Judgment Akil Kureshi, J.—The petitioner is the original accused. He seeks quashing of Criminal Case No. 1182/2009 (here-in-after referred to as ‘the said complaint’) pending before the learned JMFC, Sanand. 2. Briefly stated facts are as follows : 2.1 Petitioner is the original accused No. 1 in said complaint lodged by Respondent No. 2 herein. Briefly stated allegations in the complaint are that Respondent No. 2 is a manufacturer of cotton products. It sells goods mostly through exports. One of the customers of the complainant is one America based company called Mervyns L.L.C. (here-in-after referred to as ‘the purchaser company’). The purchaser company places purchase order with the complainant company. As per the purchase order complainant company entrusts transport of such export consignment to APL Logistics (India) Pvt. Ltd. at Mumbai. It may be noted that the petitioner is Managing Director of said APL Logistics (India) Pvt. Ltd. Such consignment is transported to its destination in USA by APL Logistics (India) Pvt. Ltd. through the vessels of Orient Oversees Container Line (India) Pvt. Ltd. (‘OOCL’ for short) of which original accused No. 2 is stated to be the Managing Director. It is stated in the complaint that for such transport work, the complainant pays the charges to the accused. Accused was responsible for safe transport of the goods. Accused had to carry out instructions of the complainant company till the goods could be handed over to the purchaser company. In June-July 2008, purchaser company placed large purchase order with the complaint company details of which are given in the complaint. Complainant company handed over the consignment to the accused which loaded in the ship for transport. At that point of time the complainant company came to know that purchaser company has gone bankrupt. They had also filed for bankruptcy according to American law. Complainant company thereupon instructed the accused not to deliver the goods to the purchaser company. Such instructions were duly received by the accused. In fact they were informed that if such instructions are ignored they would be directly liable for such actions. The accused ignored such instructions though they were duty bound to carry out instructions of the complainant company. Even when the goods were on high sea, such instructions were given despite which goods which were entrusted to the accused, were handed over to the purchaser company. The accused ignored such instructions though they were duty bound to carry out instructions of the complainant company. Even when the goods were on high sea, such instructions were given despite which goods which were entrusted to the accused, were handed over to the purchaser company. It is thus the allegation of the complainant that accused committed offence punishable under Section 407 read with Sections 34 and 114 of the IPC for the goods which are valued at approximately Rs. 94,63,424/-. 2.2 On the said complaint, learned Magistrate recorded the statement of the complainant and on 28.1.2009 ordered police investigation under Section 202 of the Code of Criminal Procedure. Upon presentation of the report by the police, learned Magistrate by his order dated 4.7.2009 directed registration of the complaint and ordered issuance of summons. Petitioner therefore, challenges the complaint and order of Magistrate upon such complaint. 2.3 Case of the petitioner broadly is that APL Logistics (India) Pvt. Ltd. is not the agent of complainant company. It was receiving goods on behalf of the purchaser company. Payment for transportation was being made by the purchaser company. Its liability was limited and that too was to the purchaser company. At the time when the instructions were given by the complainant company, the goods were already in possession of OOCL. It is also the case of the petitioner that APL Logistics does not come within the definition of term ‘Carrier’. It is therefore, the case of the petitioner that in absence of any entrustment, offence of criminal breach of trust that too by carrier is not made out. Case of the complainant emerging from the complaint as well as from the affidavits and documents produced on record is that APL Logistics (India) Pvt. Ltd. were entrusted a consignment for transport; that later on clear instructions were given not to deliver the goods to the purchaser company. The complainant even agreed to pay demurrages. Despite such instructions accused parted with the possession of goods in favour of the purchaser company. They therefore, committed above- mentioned offences. 3. Appearing for the petitioner, learned senior Counsel Shri Mihir Thakore with Shri Manav Mehta contended that : (1) The date on which the instructions were given by the complainant company, goods were not in custody of APL Logistics (India) Pvt. Ltd. but were handed over to OOCL. They therefore, committed above- mentioned offences. 3. Appearing for the petitioner, learned senior Counsel Shri Mihir Thakore with Shri Manav Mehta contended that : (1) The date on which the instructions were given by the complainant company, goods were not in custody of APL Logistics (India) Pvt. Ltd. but were handed over to OOCL. (2) Complaint is filed against the present petitioner No. 1 Samarnath who is employee of APL Logistics (India) Pvt. Ltd.. In any case he is not liable for any criminal acts. (3) APL Logistics (India) Pvt. Ltd. was acting as agent of the purchaser. By the complainant company therefore, there was no entrustment of goods to APL Logistics (India) Pvt. Ltd. Offence punishable under Section 407 of IPC is therefore, not made out. (4) In support of his contentions, he relied on the following decisions : (1) State of Gujarat vs. Jaswantlal Nathalal reported in AIR 1968 Supreme Court 700, wherein the Apex Court observed as under : “8. The term “entrusted” found in Section 405 IPC governs not only the words “with the property” immediately following it but also the words “or with any dominion over the property” occurring thereafter-see Velji Raghvaji Patel vs. State of Maharashtra 1965-2 S.C.R. 429 = ( AIR 1965 SC 1433 ). Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trustsee Jaswantrai Manilal Akhaney vs. State of Bombay(1). The expression ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that properly is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. It is true that the government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. A mere transaction of sale cannot amount to an entrustment. It is true that the government had sold the cement in question to BSS solely for the purpose of being used in connection with the construction work referred to earlier. But that circumstance does not make the transaction in question anything other than a sale. After delivery of the cement, the government had neither any right nor dominion over it. If the purchaser or his representative had failed to comply with the requirements of any law relating to cement control, he should have been prosecuted for the same. But we are unable to hold that there was any breach of trust.” (2) Keki Hormusji Gharda and others vs. Mehervan Rustom Irani and Another reported in (2009) 6 Supreme Court Cases 475, wherein the Apex Court observed that IPC does not, except in some matters, create vicarious liability. Office bearers like Directors of a limited company are therefore, not personally liable for commission of an offence under the IPC. (3) Saroj Kumar Poddar vs. State (NCT of Delhi) and Another reported in (2007) 3 Supreme Court Cases 693, wherein also the question of vicarious liability of Director of a Company came up for consideration. (4) S.K. Alagh vs. State of U.P. and ors. reported in 2008 Cri. L.J. 2256, wherein the Apex Court made following observations : “20. As admittedly, drafts were drawn in the name of the company, even if appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically, therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself. {See Sabitha Ramamurthy and Anr. vs. R.B.S. Channabasavaradhya [(2006) 10SCC 581]}.” 