
10
as ··
s. 179 of the Code of Criminal Procedure which provides
as follows:
"When a person is accused of the commission 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 Court 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 consequence
of the deception, namely, the delivery of the property,
took place in Bombay."
They held that the appellant could, therefore, be
tried in Bombay in respect of the delivery of the
money in Bombay. The argument of the learned
counsel for the appellant is that s. 179 of the Code
of Criminal Procedure proceeds on the assumption
that the person to be tried is substantively liable for
an offence under the Indian Penal Code and that
s. 179 prescribes the place of trial but does not
create the liability. He urges that since the appellant
is a Pakistani national who was not physically present
at Bombay at any stage of the commission of the
offence, the Indian Penal Code has no application to
him. He is therefore not liable for ah offence under
the Penal Code and hence is not triable under s, 179 of
the Code of Criminal Procedure. It appears from s. 5 (1)
of the Code of Criminal Procedure that the provisions_
of the said Code relating to the place of trial assume
the existence of substantive liability under the Indian
Penal Code or under any other law. Section 5(1) says
that "all offences under the Indian Penal Code shall
be investigated, inquired into, tried and otherwise dealt
1957 with according to the provisions hereinafter contained."
1foharik Ali Ahmed Now the point raised by the learned counsel is that to
v. if hold a person in the position of appellant substantively
Th~0-;,;g~~
0
liable for the offence charged against him in the
- J circumstances of this case, would be to give cxtra-
iagmmadhadas · territorial operation to the provisions of the fndian
Penal Code. He contends that such extra-territorial
operation can only be by reason of specific legislation
in this behalf and does not arise from any general
provisions of the Jndian Penal Code.
To deal with this contention, it is necessary to
appreciate clearly the basic facts found in this ca>e.
The offence of cheating under s. 420 of the Penal Code
as defined in s. 415 of the Code has two essential
ingredients, viz.,(!) 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 eviderice set out above and
the facts found to be true show that the appellant
though at Karachi was making representations to the
complainant through letters, telegrams and teleph_one
talks, sometimes directly to the complainant and some
times through Jasawalia, 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 complainant at Bombay, nothwithstanding 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 complainant only when
it reaches cognition of the complainant at the Bombay
end. This indeed has not been disputed. It makes
no difference in principle if the representations have in
some stages been conveyed by telegrams or by letters
to the complainant directly or to some one of the
-appellant's agents, including Jasawalia in that cate
gory. There is also no question that it is as a result
ofthese representations that the complainant parted
with his money to the tune of about Rs. 5l lakhs on
three different dates. It has been found that the
S.C.R. SUPREME COURT REPORTS 351
representations were made without being supported by 1957
the requisite facts and that this was so to the know- Mobarik Ali Ahmed
]edge of the appellant and that the representations z v.
were so made with an initial dishonest intention. On Tino~::~; a.I
these facts it is clear that all the ingredients necessary J, -
for finding the offence of cheating under s. 420 read agaunaclhadas 1·
with s. 415 have occurred at Bombay. In that sense
the entire offence was committed at Bombay and not
merely the consequence, viz., delivery of money, which
was one of the ingredients of the offence. Learned
counsel for the appellant has not seriously contested
this position. But he urges that even so the appellant
who was not corporeally present in India at the relevant
time does not fall within the purview of the Indian
Penal Code. Now there can be no doubt that prima
facie the Indian Penal Code is intended to deal with
all unlawful acts and omissions defined to be offences
and committed 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 Code. What is, therefore, to
be seen is whether there is any reason to think that a
foreigner not corporeally present at the time of the
commission of the offence does not fall within the range
of persons punishable therefor under the Code. 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
Code compels such a construction. It is strenuously
urged that to consider a foreigner guilty under the
Penal Code for an offence committed in India though
attributable to him and to punish him therefor in a
case where he is not corporeall'.)' present in India for
the commission of the offence, would be to give extra
territorial operation to the Indian Penal Code and that
an interpretation which brings such extra-territorial
operation must be avoided. The case of the Privy
Council 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) (1091) A.G. 455.
1957 in India which are juridically attributable to him
Mubarik Ali Ahmednotwithstanding that he is corporeally present outside
~· 8v. ·' India at the time, is not to give any extra-territorial
"" tale o, · h 1 ,. · · · f fli Bombay operation to t e aw; 1or 1t 1s m respect o an o ence,
J dh ,; / whose locality is in India, that the liability is fastened
aganna a as · on the person and the punishment is awarded by the
law, if his presence in India for the trial can be s~ured.
