JUDGMENT

Mir Ahmad, J C - Mohd. Nairn has been convicted by the Magistrate First Class, Marden, under Rule 90(2)(c), Defence of India Rules, and sentenced to three months' rigorous imprisonment. The change of Rupees 5-13-0 recovered from his shop was also ordered to be con-flscated. His appeal to the Sessions Court at Peshawar has failed and he has come up on revision to this Court. The case for the prosecution was that Mashal, a servant of Dr. Ghulam Samdani, went to purchase two packets of scissors cigarettes from Mohd. Nairn and offered a currency note of Re. 1 asking that after deducting the price of the packets, the change should be given to him. The accused told him that he had no change, and therefore, refused to take the rupee. Mashal went and informed his master. It so happened that Mohd. Akram Khan, Inspector of the Enforcement Staff, was present at the place. The Inspector accompanied by Abdul Ghani Lambardar went to the shop of the accused and searched the place. He found change worth Rs. 5-13-0 in the shop. The accused was therefore prosecuted. The accused pleaded that he had no small coins in his shop and that he, therefore, refused to enter into the bargain. He alleged that he got some change afterwards from a tangawala and that this was the change found by the police in his shop on search. The accused produced two defence witnesses. One of them, a tangawala, stated that he went to the shop of the accused on the day of occurrence and gave him small coins worth Rs. 4. The other said that he went to purchase scissors cigarettes from the accused, but the accused told him that he was out of stock. He, therefore, bought a packet of players. The witness added that the accused had no change, but a tangawala came and gave him some change, which was given to the witness in exchange for his rupee. Learned Counsel for the petitioner has argued that even if the prosecution story be accepted as true the accused has not committed any offence. He has quoted a judgment of a single Judge of the Nagpur High Court reported in Mahadeo Vithal . The following is the head-note of, that case:

Under Section 12(1), Coinage Act, 8 of 1906, read with Section 2 of Ordinance 4 of 1940, a rupee note is legal tender in payment or on account. But a tender of a rupee note for goods 'worth three annas is not a tender or offer of the price of the goods, and there is no obligation on the part of a shop-keeper to give change. If a shop-keeper acquires or possesses small coin in excess of his personal or business requirements, be may be prosecuted under Clause (d) or Clause (e) of Rule 90(2).

2. Clause (c) of Rule 90(2), Defence of India Rules, runs as under: "No person shall refuse to accept, in payment of a debt or otherwise, any coin or note." The very text of the clause shows that it is not intended to apply to cases like the present one. It makes it an offence for a person to refuse to accept the whole of a rupee or a note or other coin as legal tender. It implies that a person may refuse to accept a legal tender on the ground that he does not consider it as valuable as its face value indicates, and it is to avoid such consequence that the act has been made punishable. In this case there was no refusal because the shop-keeper thought that the rupee note was not worth the price which it was supposed normally to fetch. His excuse for not taking the rupee note was that he had no change. There is no law by which a shop-keeper is bound to keep enough change to give to the public in exchange for rupee notes and in the circumstances a shopkeeper would be perfectly within his rights to say to a customer that he should bring small coins if he wishes to buy stuff worth less than Re. 1. I do not see why it should be an offence to say so. I therefore agree with the Nagpur view and hold that the accused has not committed any offence. I may note that the fact that change was found in the shop would not necessarily affect the situation. Every shopkeeper is anxi