4. On the other hand, learned Senior Counsel Shri Kavina for the complainant contended that goods were within the custody and domain of APL Logistics (India) Pvt. Ltd when instructions were given not to deliver possession thereof to the purchaser company. He took me through correspondence between the parties to demonstrate that complainant company had in fact agreed to bear cost of demurrages etc. He took me through correspondence between the parties to demonstrate that complainant company had in fact agreed to bear cost of demurrages etc. for the said purpose upon which APL Logistics (India) Pvt. Ltd. had also agreed at one point of time to withhold the delivery. He invited my attention to Section 47 of the Sale of Goods Act, 1930 which pertains to seller’s lien. He also referred to Section 50 which provides that when the buyer of goods becomes insolvent, the unpaid seller who has parted with possession of the goods has the right of stopping them in transit and to retain them until payment or tender of the price. 5. Having heard learned Advocates for the parties and having perused the documents on record, I find that in the complaint, complainant has made allegations about goods being handed over to the purchaser company despite instructions to the contrary from the complainant. However, nowhere in the complaint, the complainant has alleged what role did the present petitioner play except for stating that present petitioner who is shown as accused No. 1 is the Managing Director of APL Logistics (India) Pvt. Ltd. and is responsible for day to day functioning and that he is responsible for transactions described in the complaint. There are no allegations made individually against the present petitioner. Though in the complaint general allegations are made against both the accused including the present petitioner, such allegations need to be viewed in light of correspondence between the parties which is produced on record. All the correspondence mainly through e-mail is with representative of the APL Logistics (India) Pvt. Ltd. and not the present petitioner. As already noted, case of the complainant is that APL Logistics (India) Pvt. Ltd. was entrusted with the task of transporting consignment from Mumbai to USA. While the goods were in transit, complainant came to know that buyer company has gone bankrupt. Instructions were therefore, issued to APL Logistics (India) Pvt. Ltd. to withhold the delivery of consignment. Despite such clear instructions, goods were delivered to the purchaser company. Nowhere the complaint suggests that there was any direct dealing with accused No. 1 i.e. the present petitioner. Nowhere complaint suggests that instructions were given to him personally and that the said accused had committed breach of trust and thus committed offence under Section 407 of IPC. 6. Despite such clear instructions, goods were delivered to the purchaser company. Nowhere the complaint suggests that there was any direct dealing with accused No. 1 i.e. the present petitioner. Nowhere complaint suggests that instructions were given to him personally and that the said accused had committed breach of trust and thus committed offence under Section 407 of IPC. 6. In view of this, present petitioner cannot be held liable for any offence under Section 407 of IPC. Counsel for the complainant feebly contended that petitioner is shown to be the Managing Director of APL Logistics (India) Pvt. Ltd. and was responsible for its day to day functioning. However, in absence of any allegations against the petitioner of his own acts or omission amounting to criminal offence and in absence of any statutory provision creating any vicarious liability, he cannot be hauled up for alleged offence. His position of Managing Director and being responsible for day to day functioning of the company may be relevant for offence such as one punishable under Section 138 of the Negotiable Instruments Act where statutorily vicarious liability is caste on certain persons responsible for functioning of the company. In the present case, question of such vicarious liability does not arise. 7. In addition to the above conclusions that I have reached, I have also perused the documents on record. Though it is the case of the complainant that APL Logistics (India) Pvt. Ltd. was its agent and was being paid by the complainant company, there are no documents to support either of the two statements. On the contrary, there is sufficient evidence to suggest that APL Logistics (India) Pvt. Ltd. was acting as agent of the purchaser company. In Forwarder Cargo Receipt, following condition has been incorporated : “3. APLL undertakes to receive the Goods on behalf of the Customer, hold the same as an agent and deliver or forward them to carriers or transporters in accordance with the instructions of the customer. If at any time the method and/or route of forwarding selected by the Customer shall become impossible to perform for any reason, APLL may use any other method available at its discretion and all charges and/or expenses incurred in using such method shall be for the Customer’s account.” 8. If at any time the method and/or route of forwarding selected by the Customer shall become impossible to perform for any reason, APLL may use any other method available at its discretion and all charges and/or expenses incurred in using such method shall be for the Customer’s account.” 8. In another receipt, between APL Logistics (India) Pvt. Ltd. and purchaser company also following condition is to be found : “Apl logistics Hongkong Ltd (‘Apll’) hereby acknowledges receipt of the packages other shipping units said to contain the goods above (‘The goods’) In Apparent exterior good order and condition unless otherwise stated. The seller, buyer and all others having an interest in the goods (‘The cargo owners’) are advised and by delivering goods and accepting this receipt agree, that the receipt, custody, consolidation and forwarding of the goods by Apll are subject to all the tems and conditions set for on the reverse side of this forwarders cargo receipt and in corporated by reference on this side and hereof. The number on this forwarders cargo receipt may be written, stamped, or printed.” Many such receipts are on record. 9. This condition is to be found in all cargo receipts. It thus becomes clear that the APL Logistics (India) Pvt. Ltd. was acting as transporter of the purchaser company and not the seller company i.e. the complainant. It appears that transportation charges have also been paid by the purchaser company. Complainant company has not produced any record to suggest that such charges were borne by them. Under the circumstances, I find that APL Logistics (India) Pvt. Ltd. was under no legal obligation to withhold the delivery of the goods at the instance of the complainant company. It is true that there was lengthy correspondence between the representative of the complainant company and APL Logistics (India) Pvt. Ltd. As pointed out by Counsel for the complainant company on 23.7.2008 through e-mail it was conveyed by the complainant company that container should not be delivered to the consignee or his agent till further instructions. It is true that there was lengthy correspondence between the representative of the complainant company and APL Logistics (India) Pvt. Ltd. As pointed out by Counsel for the complainant company on 23.7.2008 through e-mail it was conveyed by the complainant company that container should not be delivered to the consignee or his agent till further instructions. In response to the mail, one Bhavna Patel from APL Logistics (India) Pvt. Ltd. wrote back suggesting that ‘we will check the same with the carrier if there are possibility on the same as the containers are almost reached the destination.’ Further mail was sent stating : “Kindly advise who will pay the reshipment charge as the cargo is almost reaching the destination as their would be other charges involve too. Would require an undertaking letter from your end which should shows the reason as well as all the decision are been taken from your end and all the charge will be borne by the vendor and you will be responsible on any circumstance as this was your decision to get back the container for which APLL wont be responsible on same. After receiving the letter from your end as well as the confirmation will be able to proceed further if no reply this would be delay on which we wont be responsible.” In response to this the complainant company conveyed that : “Please do not handover these containers until you get a written confirmation from undersigned, the reason for these instruction is that some discussions are going on on commercial points between Modern Terry Towels Limited- Mervyns LLC USA- and Lifung. We hereby confirm that Modern Terry Towel will bear the expenses what so ever it may, in case of need. Just to reinstate ‘Do not hand over these containers to consignee or his agent or any other person, till you get instruction from undersigned in wirting.’ If handover then APPL will be held responsible. The undertaking as required is attached and original will be delivered./couriered to your office. Mean while please do the need full in the matter.” Again on behalf of APL Logistics (India) Pvt. Ltd. , it was stated as under : “Please note that as per your below mail where in you have written to us to hold the containers we request you to please send a letter including the below points 1. Mean while please do the need full in the matter.” Again on behalf of APL Logistics (India) Pvt. Ltd. , it was stated as under : “Please note that as per your below mail where in you have written to us to hold the containers we request you to please send a letter including the below points 1. We here by indemnify APL Logistics from any claim arising out of holding the below containers and take the complete responsibility of getting the cargo back. 2. All related cost and consequences arising out of getting the containers back would be borne by the shipper ‘Modern Terry towels’. 3. All charges related to holding the container at the destination also would be borne by the shipper ‘Modern Terry towels’. We have approached the carrier to stop the containers and are also checking if we can re direct the consignment back to Mumbai. We would come back to you once the same is confirmed to us by the carrier.” Complainant company wrote back suggesting : “Please make it clear that presently we are asking you to do not hand these containers until you get a written confirmation from undersigned only. Since some discussions are going on commercial points between Modern Terry Towels Limited-Mervyns LLC. USA- and Lifung. The further instruction will be given to you in due course. We have already given the undertaking to bear the expenses what so ever, it may, in case of need for holding the containers at destination Please confirm the understanding.” Final reply received from APL Logistics (India) Pvt. Ltd. was : “Pls note have added the ID’s for the carrier OOCL whom you need to contact directly for holding the containers at the destination, kindly co-ordinate with them on same and pls issue the same letter to the carrier on holding the container to proceed further.” Complainant had thereupon sent following message : “Since the shipment was sent through you only, how OOCL will entertain us directly hence you have to coordinated this issue with OOCL.” Reply to that from APL Logistics (India) Pvt. Ltd. was : “Since we are not a privy tot he seaway bill of lading issued in your favour being a factory load container, the carrier will have to entertain you request, thus address the letter sent to us ‘ directly to them.” 10. There are subsequent messages along similar lines. There are subsequent messages along similar lines. Above correspondences may suggest that at one point of time APL Logistics (India) Pvt. Ltd. was sympathetic to the request of the complainant company not to hand over the containers to the purchaser company and subsequently changed its position. However, this is neither here nor there. It had no legal obligation to withhold the delivery. To my mind the complainant company once had handed over the consignment to the APL Logistics (India) Pvt. Ltd., who were acting as agent of the purchaser company, lost its control over such goods. It could not legally require the APL Logistics (India) Pvt. Ltd. to stop delivery thereof. APL Logistics (India) Pvt. Ltd. in any case were acting as agents of purchaser company. 11. Section 47 and 50 of the Sale of Goods Act only give certain civil rights to the APL Logistics (India) Pvt. Ltd. under certain circumstances. The same however, cannot be ground for creating criminal liability of the APL Logistics (India) Pvt. Ltd. or its employee for offence of breach of trust. 12. In view of the above discussion, I do not find that even otherwise any offence against the petitioner is disclosed. Section 407 of IPC provides for punishment for offence of criminal breach of trust by a carrier. Term ‘Criminal breach of trust’ has been defined in section 405 of IPC in following manner : “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so o do, commits ‘criminal breach of trust.” 13. It is therefore, important that property should have been entrusted to the accused for offence of criminal of breach of trust. In the present case, as already held APL Logistics (India) Pvt. Ltd. was agent of the purchaser company. Its possession of goods cannot be termed as entrustment by the complainant company. No offence of criminal breach of trust is therefore, made out. Question of such offence being committed by carrier therefore, would not arise. 14. In the present case, as already held APL Logistics (India) Pvt. Ltd. was agent of the purchaser company. Its possession of goods cannot be termed as entrustment by the complainant company. No offence of criminal breach of trust is therefore, made out. Question of such offence being committed by carrier therefore, would not arise. 14. In view of the above, it is not necessary to decide whether APL Logistics (India) Pvt. Ltd. were in possession of the goods or whether OOCL were in possession of the goods at the time when instructions for not handing over custody to the purchaser were issued by the complainant. 15. In the result, I find that no offence under Section 407 of IPC is disclosed against the petitioner. Complaint therefore is required to be quashed qua the petitioner. 16. Accordingly, Criminal Case No. 1182/2009 pending before the learned JMFC, Sanand is quashed qua the petitioner. Petition is allowed and disposed of accordingly. P P P P P 2010 (3) GCD 2033 (Guj) (DB) Hon’ble Mr. Justice A.L. Dave & Hon’ble Mr. Justice Bankim. N. Mehta Bhachabhai Mahadevbhai Ayar Versus State of Gujarat Criminal Appeal No. 678 of 2004—Decided on 06/05/2010 Subject : Murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to. Point in Issue : Whether conviction of appellant on basis of circumstantial evidence brought on record is sustainable? Justice A.L. Dave & Hon’ble Mr. Justice Bankim. N. Mehta Bhachabhai Mahadevbhai Ayar Versus State of Gujarat Criminal Appeal No. 678 of 2004—Decided on 06/05/2010 Subject : Murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to. Point in Issue : Whether conviction of appellant on basis of circumstantial evidence brought on record is sustainable? Head Note : [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — Murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to — Appellant alleged to have invited three bags for grazing the cattle — Two of them did not go with him — Merely deceased had gone with him — Thereafter deceased was not found