That this is part of the ordinary jurisdiction of a
Municipal Court is well recognised in the common law of
England as appears from Halsbury's Laws of England
(Third Edition) Vol. 10, p. 318. Paragraph 580 therein
shows that the exercise of criminal jurisdiction at
common law is limited to crimes committed 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 instani:e, a person who, being abroad
procures an innocent agent or uses the post office to·
commit a crime in England is deemed to commit 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 persons
who has initiated such an offence is a foreigner he can
be tried if he subsequently comes to England."
Thus the exercise of criminal jurisdiction in such cases.
under the common law is exercise of municipal jurisdic
tion 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 notice certain
well-recognised concepts 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 Common Law of England, which has been
adopted, in this respect, in the United States, criminal
offences are considered as altogether local, and are
S.C.R. SUPREME COURT REPORTS 353
justiciable only by the courts of that country where 1957
the offence is committed." Mobarik Ali Ahm~d
At p. 182 thereof it is stated as follows: The s~~te of
"The judicial power of every independent State, Bombay
extends (with the qualifications mentioned earlier) to Jagannadlzadas J.
the punishment of all offences against the municipal .
laws of the States, by whomsoever committed, within
the territory."
In Hackworth's Digest of International Law (1941
Edition), Vol. II, at p. 188 there is reference to opinions
of certain eminent American Judges. It is enough to
quote the following dictum of Holmes J. noticed
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 jf
he had been present at the effect, ifthe State should
succeed in getting him within its power."
In Hyde's International Law (Second Edition),
Vol. I, at p. 798, the following quotation from the
judgement of the permanent Court of International
Justice dated September 7, 1927, in the case relating to
S. S. Lotus (1) is very instructive:
"It is certain that the courts of many countries,
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 commission are in the territory
of another State, are nevertheless to be regarded as
having been committed in the national territory, if one
of the constituent elements of the offence, and more
especially'its effects, have taken pace there."
This quotation is also noticed in Openheim's Interna
tional Law (Eighth Ed.), Vol. I at p. 332 in the foot
note. In noticing the provisions of International Law
in this context we are conscious that what we have to
deal with in the present case is a question merely of
municipal law and not of any International La.w.
But as is seen above, the principles recognised in
(1) ·Publications, Permanent Court of International Justice, Series
A, No. 10, 23.
M2SC/61-4
354. SUPREME COURT REPORTS [1958]
1957 Internati:mal Law in this behalf are virtually
Mubarik Ali Ahmed based on the recognition of those principles in the
v. municipal law of various countries and is really
Th~;:,'b~/I part of the general jurisprudence relating to criminal
responsibility under municipal law. No doubt
.Tagannadhadas J. some of the above dicta have reference to offences.
actually committed outside the State by foreigners and
treated as offences committed within the State by
specific legislation. But the principle emerging there
from is clear that once it is treated as committed with
in the State the fact that he is a foreigner corporeally
present outside at the time of such commission is no
objection to the exercise of municipal jurisdiction
under the municipal law. This emphasises the princi
ple that exercise of criminal jurisdiction depends on
the locality of the offence and not on the nationality
of the alleged offender (except in a few specified cases
such as ambassadors, Princes etc.)
Learned counsel for the appellant has relied on
various passages in the judgement of Cockburn C.J.
in the well-known case The Queen v. Keyn (Fran
conia's case) ('). 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 judgement of Cockburn C.J. which prima facie
seem capable of being urged in favour of the appel
lant's contention. In particular the following passage
at p. 235 may be noticed:
"The question is not whether the death of the
deceased, which no doubt took place in a British ship,
was the act of the defendant in such ship, bu.t whether
the defendant, at the time the act was done, was him
self within British jurisdiction."
The learned Chief Justice, however, recognised at
p. 237 that there were certain American decisions to
the contrary. Now 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-terri
torial British jurisdiction extended which did not
(I) (<876) 2 Ex. D. 63.
S.C.R. SUPREME COURT REPORTS 355
include the µarticular criminal jurisdiction under con- · !95 7
sideration. In respect of this question, as a result of Mobarik Aii Ahmed
the judgment, the Parliament had to enact the Terri- n sv., >f
torial Waters Jurisdiction Act, 1878 (41 &42 Viet., c.73) '~01~%:/
which in substance overruled the view of the majority J ~-:-, 1 1
and of the learned Chief Justice on this point. The agl/lm,. "u. ,
0
' • •
main principle of criminal jurisdiction, however, relev-
ant for our purpose was enunciated in the minority
judgement of Amphlett, J.A., at p. 1118.that "it is the
locality of the offence that determines the jurisdiction"
implying by contrast that it is not the nationality of
the offender.
