Ramchandra Bhikaji Moharir v. Emperor

Mirza, J.:— The applicant was convicted by the Sub-Divisional Magistrate, 1st Class, E.D Poona, under Ss. 342, 384 and 420, I.P.C, and sentenced to three months' rigorous imprisonment for his conviction under S. 342, three months' rigorous imprisonment under S. 384, and six months' rigorous imprisonment and a fine of Rs. 100, in default one month's further rigorous imprisonment, under, S. 420. The three sentences were to run consecutively. On appeal the Sessions Judge, Poona, maintained the convictions under Ss. 342 and 384, and was of opinion that the conviction under S. 420 was not correct. He confirmed the sentence of three months under S. 342, and passed a sentence of nine months under S. 384. It was contended before the Sessions Judge that by passing a sentence of nine months under S. 384 he was enhancing the original sentence which was for three months only. The learned Judge was of opinion that the offences under Ss. 384 and 420 were two aspects of one offence. The offence appeared to him to have the aspect which fell under S. 384, viz., extortion, rather than the aspect which fell under S. 420, viz., cheating, and that he was only maintaining the original sentence which was nine months in the aggregate under Ss. 384 and 420.

2. The offences under Ss. 384 and 420 are both offences against property, and fall under Ch. 17, I.P.C No doubt they have certain features in common. Each deals with the wrongful taking of property. The finding of the lower Court here is that money was taken by the applicant. We are of opinion, however, that although there is a common feature between the offence of extortion and that of cheating, yet they cannot be regarded as two aspects of one offence. That they are distinct offences is indicated by the manner in which punishment is provided for each of them. The maximum punishment for extortion is three years' imprisonment, whereas the maximum punishment for cheating is seven years' imprisonment.

3. The essence of the offence of extortion is that the offender should intentionally put a person in fear of an injury to that person or to any other, and thereby dishonestly induce the person so put in fear to deliver to any person any property or valuable security. The essence of the offence of cheating is that by deceiving any person fraudulently or dishonestly the person so deceived should be induced to deliver any property to any person. If the two offences are distinct as we hold them to be, the lower Court has in effect enhanced the sentence under S. 384 by six months. This it had no power to do under the provisions of Section 423(1)(b) of the Cr PC.

4. In Queen-Empress v. Hanma(1) this Court gave a ruling that offences under Ss. 379 (theft) and 429 (mischief) were distinct offences, and that the lower Court in acquitting the prisoner on the charge of theft under S. 379 but maintaining his conviction under S. 429 for mischief and yet confirming the original sentence which had been passed for the two offences had committed an illegality by enhancing the sentence under S. 429. Both the offences in this case were offences against property and fell under Ch. 17, I.P.C In Paramasiva Pillai v. Emperor(2) it was held that the offences of theft and rioting were distinct offences, and in acquitting the prisoner of the offence of theft (S. 379) but confirming his conviction for the offence of rioting (S. 147, I.P.C), and yet maintaining the original sentence passed against him under the two sections the lower appellate Court had enhanced the sentence, and had thus committed an illegality. Similarly, in Ramzan Kunjra v. Ramkhelawan Chowbe(3), the offences of theft and rioting were held to be distinct offences, and in acquitting the prisoner of rioting but confirming his conviction for theft and maintaining the original sentence under both sections the lower Court was held to have enhanced the sentence and committed an illegality.

5. In the latter two cases no doubt the offences do fall under different chapters of the Indian Penal Code, but the principle governing the cases is applicable, in our opinion, to the case with which we are dealing. The sentence passed by the lower Court should, in our opinion, have been one of three months' rigorous imprisonment under S. 384, and not of nine months, the aggregate of the two original sentences under Ss. 384 and 420.

6. While admitting this application we had issued a rule on the accused to show cause why his sentence under S. 384 should not be enhanced. That rule has now been argued before us. The evidence conclusively shows that the applicant extorted Rs. 150 from the complainant Rangu. The applicant was head police constable of the locality, and abused his power in extorting the money. Such an offence calls for a deterrent punishment. The original sentence of three months, in our opinion, was inadequate. We enhance the sentence under S. 384 from three months to nine months' rigorous imprisonment. The applicant will, therefore, suffer in the aggregate a sentence of twelve months.

D.R/R.K

7. Application admitted.