but his dead body was found near the pond — The relatives were informed who went there to collect the body and ultimately cremated the dead body — No FIR was lodged about the incident — It is only when police went there on some telephonic call that FIR was lodges two days later — There is no material on record to know the condition of the dead body when it was found except ocular evidence which is dependent on the ability of the witness — That apart when accused was arrested no injury was found on his body or stains of blood on his clothes — The only evidence against appellant is find of golden ear stud with him which was allegedly worn by victim — It is held that merely recovery of golden ear stud from the possession of appellant can not be held conclusive to prove offence of murder against him — Court held that there is no dependable evidence to hold that appellant is guilty of offence of murder — He is, therefore, acquitted. Held : Upon perusal of the record and proceedings, it is revealed that the first informant - father of the deceased was informed that dead body of his son was lying near the pond. He goes there, collects that dead body and cremates but does not inform anyone about the episode. It is only after arrival of Police on 27/08/2000 that he lodges the FIR. The resultant effect is that, no Inquest Panchnama is drawn and no postmortem report is prepared. The Court is, therefore, at a loss to know the exact cause of death of the deceased. It is only after arrival of Police on 27/08/2000 that he lodges the FIR. The resultant effect is that, no Inquest Panchnama is drawn and no postmortem report is prepared. The Court is, therefore, at a loss to know the exact cause of death of the deceased. It is difficult to arrive at a conclusion that the deceased died a homicidal death, which is necessity, to be proved by the prosecution to bring home the charge of murder. [Para 6] The Court does not has before it any material to know the condition of the dead body when it was found and has to depend on ocular evidence. The ocular evidence would depend on ability of the witness to observe and to describe, which would again depend on the standard of education and his observation and description power. [Para 7] Another shortcoming of the prosecution case is that the accused did not has any injury on his person; nor his clothes was stained with any kind of blood and, probably, therefore they was not sent to FSL for chemical analysis. [Para 9] It is therefore not possible to conclusively accept that golden ear stud was found from the appellant and assuming for the sake of argument that it was found from him that would not, by itself, be sufficient to hold him guilty of murder of the deceased when it is not proved that the deceased was wearing such golden ear stud. The trial Court has overlooked this aspect and has mainly relied upon circumstances which is not so significant and has overlooked thus the above referred significant aspect while recording conviction. In our view, on this scanty evidence and suspicious conduct of the appellant, conviction could not has been recorded. [Para 12] Law Laid Down : In case of circumstantial evidence prosecution is required to complete the chain of circumstances to convict the accused. Appearance : Mr. Rasid M. Valiulla, for the Appellant No. 1. Mr. H.H. Parikh, Addl. Public Prosecutor for the Opponent No. 1. Decided in Favour of : Appellant Appeal Allowed Judgment A.L. Dave, J.—The appellant challenges judgment and order rendered by Sessions Court, Patan dated 15/03/2004 in Sessions Case No. 613 of 2002 (Old Case No. 597 of 2002). Appearance : Mr. Rasid M. Valiulla, for the Appellant No. 1. Mr. H.H. Parikh, Addl. Public Prosecutor for the Opponent No. 1. Decided in Favour of : Appellant Appeal Allowed Judgment A.L. Dave, J.—The appellant challenges judgment and order rendered by Sessions Court, Patan dated 15/03/2004 in Sessions Case No. 613 of 2002 (Old Case No. 597 of 2002). The appellant is convicted for the offence of murder of Babubhai Bhayabhai, allegedly committed by him between 12:00 hours of 24/08/2000 to 09:00 hours of 25/08/2000 in the outskirts of Village Madhuma, Tal. Santalpur, Dist: Patan. 1.1 For the said offence, the appellant is convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 1,000/-, in default, to undergo further simple imprisonment for six months. The appellant is also convicted for the offence punishable under Section 398 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for eight years with a fine of Rs. 500/-, in default, to undergo further simple imprisonment for three months. 2. Learned Advocate, Mr. Rasid M. Valiulla, for Mr. Tirmizi, for the appellant, submitted that the case of the prosecution depends on circumstantial evidence. The prosecution has not been able to complete the chain of circumstances. The fact that the deceased died a homicidal death has not been proved by the prosecution. While drawing attention towards evidence of Prosecution Witness No. 3-Vira Davraj Ayar, he submitted that the appellant is alleged to have invited all the three boys to go with him. If appellant had any intention of committing murder of the deceased, he would have invited only him and not the other boys. Learned Advocate submitted further that the FIR is lodged after four days of the incident, that too, upon action being initiated by Police on basis of anonymous telephone call received by Police. Who made that call is not even investigated upon and the first informant had by then even cremated the deceased. Learned Advocate submitted further that the FSL Report and arrest Panchnama would reveal that the appellant had no injury on his person and that his clothes also did not have any blood marks. As such there is no continuous chain of circumstances, which would connect the appellant with the crime. Learned Advocate submitted further that the FSL Report and arrest Panchnama would reveal that the appellant had no injury on his person and that his clothes also did not have any blood marks. As such there is no continuous chain of circumstances, which would connect the appellant with the crime. The trial Court overlooked this aspect and therefore the conviction may be set aside by allowing the appeal. 3. Learned APP, Mr. Parikh has opposed this appeal. 4. The facts of the prosecution case in brief is that the appellant invited the deceased and two other boys to join him for going to graze the cattle. The deceased joined him; whereas two others refuse to do so. This happened on 24/08/2000. Thereafter the deceased was not found but his dead body was found on 25/08/2000 near the pond. The relatives were informed, who went there to collect the body and ultimately cremated the dead body. On 28/08/2000 the Police received a telephone call informing that Bhachabhai Mahadevbhai Ayar committed murder of Babubhai Bhayabhai. The Police therefore went for an inquiry and it was found that deceased’ Babubhai Bhayabhai had expired and his dead body was cremated. At that point of time, the father of the deceased informed the Police about the incident and revealed that when dead body was found the ear lobe was cut and there were other injuries on the dead body. But, he on his own did not take any action till Police approached him. On basis of the FIR offence was registered and investigated and charge-sheet filed in the Court of JMFC, Radhanpur who in turn committed the case to the Sessions and Sessions Case No. 229 of 2000 was registered which was then given Sessions Case No. 613 of 2002. 5. Charge was framed against the accused at Exh.5 to which he pleaded not guilty and claimed to be tried. The Sessions Court ultimately recorded his conviction as stated above and hence this appeal. 