Local Government v. Gangaram Accused .

1. This is an appeal directed by the Local Government under Section 417 of the Cr PC, from an appellate order of acquittal passed by the Sessions Judge, East Berar, reversing the conviction and sentence passed upon the above-named accused by a first Class Magistrate, Amraoti, for cheating punishable under S. 420, Indian Penal Code.

(2) The main facts of the case are not in dispute. One Tukaram Bapuji who was the Revenue Patel of Walgaon in the Amraoti district died in the month of May of the last year and the question of the appointment of a successor to him arose.

There were two possible claimants to the Patelki and they were the accused Gangaram Krishnaji Kunbi and his younger brother Pandurang Krishnaji. In the ordinary course, Gangaram being the elder brother should have been recommended, but the village Patwari recommended Pandurng instead, on the ground that he could read and write well and had read up to the fifth Marathi Standard.

2. It has to be stated that under the Berar Revenue Book Circular No. V-I no person can be appointed a Patel, who has not passed an examination of the fourth vernacular standard of the Educational Department in Berar, or an equivalent test in another province. Gangaram presented an application on 14th June, 1920 to the Deputy Inspector of Schools, Amraoti stating therein that he had passed the fourth Marathi standard from the Walgaon school and requesting that a certificate to that effect be given him. A student passing the fourth vernacular standard is granted what is called a Primary School Certificate on a printed form. The Deputy Inspector of Schools consulted the examination result sheets, which are preserved in his office and finding the name of Gangaram Krishnaji from the Walgaon school, amongst the successful pupils at the examination held in 1906, issued the necessary certificate to the accused.

3. In the proceedings taken in Revenue Court for the appointment of a successor to Tukaram Bapuji, the accused produced that certificate in support of his claim to the Patelki.

3. On his receiving certain information the Deputy Inspector sent for and examined the admission registers of the Walgaon school and found that the accused was not at that school in the year 1906 and that he had never passed the fourth standard examination. Gangaram Krishnaji mentioned in the examination result sheets was a different person altogether, being a Mali by caste. It has to be stated that in the examination result sheets, there was no column for caste and hence the caste of the successful candidate Gangaram Krishnaji was not mentioned.

4. On these facts the accused was prosecuted and tried on a charge that he had cheated the Deputy Inspector by dishonestly inducing him to deliver the certificate to him, an offence punishable under S. 420, Indian Penal Code.

4. The defence of the accused was that he had about 14 years ago appeared at the fourth standard examination and that he did not know if he was or was not successful at it. He said that after the death of Tukaram Bapuji he made enquiries on the point and was told by one Mr. Gore, the agent of the Jagirdar at Walgaon, that a boy by name Gangaram Krishnaji had passed the examination in the year 1906. Acting on this information the accused said he applied to the Deputy Inspector of Schools for the necessary certificate.

5. It is now admitted by the accused that the information received by him was incorrect and that Gangaram Krishnaji shown in the examination sheets of 1906 was a different person from him. The defence in short was that the accused had honestly on the strength of the information received by him believed that he had passed the examination and that in applying to the Deputy Inspector of Schools for the certificate and in filling it in the revenue proceedings he had acted in good faith.

5. Both the Magistrate and the learned Sessions Judge did not believe the explanation given by the accused and they were of opinion that the false representation was deliberately made by him to the Deputy Inspector for the purpose of obtaining the certificate.

6. The learned Sessions Judge held it proved that the accused made a false statement to the Deputy Inspector and on its strength obtained the certificate.

7. I have gone through the evidence and my conclusion is that the above finding is a correct one. I cannot believe that the accused honestly believed that he had passed the fourth standard in 1906, when he was not at school at all that year.

8. The school registers, were examined by me and these show that Gangaram Krishnaji Kunbi finally left the school in 1900 and no boy of the name of Gangaram Krishnaji Kunbi was in the school at all after that year.

9. I have separately prepared a statement from the admission registers of the Walgaon school showing the dates and years when Gangaram Krishnaji Kunbi joined and left the school and the classes is which he was reading. From that statement, it will be apparent that no boy of the name of Gangaram Krishnaji Kunbi attended the school after 1900; the accused could not have therefore been at the school after 1900 and he could not have believed thathe had in 1906 passed the fourth standard examination.

10. It must betaken as established that the accused knowingly and deliberately made that false representation to the Deputy Inspector and that it was on the faith of that representation that the Deputy Inspector was induced to issue a certificate to him.

6. The learned Sessions Judge was of opinion that even on these facts, the accused could not be held guilty of cheating and that his act could not come within the definition of cheating as given in S. 415, Indian Penal Code.

11. If we look to the definition we find that it contains two distinct parts, the opening words “whoever by deceiving any person” being common to the whole section. The necessary grounds of the offence of cheating are.—

1. Deception of any person; and

2. (a) Fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or

(b) Intentionally inducing that person 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.