The question, however, that still remains for con
sideration is whether there is anything in the language
of the sectians of the Indian Penal Code relating to
the general scheme of the Code which compels the con
struction the the various sections of the Penal Code
are not intended to apply to a foreigner who ,has
o committed an offence in India while not being corpo
really present therein at the time. For this purpose
we are not concerned with such of the sections of the
Penal Code, if any, which indicate the actual presence
of the culprit as a necessary ingredient of the offence.
Of course, for such offences a foreigner exhypothesi not
present at the time in India cannnot be guilty. The
only general sections of the Indian Penal Code which
indicate its scheme in this behalf are ss.2, 3 and 4 and
as they stand at present they are as follows:
"2. Every person shall be liable to punishment
under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which
he sha11 be guilty within India.
3. Any person liable, by any Indian law, to be
tried for an offence committed beyond India shall be
dealt with according to the provisions of this Code for
any act committed beyond India in the same manner
as if such act had been committed within India.
4. The Provisions of this Code apply also to
any offence committed by-
(1) any citizen of India in any place without arid
beyond India;
46.
356 SUPREME COURT REPORTS [1958)
1957 (2) any person on any ship or aircraft registered
Mobarik Ali Ahmeain India wherever it may be.
v.
The Slate of
Bombay
Jagannadhadas J,
Explanation:-In this section the word 'offence'
includes every act committed outside India which, if
committed in India, would be punishable under this
Code."
Sections 3 and 4 deal with offences committed beyond
the territorial limits of India and s. 2 obviously and
by contrast refers to offences committed 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 sec
tion asserts categorically that every person shall be
liable to punishment under the Code for every act or
omission contrary to the provisions of the Code 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
committed by them, being within India. The use of
the phrase "every person" in s. 2 as contrasted witl;l.
the use of the phrase "any person" in s. 3 as we11 as
s. 4 (2) of the Code is indicative of the idea that to the
extent that the guilty for an offence committed within
India can be attributed to a person, every such person
without exception is liable for punishment under the
Code. Learned counsel 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
commencement thereof. But this is far-fetched and
untenable. The plain meaning of the phrase "every
person" is that it comprehends all persons without
limitation and irrespective of nationality, allegiance,
ranks, status, caste, colour or creed. This section must
be understood as comprehending every person without
exception barring such as may be specia11y exempt
from criminal proceedings or punishment thereunder
by virtue of the Constitution (See Art. 361 (2) of the
Constitution) or any statutory provisions or some well
recognised principle of international Jaw, such as
foreign sovereigns, ambassadors, diplomatic agents
and so forth, accepted in the municipal law.
S.C.R. SUPREME COURT REPORTS 357
Learned counsel drew our attention to a number of 1957
sections in the Penal Code, viz., ss. 108A, 177, 203, 212, MobarikAli Ahmed
216, 216A and 236. The argument based on reference v. The. State of
to these sections is that wherever the legislature in Bombay
farming the Penal Code wanted to legislate about any- " ad! d •
thing that has reference to something done outside agann • '" as J.
India it has specifically said so and that therefore it
may be expected · that if it was intended that the
Penal Code would refer to a person actually present
outside India at the time of the commission 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 committed in India in the context of the princi-
pal offence itself having been committed outside
India-that is for instance, abetment, giving false in-
formation 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 not being punishable in India and .these sections
were intended to rectify the lacunae. On the other
hand, a reference to s. 3 of the Code clearly indicates
that it is implicit therein that a foreigner who commits
an offence within India is guilty can be punished
as such without any limitation as to his corporeal
presence in India at the time. For if it were not so, the
legal fiction implicit in the phrase "as if such act had
been committed within India" in s. 3 would not have
been limited to the supposition that such act had been
committed 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 Code. It is unnecessary to come to any
definite conclusion in respect thereto. But it is clear
that it does not support the contention of the appeal
lant's counsel. We have, therefore, no doubt that-on a
plain reading of s. 2 of the Penal Code, the Code does
1957 apply to a foreigner who has committed an offence
Mobarik Ali Ahm,dWithin India notwithstanding that he was corporeally
v. present outside. The State of
Bombay It has next been urged before us that the exercise of
Jagannadilada.• J. jurisdiction over a foreigner by municipal courts
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 not been laid down anywhere as a
limiting principle in respect of criminal jurisdiction,
which is primarily concerned with questions of security
of the State and of the citizens of the State.
A number of early cases of the High Courts in India
have been brought to our notice as bearing on the ques
tion now under consideration. (See Reg. v. Elmstone,
Whitll'ell ('); Reg. v. Pirtai ('); Mussummat Kishen
Kour v. Tire Crown ('); and Gokaldas Amarsee v.