6. Upon perusal of the record and proceedings, it is revealed that the first informant - father of the deceased was informed that dead body of his son was lying near the pond. He goes there, collects that dead body and cremates but does not inform anyone about the episode. It is only after arrival of Police on 27/08/2000 that he lodges the FIR. He goes there, collects that dead body and cremates but does not inform anyone about the episode. It is only after arrival of Police on 27/08/2000 that he lodges the FIR. The resultant effect is that, no Inquest Panchnama is drawn and no postmortem report is prepared. The Court is, therefore, at a loss to know the exact cause of death of the deceased. It is difficult to arrive at a conclusion that the deceased died a homicidal death, which is necessity, to be proved by the prosecution to bring home the charge of murder. 7. The Court does not have before it any material to know the condition of the dead body when it was found and has to depend on ocular evidence. The ocular evidence would depend on ability of the witness to observe and to describe, which would again depend on the standard of education and his observation and description power. 8. Apart from not informing the Police till 27/08/2000, the first informant socially also does not take any action. 9. Another shortcoming of the prosecution case is that the accused did not have any injury on his person; nor his clothes were stained with any kind of blood and, probably, therefore they were not sent to FSL for chemical analysis. What is sent to FSL are the clothes of the deceased and blood samples collected that of the accused and the parents of the deceased. The blood group of the appellant is ‘O’. Likewise, the blood group of father of victim and the group of blood found on clothes of the deceased as well as knife and the mud collected therefrom are ‘O’. Therefore, it is not possible to connect the appellant with this crime. 10. As rightly submitted by learned Advocate for the appellant, the appellant is alleged to have invited all the three boys for grazing the cattle and two of them of their own did not go with him. If the appellant had intention of causing death of the victim, he only would have been invited by the appellant for grazing cattle. 11. The only evidence now left out is find of the golden ear stud which was allegedly worn by the victim. The appellant when arrested is alleged to have been found in possession of it. However, he has in his further statement firmly denied this aspect. 12. 11. The only evidence now left out is find of the golden ear stud which was allegedly worn by the victim. The appellant when arrested is alleged to have been found in possession of it. However, he has in his further statement firmly denied this aspect. 12. It is therefore not possible to conclusively accept that golden ear stud was found from the appellant and assuming for the sake of argument that it was found from him that would not, by itself, be sufficient to hold him guilty of murder of the deceased when it is not proved that the deceased was wearing such golden ear stud. The trial Court has overlooked this aspect and has mainly relied upon circumstances which are not so significant and has overlooked thus the above referred significant aspect while recording conviction. In our view, on this scanty evidence and suspicious conduct of the appellant, conviction could not have been recorded. 13. The appeal therefore merit acceptance and is allowed. The judgment and order of conviction and sentence dated 15/03/2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Patan in Sessions Case No. 613 of 2002 (Old Case No. 597 of 2002) is hereby set aside. The appellant is acquitted from the charges levelled against him. The appellant be set at liberty forthwith, if not required, in any other case. Fine, if paid, be refunded to him. P P P P P 2010 (3) GCD 2037 (Guj) Hon’ble Mr. Justice M.R. Shah Chitrakut Dham Co-operative Housing Soc. Ltd. Versus Kharak Haribhai Ravjibhai Bhalariya & Ors. Second Appeal No. 29 of 20081—Decided on 08/07/2009 Subject : Agreement to sale land — In favour of unregistered society — Suit for specific performance of contract — Maintainability. Point in Issue : Whether contract to sale land entered into by unregistered society, can be enforced by the society? Ltd. Versus Kharak Haribhai Ravjibhai Bhalariya & Ors. Second Appeal No. 29 of 20081—Decided on 08/07/2009 Subject : Agreement to sale land — In favour of unregistered society — Suit for specific performance of contract — Maintainability. Point in Issue : Whether contract to sale land entered into by unregistered society, can be enforced by the society? Head Note : Co-operative Societies Act, 1961 — Sections 37, 161 and 162 — Agreement to sale land — In favour unregistered Society — Suit for specific performance of contract — Maintainability — Finding of — Held, suit contract is legally not enforceable in view of the fact that plaintiff Society was unregistered on the date of execution of agreement — The alleged impugned circular of the Government contemplates the mentioning of land owned by proposed Society which means that a Society which is to be registered will have to own the land in context of the provision of the Act — The Society comes into existence in the eye of law only on registration — In the case plaintiff Society was registered subsequently — Therefore, contract entered into by unregistered Society is nullity and hence cannot be enforced — Hence this second appeal fails. Ënfthe {kz¤eytu™tu yrÄr™Þ{, 1961 – f÷{tu-37, 161 y™u 162 – ðu[tý fhth – rƒ™™tUÄtÞu÷ ËtuËtÞxe™t n{tk – fhth …t÷™ {txu™tu Œtðtu – xfe þfðt ÞtuøÞ‚t – ‚thýtu – XhtðtÞwk Œtðt{tk hnu÷tu fhth yhsŒth ËtuËtÞxe fhth™t y{÷™e ‚the¾u rƒ™™tUÄtÞu÷ ntuðtÚte ftÞŒuËh y{÷…tºt ƒ™‚tu ™Úte – Ëhfth™tu rððtŒe …rh…ºt yuðwk Œþtoðu Au fu Ëk¼rð‚ ËtuËtÞxe îtht {tr÷fe™e ŒþtoðtÞu÷ s{e™ su™tu yÚto yu Útþu fu su ËtuËtÞxe ™tUÄýe {txu s‚e ntuÞ ‚uðe Ëk¼rð‚ ËtuËtÞxe îtht ‚uðt sýtðu÷e s{e™™e {tr÷fe yrÄr™Þ{™e òu„ðtEytu y™wËth Ähtððt™e hnuþu – yhsŒth ËtuËtÞxe™t fuË{tk ‚u …tA¤Úte ™tUÄtÞu÷ – {txu fhðt{tk ytðu÷ fhth LÞq™‚t{tk …rhý{u Au y™u ‚uÚte y{÷…tºt hnu‚tu ™Úte – ‚uÚte yt ƒeS y…e÷ r™»V¤ òÞ Au. Held : Proposed / unregistered society cannot be said to be a legal entity and therefore, any contract or Agreement-to-sale by or in favour of such a proposed / unregistered society, is not enforceable under the law and, therefore, no relief for the specific performance of such a contract can be granted. Held : Proposed / unregistered society cannot be said to be a legal entity and therefore, any contract or Agreement-to-sale by or in favour of such a proposed / unregistered society, is not enforceable under the law and, therefore, no relief for the specific performance of such a contract can be granted. Merely because for the purpose of registration of the society, Agreement-to-sale / contract in favour of the proposed society and/or by the proposed society is required, that does not make the contract enforceable for the purpose of relief of specific performance. For the purpose of making Agreement-to-sale / contract enforceable for the purpose of specific performance, what is required is that after the society is registered under the provisions of the Act even on the basis of Agreement-to-sale in favour of proposed co-operative society, there must be a subsequent another Agreement-to-sale / contract in favour of such registered society and then and then only such Agreement-to-sale / contract is enforceable under the law for the purpose of specific performance. In other words, the moment a society is registered on the basis of Agreement-to-sale / contract in favour of proposed co-operative society (as required under the. Circular of the Government dated 14.08.1981), the said agreement can be said to be valid for the purpose of registration of co-operative society only and such Agreement-to-sale in favour of proposed co-operative society comes to an end, moment the society is registered and for the purpose of specific performance, as pointed out hereinabove, another