12. Thus the offence of cheating is made up of the ingredients 1 and 2 (a) or 1 and 2 (b). The first ingredient is common and in all cases of cheating there must be a deception practised by the accused upon some person. Let us now see, if the first ingredient mentioned above is present in the case before us. The facts found in the case will show that the accused did deceive the Deputy Inspector of Schools, by causing him to believe what was not true. The first requisite is therefore fulfilled in the present case. It was a wilful mis-representation of facts by the accused.

(7) We will now consider if the act of the accused satisfied the condition 2(b). He no doubt by making the false representation intentionally induced the Deputy Inspector of Schools to deliver to him the certificate, which he would not have done, had he not been so deceived.

13. The question however is:—Did the preparation of the certificate and its delivery to the accused cause or was it likely to cause damage or harm to the Deputy Inspector in body, mind, reputation or property?

14. The Deputy Inspector did not certainly suffer any harm or damage in body or in property. It could not be said that he had suffered in reputation because he had been deceived by an ordinary person like the accused. He could not have suffered any mental pain by the deception practised upon him.

15. The harm or injury contemplated by the section must be tangible and reasonable, and not remote or imaginary.

16. In the present case I do not find that any damage or harm was caused or was likely to be caused to the Deputy Inspector by the deception practised upon him by the accused. The ingredient 2(b) is therefore wanting in the case.

(8) We must next come to the question whether the act of the accused falls under the above mentioned Cl. 2(a). The two conditions are that the accused must have done the act fraudulently or dishonestly and there must have been a delivery of property. The learned Sessions Judge was of opinion that the certificate in question could not be called ‘property’ and the learned Counsel appearing for the accused here supports him.

17. A number of cases were cited for both the sides during the argument, but many of these were not exactly applicable to the facts of the case. That the act of the accused was fraudulent admits of no doubt.

18. In the case of Kotamraju v. Emperor (1905) 28 Mad. 90 the meaning of the term ‘fraudulently’ was fully explained and it was observed that where there was an intention to secure an advantage or benefit on one hand or to cause loss or detriment on the other, there was an intent to defraud.

19. The following observations of Sir James Stephens from his History of Criminal Law of England were quoted with approval:

“A practically conclusive test of the fraudulent character of a deception for criminal purposes is this. Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known?”

20. In this case the accused by means of the deception practised by him upon the Deputy Inspector wanted to secure for himself an advantage, as against his younger brother, to which advantage he was not entitled.

21. The first condition is thus fulfilled in the present case.

(9) Even if a fraudulent intention is proved, the offence of cheating is not complete, unless there is also a delivery of property. The question, therefore, is whether the certificate secured by the accused can be called “property.”

22. It is contended for the accused that the certificate cannot be called ‘property’ as it has no value whatsoever, it being merely a piece of paper. Whether a certain article is or is not ‘property’ does not depend upon its possessing a money or market value. An article may not fetch any money in the market and still it may have a value to certain persons.

23. In my opinion the certificate which the accused obtained from the Deputy Inspector had a special value to both of them, though that value could not be computed in money. A University diploma of a graduate or a license of a licentiate has a particular value to its holder and a person stealing it from his possession would not be acquitted on the ground that it has no value and is therefore no ‘property.’

24. In Queen Empress v. Appasami (1889) 12 Mad. 151 a ticket entitling its holder to enter an examination room was held to be property under S. 415, Indian Penal Code.

25. A similar view was taken in Queen Empress v. Sashi Bhushan (1893) 15 All. 210 , 1893 A.W.N 96 where a written certificate very similar to the one obtained by the accused in the present case was held to be ‘property’ and it was observed as follows:—

“If the prisoner had obtained the certificate which he tried to obtain, and someone had stolen from him, no one, we imagine, would suggest that the thief could not legally be convicted, under S. 379 of the Indian Penal Code, of the theft of the certificate, but if the certificate was not movable ‘property’ the person who dishonestly took the certificate out of the possession of the prisoner, without the prisoner's consent, could not be convicted of a theft in respect of it.”

26. My view therefore is that the certificate secured by the accused from the Deputy Inspector was ‘property’ within the meaning of S. 415. The accused is therefore guilty of cheating as defined in the first portion of that section.

27. It is unnecessary to refer to cases cited by the Sessions Court, as I have already found that the act of the accused did not fall under the last portion of S. 415, Indian Penal Code.

(10) The result is that the appeal is allowed and the order of acquittal set aside. The accused is convicted for the offence of cheating punishable under S. 420, Indian Penal Code. As regards the sentence, the Magistrate had awarded him rigorous imprisonment for one year.

28. The sentence was somewhat severe. The case had been going on practically for the last six months and the accused has been in suspense so long. In my opinion, rigorous imprisonment for 4 months would meet the requirements of this case and I sentence the accused accordingly.

29. Appeal allowed.