Emperor ('). As against them may be noticed the
case in Emperor v. Chhotalal Babar ('). It is unneces
sary to consider them at any length. Undoubtedly
some of them seem to support the view pressed before
us on behalf of the appellant that criminal jurisdiction
cannot extend to foreigners outside the State. These,
however, are decisions rendered at a time when the
competence of the Indian Legislature was considered
somewhat limited, under the influence of the decisions
like those in Macleod's case (') in spite of the decision
in Queen v. Burah ('). However that may be these con
cepts are no longer tenabl~ after lndia became a
Dominion by the Indian Independence Act of 1947
and after it became an independent free sovereign
republic under the present Constitution. It is enough to
refer to the case of Croft v. Dunphy (') and to the
decision of Spens, C.J., in Governor-General v. Raleigh
(1) (1870) 7 Born. H.C.R. 89 (Cr. Ca.)
(2) (1873) 10 Born. H.C.R. 356.
(3) (1878) 13 P.R. 49
(Criminal Judgement).
(4) (1934) 35 CL L.J. 585.
(5) (1912) I.L.R. :;6 Dom. 524.
(6) (1891) ,\.C . . 1:,5.
(7) (1878) 3 A.C. 88q,
(8) ( 1 9'.13) .\. C. • :,G.
S~C.R. SUPREME COURT REPORTS 359
Investment ('). In the latter case Spens, C.J., indicates 1957
that there has been considerable change in the concept Mobarik Ali Ahmed
of the doctrine of extra-territorial legislation, sub- Th ;· !l
sequent to Macleod's case (2) and the criticism of ~0~i':,.
0
Macleod's case (2) in certain Canadian decisions and of .1, di' d 1 the Privy Council itself has been adverted to. aganna a as •
Learned counsel invited our attention to a passage
from the report of the Indian Law Commissioners
quoted at p. 274 of Ratanlal's Law of Crimes
(Eighteenth Ed.). It is enough to say that though
this quotation may be valuable as a matter of history,
it cannot be a legitimate guide for the construction of
the section. That construction 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
of criminal jurisdiction. It is not necessary and
indeed not permissible to construe the Indian Penal
Code at the present day in accordance with the notibns
of criminal jurisdiction prevailing at the time when
the Code was enacted. The notions relating to this
matter have very considerably changed between then
and now during nearly a century that has· elapsed. It
is legitimate to construe the Code with reference to
the modern needs, wherever this is permissible, unless
there is anything in the Code or in any particular
section to indicate the contrary.
After giving our careful consideration to the ques
tions 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 Code notwithstanding his not being corporeally
present in India at the time. ·
We have been asked to consider the question of
sentence, As has been stated at the outset the substan
tive sentences of imprisonment are two years under
the first count and twenty-two months under the
second. The sentences were concurrent on the se·cond
(1) A.LR. (1944) F.C. 51, 60, 61. (2) (1891) A.C- 455·
360 SUPREME COURT REPORTS [1958[
1957 and third counts. As a result, the total imprisonment
Moborik Ali Ahmed Which has been awarded against the appellant would
v. be a period of three years and ten months. We are
Thi,!'t,~y 01 not prepared to say that the discretion of the trial
court in awarding that sentence has been wrongly
Jogonnadhodas J. exercised.
1957
September 10
The appeal is accordingly dismissed.
Appeal dismissed.
KANAI LAL SUR
v.
PARAMNIDHI SADHUKHAN
(BHAGWATI, S.K. DAS and GAJENDRAGADKAR JJ.)
Thika tenant-Decree for ejectment-Execution application
If lies in civil Coirt-Welfare legis/ation-lnterpretation-Ca/c11tta
Thika Senancy Act, 1949 (W. B. Tl of 1949), s. 5(1).
Respondent" obtained a decree for ejectment against the
appellant, a thika tenant, and filed an application for execution
of the decree before the civil Court, Appellant resisted the
application on the ground that inview of s. 5(1) of the Calcutta
Thika Tenancy Act, 1949. the civil Court had no jurisdiction to
entertain the application. Section 5(1) provides that a landlord
wishing to eject a thika tenant on the grounds specified in s. 3
shall apply to the Controller in that behalf.
Held, that s. 5(1) did not apply to a case where the landlord
had already obtained a decree for ejectment against his thika
tenant and consequently the civil Court had jurisdiction to
entertain the execution application.
The operative provisions of welfare legislation should receive
a beneficent construction from the Courts. But the words used
in a statute must be interpreted in their plain grammatical
meaning and it is only when such words are capable of two
constructions that the question of adopting the construction which
is more consistent with the policy of the Act arises.
· Heydo11's case, (1984) 3 Co. Rep. 8, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 291 of 1955.
Appeal by special leave from the judgment and
order dated March 29 1955, of the Calcutta High Court
in appeal from Appellate Order No. 134 of 1954,
affirming the appeal against the judgement and order