Agreement-to-sale / contract by the registered co-operative society for the purpose of specific performance is required and then and then only it can be said that the Agreement-to-sale / contract is in favour of the legal entity (considering Section 37 of the Act) which is enforceable under the law. [Para12] Considering the fact that the suit for specific performance of the contract / Agreement-to-sale was in favour of a proposed co-operative society which has no a legal entity at the relevant time and considering the aforesaid decisions of the Hon’ble Supreme Court as well as this Court, when decree for specific performance in favour of the appellant - original plaintiff society is denied, the same is not required to be interfered with by this Court. [Para13] Law Laid Down : A Co-operative Society becomes a legal person only after it’s registration and thereafter can enter into contract. [Para13] Law Laid Down : A Co-operative Society becomes a legal person only after it’s registration and thereafter can enter into contract. Case Law Analysis : Ramji Mandir Narsinhji & Others vs. Narsinhnagar at Tekari Co-operative Housing Society Limited & Others, 20 GLR 801 [Para 4];; Maneklal Mansukhlal Co-operative Housing Society Limited vs. Rajendrakumar Maneklal Shah & Others, 2002 (1) GLH 290 [Para 4].—Relied on Appearance : Mr. U.I. Vyas, for the Appellant No. 1. DS Aff. Not Filed (N), for the Defendants No. 1-7. Mr. C.B. Upadhyaya, for the Defendants No. 1-6. Decided in Favour of : Respondent Appeal Dismissed Judgment M.R. Shah, J.—Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant - original plaintiff to quash and set aside the impugned judgement and order dated 07.05.2007 passed by the learned Additional District Judge, Bhavnagar Camp at Mahuva in Regular Civil Appeal No. 115 of 2005, by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree, dated 12.08.1996 passed by the learned 3rd Joint Civil Judge, Senior Division, Bhavnagar in Special Civil Suit No. 124 of 1983. 2. The appellant herein -original plaintiff No. 2 had instituted Special Civil Suit No. 124 of 1983 in the Court of learned Civil Judge (S.D.), Mahuva against the respondents herein - original defendants, for specific performance of the contract dated 18.06.1981. It was the case on behalf of the plaintiff that the defendants are owners of land bearing Revenue Survey No. 248 Paiki ad-measuring 4 Acres and 16 Gunthas situated at Mahuva. That the plaintiff No. 2 is a registered co-operative Society registered on 03.06.1982. The defendants agreed to sell the suit land to the plaintiff No. l by Agreement-to-sale dated 18.06.1981 for Rs. 23,501 a Bigha. That earnest money of Rs. 20,000 was paid by cash. That the defendants gave Power of Attorney to one Mr. Maheshkumar N. Mehta for the purpose of converting the. land into Non-Agricultural use. Upon such sanction, the sale deed was to be executed. That the possession was to be handed over on 20.11.1981. 23,501 a Bigha. That earnest money of Rs. 20,000 was paid by cash. That the defendants gave Power of Attorney to one Mr. Maheshkumar N. Mehta for the purpose of converting the. land into Non-Agricultural use. Upon such sanction, the sale deed was to be executed. That the possession was to be handed over on 20.11.1981. As per the plaintiffs they were ready and willing to perform their part of contract, however, the defendants instead of performing their part, issued notice on 19.01.1982 denying to execute the sale deed and, therefore, the plaintiffs filed a suit for declaration and permanent injunction being Regular Civil Suit No. 21 of 1982 in the Civil Court, Mahuva. That thereafter, as the defendants raised false dispute pending the said suit, the plaintiffs instituted the present suit for specific performance of the Agreement to Sale dated 18.06.1981. That the suit was resisted by the defendants by submitting that the plaintiffs are not entitled to the relief / decree for specific performance of the Agreement-to-sale dated 18.06.1981, as the. Agreement-to-sale dated 18.06.1981 was in favour of proposed co-operative society i.e. unregistered co-operative society and, therefore, the suit for specific performance of the Agreement-to-sale is not maintainable. That the learned trial Court framed the issues that whether the suit contract is legally enforceable in view of the fact that the plaintiff No. 2 was not registered under the provisions of the Gujarat Co-operative Societies Act on the date of the contract? That the learned trial Court answered the aforesaid issue in negative and held that the suit contract is legally not enforceable in view of the fact that the plaintiff No. 2 society was unregistered on the date of the execution of the Agreement-to-sell. However, the learned trial Court passed an order directing the defendants to repay Rs. 20,000 to the plaintiffs which was received by them by way of earnest money. However, the learned trial Court passed an order directing the defendants to repay Rs. 20,000 to the plaintiffs which was received by them by way of earnest money. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned trial Court in Special Civil Suit No. 124 of 1983 in refusing to grant relief for specific performance of the Agreement-to-sale dated 18.06.1981, the appellant - original plaintiff No. 2 preferred Regular Civil Appeal / First Appeal No. 4413 of 1996 before this Court which was subsequently transferred to the District Court, Bhavnagar, upon enhancement of pecuniary jurisdiction of the trial Court and the same was subsequently numbered as Regular Civil Appeal No. 115 of 2005, That the learned Additional District Judge, Bhavnagar Camp at Mahuva by the impugned judgment and order dated 07.05.2007 dismissed the said appeal confirming the. judgment and decree passed by the learned trial Court refusing to grant relief of specific performance of the Agreement-to-sale dated 18.06.1981 on the ground that the said contract was legally not enforceable as the original plaintiff No. 2 in whose favour Agreement-to-sale dated 18.06.1981 was executed was unregistered society at the time of execution of the said Agreement-to-sale dated 18.06.1981. Being aggrieved by and dissatisfied with the judgment and order passed by both the Courts below, the appellant - original plaintiff has preferred present Second Appeal under Section 100 of the Code of Civil Procedure. 3. Mr. A.J. Patel, learned Advocate appearing on behalf of the appellant has suggested the following substantial question of law to be decided and considered by this Court in the present Second Appeal:— (i) Whether in the context of provisions of Sections 161 and 162 of the Co-operative Societies Act, 1961 read with Circular of the Government of Gujarat would be resorted to for the purpose of maintenance of the suit by unregistered co-operative Society? 4. At the outset, it is required to be noted and which is not disputed that at the time when the Agreement-to-sale was executed it was in favour of proposed Chitrakut Dham Co-operative Housing Society Limited, and on that day the proposed society in whose favour the Agreement-to-sale was executed of which specific performance is sought was unregistered society. 4. At the outset, it is required to be noted and which is not disputed that at the time when the Agreement-to-sale was executed it was in favour of proposed Chitrakut Dham Co-operative Housing Society Limited, and on that day the proposed society in whose favour the Agreement-to-sale was executed of which specific performance is sought was unregistered society. Both the Courts below relying upon the decision of this Court in the case of Ramji Mandir Narsinhji & Others vs. Narsinhnagar at Tekari Co-operative Housing Society Limited & Others, reported in 20 GLR 801 as well as decision of the Hon’ble Supreme Court in the case of Maneklal Mansukhlal Co-operative Housing Society Limited vs. Rajendrakumar Maneklal Shah & Others, reported in 2002 (1) GLH 290 refused to grant decree for specific performance of the Agreement-to-sale dated 18.06.1981 by holding that the said contract / Agreement-to-sale is not enforceable at law, as the same was in favour of a proposed co-operative society which was unregistered and as held by the Hon’ble Supreme Court as well as this Court, proposed / unregistered society cannot be said to be legal entity. 