Sanderson, C.J:— In this case a Rule was issued at the instance of Sergeant B. Milton calling upon the Chief Presidency Magistrate to show cause why the conviction of and the sentence passed on the Petitioner should not be set aside on grounds one and two mentioned in the petition. The grounds referred to are (1) that upon the facts of this case no offence under sec. 417, I.P.C, has been made out against the Petitioner, and (2) that the learned Magistrate's judgment is vitiated by the admission of evidence subsequent to the alleged cheating and the said evidence has materially influenced the learned Magistrate's decision.

Now, this is a case out of the ordinary; and the facts may be shortly stated:

It appears that before the 23rd of March of this year the Petitioner had become engaged to a girl called Mildred Dorothy Sherman, the daughter of Mr. P.J Sherman, who lived at 10 Sudder Street. Apparently, either on the 23rd of March or shortly before the 23rd of March, according to the case for the prosecution, the Petitioner proposed to the girl's father for the hand of his daughter, and thereupon Mr. Sherman asked the Petitioner if he was unmarried, and the Petitioner is alleged to have assured him that he was a bachelor. The learned Magistrate has found in favour of the prosecution story in that respect, and has held that question was asked by Mr. Sherman and that the Petitioner replied by saying that he was unmarried. The Petitioner's case was that he did not say what Mr. Sherman swore that he had assured him. To my mind that is quite immaterial, because it is clear that the Petitioner was asking the father's leave to be engaged to his daughter and if he did not specifically say that he was unmarried, he impliedly represented that he was an unmarried man. The very fact of his asking the father to be allowed to be engaged to his daughter involved an implied representation that he, the Petitioner, was unmarried. The father gave his consent to the proposal, and the Petitioner was admitted to the father's house and was accepted as his future son-in-law until on or about the 24th of April, when certain information was brought to the father, in consequence of which the father charged the Petitioner by a letter with being a married man having a wife and two children in England. Upon such charge being made the Petitioner admitted the fact, and, as I understand, wrote two letters, one to the father and one to the girl, admitting that, he had been wrong, but asserting his devotion to the girl, saying that he had never redly cared for his wife and that he was under the impression that she was suffering from an incurable disease and it would not be long before she would depart this life. It appears that in one of his letters he went so far as to say that he was prepared to take a beating from the father if he wished to give him one. These two letters were delivered, as I understand, on the morning of the 25th of April. On the 26th, so we are informed, there was a dispute at Mr. Sherman's house between the parents and the son on the one hand and the girl on the other. We are told by Mr. Norton that the effect of it was that the girl was told that either she must give up the Petitioner altogether or she must leave the house. The result was that of the 27th the girl of her own accord did leave the house and she went to the Petitioner. That night she slept at the house of a certain Mrs. Leighton and in the room of Mrs. Leighton; and, on the following morning, the 28th, at Mrs. Leighton's request she left Mrs. Leighton's house: it is said that on the previous day a room had been engaged in some house at Dhurrumtollah, but the girl had to leave it in consequence of the intervention of her mother: and the result was that on the 28th a room at the Trocadero Hotel was engaged which contained two beds in which the Petitioner and the girl are alleged to have spent the night.

Those are all the facts of the story which I think I need refer to.

On the 27th, the day on which the girl left her parents' house, the mother wrote a letter to the Chief Presidency Magistrate to this effect: “Sir,—My daughter has been enticed away by Sergeant Milton of Hastings and taken to a house in Dhurrumtollah, next to Milton's stable, where he is confining her. I went to the house to see her but the people prevented me from doing so. My daughter's name is Mildred Dorothy Sherman. I pray that you will help me to have my daughter made over to me. Your most obedient,” and signed as D. Sherman—that, I understand, is the mother. Then there was an order made on the back to this effect “The complainant examined—To the Inspector, Taltolla Thanna—Warrant for arrest of Mildred Dorothy Sherman. Bail Rs. 50, mother D. Sherman to stand security.” That was on the 27th of April. Apparently, on the 30th of April this matter came before Mr. Swinhoe, the Chief Presidency Magistrate, in Court and he examined the girl. She said “I am 21 years old. I left my mother's house of my own accord. I have not been confined by any one.” The result was that Mr. Swinhoe declined to issue process. Then, on the same day, there were no less than three petitions of complaint presented by both the mother and the father. I need not go into the petitions in detail, but the petition of complaint upon which the accused has been convicted was the third one. The accused was tried by Mr. Das Gupta, the third Presidency Magistrate, and was convicted of cheating under sec. 417, I.P.C That section provides as follows: “whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both:” and in order to see what “cheating” consists of, one has to refer to sec. 415. I need not read the whole of the section, because it is agreed that it is only the second part of the section which can be material to this case. It runs thus: “whoever by deceiving any person, …. intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes, or is likely to cause, damage or harm to that person in body, mind, reputation, or property is said to ‘cheat’.”

Now, in this case it is not suggested that any damage was done to the body or the property of either Mr. Sherman or of Mrs. Sherman, but it is alleged that the deception which the Petitioner imposed upon Mr. and Mrs. Sherman did in fact damage their mind and reputation.

The learned Magistrate has, I think, really based his judgment upon the finding that the girl was seduced by the Petitioner. As to whether the girl was seduced by the Petitioner we are not in a position to express any opinion. We have not seen the witnesses and it would be very difficult for us to express any opinion upon that point without an examination before us of the witnesses in the witness-box. But I think it is only right to mention that the girl has sworn that she was not seduced by the Petitioner, and she offered to submit her body to any medical examination which might be directed.

