BASHIRBHAI MOHAMEDBHAI versus THE STATE OF BOMBAY.

April 19.

Bashirbltai Mo!tamedbbai v.

Stale of Bombay

Sarkar J.

13ASHJlZl3HAl il!OHAillEDBHAl

THE STATE OF BOMBAY.

(JAFER brA"I and A. K. SARKAR, JJ.)

Criminal Law-Attempt to commit offence-Attempt to cheat-The complainant whether nzust be deceived-Indian Penal Code, (XLV of 1860), s. 511.

The offence of attempting to cheat n1ay be co1nmittcd even though the person attcrr ptcd to be cheated does not believe in the representations made to him and is not misled by them but only feigned belief in order to trap the offender.

Where misrepresentations had been made and money obtain-ed from the persons sought to be cheated by the misrepresenta-tions, there is an atten1pt to cheat and not increly preparation for con1mitting that offence.

CRIMJ:->M. APPELLATE Appeal No. 55 of 1955.

.Jt'RISDtCTJO:->: Criminal

Appeal by special leave [rom the judgment and orcler dated August 26, l 967, of the 13ombay High Court in Criminal Appeal No. 1208 of l 955, arising out of the judgment and order dated March 81, I 'l:)5, of the Sessions Juclgc, 13aroda, i1t Cri1ni11;tl Appeal No. 13 of 195:).

M. I<. R11mm11111!11i and ]. 13. Dar/aclwnjl, for the appellant.

R. Gr111af1_athy Tyer and R. f-1. Dhe/)(/r, for the res-pondent. 1%0. April l!J. The Judgment of the Court was delivered by

SARKAR, J.-The appellant and two others were convicted by Magistrate under s. 420 read with ss. !i l 1 and ~4 of the I nclian Penal Code and each "·as sentenced to rigorous imprisonment for 12 months and fine of Rs. -'iOO and in default: of payment, further period of imprisonrnent for four months. On appeal the accused persons were acyuittecl by Sessions Judge. The State then appealed to the High Court at Bombay and the High Court set aside the order of acquittal and restored the order passed by the learned Magistrate. Accused No. I alone has appealed against the order of the High Court to tbis Court.

The three accused persons approached one Rmnan-lal and the third accused tokl Ramanlal that accused

.. [., ]

Nos. 1 and 2 were proficient in duplicating currency notes and they were prepared to do it for Ramanal who should take advantage of the offer. The third accused then asked Ramanlal to think over the matter and promised to come again. Ramanlal later men-, tionecl this matter to his friend Champaklal, the com-plainant, and the two decided to trap the accused persons disbelieving their (professed) power to du-plicate notes. The third accused again came as promised and met Ramanlal and Champaklal. Cham-pakbl promised to find currency notes for Rs .. 20,000 for duplicating and elate was fixed when it was lo be clone. Thereafter Ramanlal and Champaklal informed the police .. The police hid themselves -in the house of Ramanlal where it had been fixed with the accused that the duplicating would be done. The three accused arrived duly. The second accu~ed spread bottles, blank papers, etc., on carpet and the first ,accused, the appel-lant, asked Champaklal to produce the currencv notes. Champaklal who was carrying bag supposed to contain the promised currency notes worth Rs. :20,000, took out two currency notes of Rs. 100 each from the bag and gave them to the appellant. As soon as the appellant had taken the money, Champaklal gave the pre-arranged signal and the police came into the room and arrested all the accused persons. They were thereafter prosecuted for the offence of an attempt to cheat upon complaint lodged by Cbampaklal with the result already mentioned. Three points were argued by the learned advocate for the appellant. First, it was said that the charge was for an attempt to cheat Champaklal but there was no evidence to show that any representation had been made by anyone to Champaklal. The Courts below howewr found that such representation had been made and we think that the finding is clearly ,;upported by the evidence on record. The next point taken was that there had been no attempt to commit the offence of cheating but only prep<tration to commit that offence which was not punishable. It seems to us clear that an attempt to commit the offence had actually been made. false representation had been made, and stim of Rs. 200

Bashirbhai Mohamedbhai v. State nf BnmhqY,

Sar/.:ar J.

Bn1liirbkai lvluhnmedbl1ai v. Stnlt nf Bombny Sarkqr .J.

had been obtained from Champaklal. These clearly arc acts done towards the commission of the offence within the meaning of s. 511 of the Indian Penal Code. In fact t:hc making of the false representation is one of the ingredients for an offence of cheating under s. 420 of the Indian Penal Code. So also the delivery of property is another of such ingredients. Both these ingredients took place in this case and the accused brought them about. Therefore it cannot be said that: the accused had only made preparation and not an attempt to commit the offence.

The last point argued was that there was no attempt to cheat because the complainant had not been deceived. It is true that the' complainant had not been taken in. He had never believed that the accused could actually duplicate currency notes. He feigned belief only in order to trap the accused. That how-ever clearly makes no difference so far as an attempt to cheat is concerned. The accused had attempted to cheat the complainant. That they had failed in their attempt is irrelevant in considering whether they had committed the offence of attempting to cheat. This view of the matter has been accepted in the High Courts uniformally. In the Government of Brngal v. Umesh Ch11nrle1· Mitter(') it was observed that "A man may attempt to cheat, although the person he attempts to cheat is forewarned, and is therefore not cheated.'' This is clearly the right view.

This appeal is entirely without merit and it ts cl ism issed.

jJpenl dismissed.