5. Mr. A.J. Patel, learned Advocate appearing on behalf of the appellant has, however, relied upon the provisions of Sections 161 and 162 of the Gujarat Co-operative Societies Act, 1961 (“the Act” for short) and the Circular of the Government of Gujarat issued for the purpose of registration of the society under the Act Mr. Patel, learned Advocate appearing on behalf of the appellant has submitted that Section 161 of the Act empowers the State Government to exempt any society or class of society from any of the provisions of the Act, or may direct that such provision shall apply to such society or class of societies with such modifications not affecting the substance thereof as may be specified in the order. It is submitted that the State Government has issued Circular on 14.08.1981. It is submitted that the said circular provides for procedure for registration of the society and it has been provided therein that along with the application for the purpose of registration, description of the land owned by the society will have to be given. It is submitted that the State Government has issued Circular on 14.08.1981. It is submitted that the said circular provides for procedure for registration of the society and it has been provided therein that along with the application for the purpose of registration, description of the land owned by the society will have to be given. It is submitted that under Article 162 of the Constitution of India, the executive instructions can be issued by the State Government in connection with the matters which are not covered either by the Central or State Act. The only embargo is that whatever Circular or executive instruction that is issued by the State shall have to stand the test of Article 14 of the Constitution of India. Therefore, it is submitted that the Circular issued by the State Government on 14.08.1981 can be said to be executive instructions which are issued by the State, which do not come in conflict with the provisions of the Act or any other provisions of any other Act. Therefore, it is submitted that when the Circular contemplates the mentioning of the land owned by the proposed society, it would mean that a society which is to be registered will have to own/possess land in the context of the provisions of Section 37 of the Act. The society comes into existence in the eye of law only on registration. Therefore, it becomes a legal person on the day on which it is registered. The present society was also registered but subsequently. However, when the society was registered, the land in question was mentioned for the purpose of meeting the objects of the society. It is submitted that by making these provisions in the Circular, the departure is made by the State Government in the context of acquisition of land by a proposed society. In other words, even a proposed co-operative society can enter into an agreement notwithstanding the provisions of Section 37 of the Act, which will be enforceable in law because if the law is enforced as it is, it will create a stalemate and an anomalous situation. According to Mr. Patel, learned Advocate appearing on behalf of the appellant, a society which does not have land cannot make application for the purpose of its registration. According to Mr. Patel, learned Advocate appearing on behalf of the appellant, a society which does not have land cannot make application for the purpose of its registration. Therefore, when the society makes an application it will have to be a proposed society, therefore, the anomaly would be as to whether the first egg and then chicken or first chicken and then egg. It is submitted that probably the State of Gujarat had this anomalous situation in mind and, therefore, in order to do away with the strict requirement of Section 37 of the Act the Circular was issued so that a proposed society can also have land and get registered. Therefore, only for the limited purpose, a society which is proposed, will have the status of legal person which can enforce a contract. Therefore, it is submitted that in the context of the above position, the State Government has issued the Circular which could be termed to be a Circular issued under Article 162 of the Constitution of India with a view to meet the hardships of unregistered society. Therefore, it is submitted that the contract that was entered into by the proposed society in the year 1981 would be enforceable in law, Relying upon the subsequent order of the Dy. Collector, Mahuva dated 19.09.1983, granting permission to convert the land in question into non-agriculture for the purpose of building of residential quarters which was by the time registered, it is submitted that undisputedly the contract has come into existence, which could be enforceable. Making above submissions it is requested to allow present Second Appeal. 6. Present Second Appeal is opposed by Mr. Upadhyay, learned Advocate appearing on behalf of the respondents herein - original defendants. Making above submissions it is requested to allow present Second Appeal. 6. Present Second Appeal is opposed by Mr. Upadhyay, learned Advocate appearing on behalf of the respondents herein - original defendants. It is submitted that the original plaintiffs have instituted the suit for specific performance of the Agreement-to-sale and admittedly on the day of the execution of the contract the plaintiff No. 2 society in whose favour the Agreement- to-sale was executed, was a proposed society and was unregistered society and considering Section 37 of the Act and considering the decision of the Hon’ble Supreme Court in the case of this Court Maneklal Mansukhlal Co-operative Housing Society Limited (Supra) and decision of this Court in the case of this Court Ramji Mandir Narsinhji & others (Supra) when both the Courts below have dismissed the suit by holding that there was no enforceable contract/Agreement- to-sale, it is requested to dismiss present appeal. 6. It is further submitted that reliance placed upon Section 161 of the Act and Circular dated 14.08.1981 is absolutely misplaced. It is submitted that what is needed for the purpose of registration of the society cannot be considered for the purpose of enforcement of Agreement-to-sale. Submitting accordingly, it is requested to dismiss the present appeal. 7. Heard the learned advocates appearing on behalf of the respective parties. 8. It is not in dispute that the suit in question has been preferred by the appellant - original plaintiff for specific performance of the Agreement-to-sale dated 18.06.1981. It is also not in dispute that the said Agreement-to-sale was in favour of the proposed Chitrakut Dham Co-operative Housing Society Limited, Mahuva it is also not in dispute that on 18.06.1981 the plaintiff No. 2 society was a proposed society and was unregistered co-operative society and admittedly, the appellant - original society has been registered subsequently. As such the controversy with respect to maintainability of the suit for the specific performance of the Agreement-to-sale in favour of the proposed co-operative society and/or unregistered co-operative society is not res-integra. In the case of Ramji Mandir Narsinhji & Others (Supra) the Division Bench of this Court has held that Section 37 of the Gujarat Co-operative Societies Act, a Co-operative Society becomes a legal person only after it is registered and after its registration that it acquires the capacity to enter into the contract. In the case of Ramji Mandir Narsinhji & Others (Supra) the Division Bench of this Court has held that Section 37 of the Gujarat Co-operative Societies Act, a Co-operative Society becomes a legal person only after it is registered and after its registration that it acquires the capacity to enter into the contract. It is further held by the Division Bench that the language of Section 37 is clear enough to show that it is only after registration of the society that it can enter into the contracts. By making above observations it is held that a contract between the proposed co-operative society is a nullity and hence it cannot be enforced. 