But on the evidence the Magistrate did come to the finding that the girl had been seduced. He said “The girl's story given in re-examination that she is as immaculate as she ever was before, is impossible to swallow.” He has found that the parents have suffered in their reputation, and he has found that they have suffered in their minds. I think it is clear that he has come to this conclusion because he found that the girl was seduced.

In order to substantiate what I have said, ‘I desire to read two or three passages from the Magistrate's judgment. He said, first of all, “but for the deception the accused practised upon the parents in this case they would not have certainly allowed the accused—a married man with wife and two children—to come into their house, court and make love to their daughter in their very house, to help the accused in seducing the girl and thereby disgrace themselves.” By the use of the words “to help” it is obvious the learned Magistrate meant “unintentionally to help.” “That they have been so disgraced—that they have suffered in their reputation as respectable people cannot be doubted for a moment.” As I read his judgment, he came to the conclusion that they had been induced by the deception practised upon them to help unintentionally the Petitioner to seduce their, daughter. He said again, “Respectable people would never allow or tolerate such a thing and would never speak well of any parents who would allow a married man's entrance into their house in order to court—to make love to their daughter and thereby help the man in seducing and ruining the daughter as the accused has done in this case. …. That the parents of the girl, Mr. and Mrs. Sherman, have suffered and been suffering great mental agony over the matter (as sworn to by them) for having allowed the accused to come into their house and there make love to their own daughter for such a length of time and thereby”—again the Magistrate uses the same words—“helped the accused in seducing and ruining the girl, cannot also be doubted for a moment.” It is therefore clear that the learned Magistrate has found that deception was practised upon these two people, and as to that I agree with him. But he comes to the conclusion that they had been induced by the deception to help unintentionally of course the accused to seduce their daughter.

To my mind the conclusion to which the learned Magistrate has come cannot be supported by the facts, because it is clear beyond all doubt that on the morning of the 25th of April at the latest everybody connected with this matter knew that the Petitioner was a married man: The father and the mother knew, and the girl herself knew that he was a married man, and therefore the deception was at an end on the morning of the 25th. That the Petitioner had practised deception upon these people is undoubted, but we have to look at the natural result of that deception and only at the natural result of that deception: and consequently we have to see what were the results of the deception between the 23rd of March and the 25th of April.

Now, as regards reputation, can any body say that the parents' reputation would suffer, merely by reason of the fact that they had been induced by the deception of the Petitioner to allow their daughter to be engaged to him upon his representation that he was an unmarried man, and that when they found on the 24th of April that he was a married man, they immediately insisted upon the engagement being broken off, as they did in this case. It is unreasonable in my judgment to ask the Court to assume that the reputation of either of the father or the mother could have been injured by that. The fact that the girl was seduced, if it be a fact, to my mind, cannot be taken into consideration in considering whether the reputation of the father and the mother was injured by the deception of the Petitioner, because, as I have said, on the 25th of April the deception came to an end, and the seduction, if it took place at all, took place with the consent of the girl after she knew that the Petitioner was a married man.

With regard to the question whether there was any damage or harm to the mind of Mr. and Mrs. Sherman, the same argument applies to that. The deception and its natural consequences were at an end on the 25th of April and we have to see whether any damage or harm was done to their mind by what took place between the 23rd of March and the 25th of April. The answer may really be found in the evidence which Mrs. Sherman herself gave; she said in her evidence that her husband changed his mind because the girl left the house on the 27th of April, and in consequence of that he took action. I think it must be apparent to everyone who has listened to the facts of this case that if the girl had not left the parents' house on the 27th of April and if the subsequent alleged facts had not happened, nothing would have been done in respect of this case—no proceedings would have been taken and the public would never have heard a word about it: It is obvious that the minds of the father and the mother were damaged or harmed not by the deception which the Petitioner practised upon them, but by the girl leaving her parents' house and in consequence of the alleged seduction of their daughter which they believed had taken place on or after the 28th of April. This alleged fact took place after the deception came to an end and cannot be said to be the natural result of the deception.

For these reasons I think this Rule ought to be made absolute.

Speaking for myself I must say that the conduct of the Petitioner cannot be too strongly condemned. The Petitioner himself realised the nature of his conduct and said in his letter he deserved a beating at the hands of the father and he was prepared to take it: and one cannot help sympathising with the feelings of Mr. and Mrs. Sherman, but this is not the question we have to consider. We are here to see whether the facts of this case have brought it within the terms of sec. 417 as explained by the terms of sec. 415, I.P.C For the reasons I have given in my judgment the facts do not bring the case within that section: and, consequently, this Rule ought to be made absolute, the conviction set aside and the Petitioner discharged from his bail-bond.

As regards the second point, having regard to what I have said, it is not necessary for me to decide this question, namely, as to whether the fact of the seduction ought to have been admitted in evidence. The learned Counsel in support of the Rule based an argument upon that point, but it is really not necessary for in to decide that, because we have already disposed of the case upon the other point. I would only remark that having regard to the facts of this case it cannot be said that the seduction was the natural consequence of the deception which was practised on or about the 23rd of March, and which deception, came to an end on the 24th or 25th of April. The alleged seduction not having taken place until the 28th at the earliest, when all the facts were known to the girl, it cannot be said to be the natural consequence of the deception which had been practised.

The learned Counsel asked us to hold that no seduction had taken place, but as regards this point, as I have already said, we are not in a position to express any opinion one way or the other.

Beachcroft, J.:— I agree.

S.C.M

Rule made absolute.