049-NLR-NLR-V-73-K.-G.-FRANCIS-Appellant-and-B.-D.-C.-JOSEPH-Food-and-Price-Control-Inspecto.pdf
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trancia v. Joseph
1970Present: Siva Supramaniam, J.
K. G. FRANCIS, Appellant, and B. D. 0. JOSEPH(Food and Price Control Inspector), Respondent
S. O. 217/69—M. O. Galle, 57032
Control of Prices Act—Prosecution against two accused Jor jointly selling a price-controlled article at excessive price—Quantum of evidence—Scope of a. 35 ofPenal Code—Balance sum due to buyer-—Tender by seller of a lesser sum—Effect.
Where A and B are chargod with having jointly sold a price-controlledarticle in excess of the prescribed price by selling it under-weight, B is notliable to bo convicted if the evidence shows that he was not aware that thearticle handed to the buyer by A was under-weight and that B was only calledupon by A to tako the money for the correct weight and to pay the balance tothe purchaser. In such a cose the principle of liability contained in section 35-of the Feoal Code has no application.'
In a prosecution for contravention of the Control of Prices Act, the selleris not liablo to be convicted if, when the balance sum duo to the purchaser is,for instance. Be. l'OO, he hands over to the purchaser a lesser sum of Be. 1'05owing to his inability to find a one-cent coin. In such a case it is open to thebuyer to get back the sum which had been tendered by him or to recover fromthe seller the sum of one cent on the basis of a debt due.
SIVA 6UPRAMANIAM, J.—Fronds v. Joseph
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.A.PPEAL from a judgmont of the Magistrate’s Court, Galle.
Colvin H. dt Silva, with 7. S. de Silva, for the 2nd accused-appelJant.S. L. Ounasekara, Crown Counsel, for the respondent.
Cur. adv. vult.
March 12, 1970. Siva Sdthamai«iam, J.—
The appellant, who is the 2nd accused in this case, and another werocharged with having jointly sold 1 pound 15 ounces of yellow grain at aprice in excess of the maximum retail price fixed by the Controller ofPrices and thereby committed an offence under the Control of Prices Act.After trial, the Magistrate held that the charge was proved against hothaccused. In view of his young ago, the 1st accused was placed under thesupervision of a Probation Officer for a period of two years. He hasnot appealed against the order. The appellant was convicted andsentenced to ono month’s rigorous imprisonment and to a fine ofUs. 1,000, in default, a further six weeks’ R.I.
The prosecution case is that tho Food and Price Control Inspector ofGalle sent a decoy to the boutique in which the two accused wereemployed, with instructions to purchase 2 pounds of j-cllow gram, thecontrolled maximum price of which was 47 cent', per pound. The decoystated that he asked the 1st accused for 2 pounds of yellow gram. Thelit accused then weighed the gram and gave him the parcel. Hetendered to the 1st accused a two-rupee note. The 1st accused handedthe note to the appellant.
It would appear from the evidence that the appellant quoted the priceof the 2 pounds at 94 cents which was the controlled price, but informedthe purchaser that he did not have a ouc-cent coin with him to give himtho full balance of Re. 106. He therefore gave him Re. 105. Thesefacts were not denied by the decoy.
The Inspector stated that on a signal from the decoy, he went up andtook charge, of the parcel of yellow gram and the balance sum of Re. 105.When he weighed the gram without the wrapper, the weight was found tobe I pound 15 ounces. He could not say if the weight with tho wrapperwould have been 2 pounds. According to the decoy, the 1st accused hadweighed the gram with the wrapper. The Inspector also admitted thathe searched tho drawer of the appellant but found no one*cent cointherein.
The question that arises for consideration on this appeal is whether, ontho admitted facts, the appellant is guilty of having sold the gram, jointlywith the 1st accused, at a price in excess of the controlled maximumprice. The essential steps in the conclusion of a contract of sale are (1)the stipulation of the price, (2) the payment thereof, and (3) the delivery
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SIVA SUPRAitANIAM, J.—rJTrancis v. Joseph
. of the article which is subject of the sale. In the instant case, the gramhad been weighed by the 1st accused in the presence of tlie.purchaserand tho purchaser had acccpted .tho parcel as containing 2 pounds ofgram. The evidence does not show that the appellant played any partin the weighing of the article or that- he was aware that it was one ounceshort of 2 pounds. Tho appellant wa6 called upon to tako the money for. 2 pounds of gram and to pay the balance to the purchaser. When theappellant quoted the price at 94 cents it meant that the contract of salewas to be concluded at that price. The fact that he handed to tho pur-chaser a balance of Re. 105 owing to bis inability to find a one-ccnt cointo give him ‘he full balance of Re. 106 did not vary the price at whichthe contract of sale was concluded. The resulting position was that theseller became indebted to the purchaser in the sum of one cent which thepurchaser would have been entitled to recover from the seller thereafter,or, if he so wished, ho could have waived that debt. That the seller hadin his drawer two-cent coins with which he could have made up the fullbalance payable does not make any difference. If the buyer was notwilling to recover the balance later or to waive it, it was open to him topay to the seller the exact amount that was quoted, namely. 94 cents andtc get back the two-rupee note that had been tendered by him. On thoevidence, therefore, the appellant recovered from the purchaser onlj' asum of 94 cents as the price of 2 pounds of yellow gram and, in doing so,ho committed no breach of the price control order.
Crown Counsel invited my attention to the judgment of Tennekoon J.in tho case of Makabood v. Food and Price Control Inspector1 and sub-mitted that in the light of the reasoning in that case both accused in theinstant case are guilty of the offence with which they are charged. Inthat case two accused were charged with jointly selling 2 pounds-of beefat Rs. 2.50 which was above the controlled maximum price. The evi-dence disclosed that the 1st accused quoted the price, cut and weighedthe beef and delivered the parcel to the buj-er and the 2nd accused whowas in charge of receiving the money himself quoted the sum of Rs. 2-50as the price for 2 pounds of beef and received that sum from the buyer.
I am in respectful agreement with Tennekoon J. that on those facts, uponan application of the principle of liability contained in Section 35 of thePenal Code, both accused were guilty of the offence with which they werecharged.
The facts of the instant case, however, as stated already, are entirelydifferent. On the evidence, the appellant was not aware that the parcelof gram handed to the buj'er by the 1st accused was one ounce short andthe principle of liability contained in Section 35 of the Penal Code canhave no application.
I set aside the conviction and sentence and acquit the appellant.
> (1967) 72 N. L. R. 116.
Appeal allowed.