9. Similar view has been taken by the the Hon’ble Supreme Court in the case of Maneklal Mansukhlal Co-operative Housing Society Limited (Supra). 10. In view of the above, Mr. Patel, learned Advocate appearing on behalf of the appellant, relying upon Section 161 of the Act and Circular dated 14.08.1981 issued by the State Government has now tried to submit that as for the purpose of registration of the co-operative society, there is requirement that the proposed society which is to be registered must have land, there must be some contract to purchase the land for the purpose of registration by the society and, therefore, a contract by proposed / unregistered co-operative society is contemplated and, therefore, when a proposed co-operative society / unregistered co-operative society enters into an Agreement-to-sale to purchase the land, the same is enforceable contract. The learned Advocate, appearing on behalf of the appellant has relied upon Section 161 of the Act Section 161 of the Act confers power upon the State Government to exempt any society or class of society from any of the provisions of the Act. It is not appreciable how the said provision can be of any assistance to the appellant. Section 161 of the Act would be applicable in a case where a society or societies are already registered under the provisions of the Act and it provides for exemption by the State Government from certain provision of the Act with respect to such registered society and/or societies. Therefore, even for invoking and/or applying Section 161 of the Act there shall be a registered society or societies. 11. Therefore, even for invoking and/or applying Section 161 of the Act there shall be a registered society or societies. 11. Now so far as the reliance placed upon the Government Circular dated 14.08.1981 and submissions made on behalf of the appellant relying upon the aforesaid Circular stated hereinabove is concerned, the submissions seem to be very attractive but have no substance at all. The aforesaid Government Circular relied upon by the appellant is with respect to registration of the co-operative societies and it provides that along with the application for the purpose of registration of co-operative society, the description of the land owned by the society will have to be given and, therefore, there must be some contract or the Agreement-to-sale with respect to the land on which / for which the society is to be registered. Therefore, that Agreement-to-sale by the proposed society would be for the limited purpose of registration of the co-operative societies under the Act only. However, on the basis of such an Agreement-to-sale by the proposed co-operative society which is only for the purpose of registration of the co-operative societies under the Act it cannot be said that the same can be an enforceable contract for the purpose of specific performance of such an Agreement to Sale. 12. Section 37 of the Act is very clear. As held by the Hon’ble Supreme Court in the case of Maneklal Mansukhlal Co-operative Housing Society Limited (Supra) and by this Court in the case of Ramji Mandir Narsinhji & Others (Supra), and other judgments, proposed / unregistered society cannot be said to be a legal entity and therefore, any contract or Agreement-to-sale by or in favour of such a proposed / unregistered society, is not enforceable under the law and, therefore, no relief for the specific performance of such a contract can be granted. Merely because for the purpose of registration of the society, Agreement-to-sale / contract in favour of the proposed society and/or by the proposed society is required, that does not make the contract enforceable for the purpose of relief of specific performance. Merely because for the purpose of registration of the society, Agreement-to-sale / contract in favour of the proposed society and/or by the proposed society is required, that does not make the contract enforceable for the purpose of relief of specific performance. For the purpose of making Agreement-to-sale / contract enforceable for the purpose of specific performance, what is required is that after the society is registered under the provisions of the Act even on the basis of Agreement-to-sale in favour of proposed co-operative society, there must be a subsequent another Agreement-to-sale / contract in favour of such registered society and then and then only such Agreement-to-sale / contract is enforceable under the law for the purpose of specific performance. In other words, the moment a society is registered on the basis of Agreement-to-sale / contract in favour of proposed co-operative society (as required under the. Circular of the Government dated 14.08.1981), the said agreement can be said to be valid for the purpose of registration of co-operative society only and such Agreement-to-sale in favour of proposed co-operative society comes to an end, moment the society is registered and for the purpose of specific performance, as pointed out hereinabove, another Agreement-to-sale / contract by the registered co-operative society for the purpose of specific performance is required and then and then only it can be said that the Agreement-to-sale / contract is in favour of the legal entity (considering Section 37 of the Act) which is enforceable under the law. Under the circumstances, the contention on behalf of the appellant that as, as per the Circular of the State Government for the purpose of registration of the society, there must be an Agreement-to-sale /contract and that is always by proposed society and such a contract is contemplated in favour of the proposed society and, therefore, the same is enforceable under the law, cannot be accepted. Such an Agreement-to-sale in favour of a proposed society can be considered for the purpose of registration of the society only but is not enforceable under the law for the purpose of specific-performance, as the proposed /unregistered society is not legal entity till it is registered, as held in the aforesaid decisions by the Hon’ble Supreme Court as well as this Court. 13. 13. In view of the above and considering the fact that the suit for specific performance of the contract / Agreement-to-sale was in favour of a proposed co-operative society which has no a legal entity at the relevant time and considering the aforesaid decisions of the Hon’ble Supreme Court as well as this Court, when decree for specific performance in favour of the appellant - original plaintiff society is denied, the same is not required to be interfered with by this Court. 14. For the reasons stated above, present Second Appeal fails. It deserves to be dismissed and is accordingly dismissed. Consequently, Civil Application is also dismissed. Notice is discharged. Interim relief granted earlier, if any, stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs. After pronouncement of the order, Mr. U.I. Vyas, learned Advocate appearing on behalf of the appellant requests for continuation of the interim relief. At the outset it is to be noted that as such there was no ad-interim relief in favour of the appellant during the pendency of the present appeal. Even otherwise, in the facts and circumstances of the case and the finding of this Court recorded hereinabove, the request to continue the interim relief is rejected.