RAM JAS versus STATE OF U.P.

RAM .. JAS

stATE OF U.P.

September 11, 1970

[V. BHARGAVA·AND I .. D. DUA, •JJ.]

C1:in1{naJ. ~Trial-Indian Penal Code,-1860, s. 419 read '.Vifh s. 109 High Court chariging conviction 1o one -0/ abetting cheating .by persona~ tion when no charge was framed and izlsq mgintaining fine and in default 2 years R.l. awarded by the trial court-Propriety of-lnducing Oath C(ornrnisliont:r to attest affidavit •Of per.son lvrongly hlt·1uif.ed-If an1ounts to offence of c:heafing:

The appellant· and.four othhs were charged under s. !70B I.P.C. and ss. 420, 511, 467, 468 and 471 read with s. 120B •of r:t>:c. TI1c trial court convicted the . app.ell"1!,t and . awarded cucpulatiye sentence of 3 years' risorous imprisonment and~iffi_pose,d fine .aqd in default two years rigorous inlprisonmenf. ln appeal tbe High Court was of the view that the appellant bad· committed an .offel\Ce punishable under s. 419 read with s. 109 J.P.C., even if the. other' charges, for which 'he had been convicted, may mlt be .establis\_>ed. On this view and relying on the power of th6 couft·to 'Convert his convicti6n to ~ppropriate sectior\.s of the Renal Codei the High Court substituted'for'the conviction recorded by tlie Vial .co11rt -a convictioa~un~cr s. 419 read \Vith s. 109 l.P.C. and reduced the sen· tcnce to t\Vo years' rigorous im!.)risonn1ent, while maintijining the fine. The Court did riot ex:::.mine the c,videnc.:: relating to the offences for \vhich th.e a;;pellant had been coi'lvicted by the trial court and did' not record 8.ny findings. on the facts which, according to the prosecut!on: constituted the com'mission Of those . offences. The court found that the appeUant h::d ~t lc:ist nhettcd th:e execu'ti.on of on~ false affidavit of G, \vhich in fc:.ct ,\,.ns· ·signed by so1ne person other than and that person \\'as wrongly i<l~ntified by the appellant before the Oath Commissioner. and, as Suci1. the appellant \vas held ·g'uilty of abetting the offence of cheating by pcrson3.tioD: conStit.utittg the offence nunishable Under s. 419 read vYith s. 1-09. l.P.C .. Settip.g aside the conviction,

BE'(.D.: The High Court .Jost sight of the fact that no charge unde'r s. 419 read with S, 109 I.P.C. was framed against the. appellant in the trial co1.1rt.. Jn addition the appellant, when questioned. under s. 342 of th!! Code of Criminal Procedure;· after the prosecution evidepce had· been recorded, was· no~ ai:;ked to exp.lain the evidence relatin2 to chafge of cheating the Oath Commissioner. Though there was mention of com-n1isSion of forgery. of affidavits, mere mention of the commission of that offence could not poSllib!y. lead the appellant to infer that he 'Yas liable to be convicted for abetting the offence of cheating the Oath Com-missioner. [180 H-18·] BJ

Further in the instant case the facts found did not constitute the qffence of cheating at all. The finding of fact recorded only showed that the Oath Commissionc'r was induced to atrest the ilffidavit by the deception practised by the appellant in wrongly· identifyin~ ·a person. The act done by the Oath Commissioner of attesting the ilffidavit could not, however, possibly cause any dathage or harm to the Oath Com· missioner in body, mind, reputation or property. The Oath Commissioner

was ob~iou•!Y n?t induced to deli':er any propctty to anybody by this wrong 1dent1fication, nor was he mduced to consent that any penon should retain any property. [182 A-CJ

In approving the sentence of two years' imprisonment in default of payment of fine, the High Court, made an order which was clearly illegal and in cont'ravention of s. 65 l.P.C. The High Court made no order with II regard to imprisonment in default; but, by upholding. the fine awarded by the. trial court, the High Court impliedly affirmed the imprisonment to be undergone in default of payment of fine. In affirming this sentence of imprisonment in default of payment of fine, the High Court failed to notico that the sentence of imprisonment in default becam~ illegal .when the conviction was altered to one unde'r s. 419 read with s. 109 I.P.C. Under that section the maxin1um sentence ·of. imprisonment tha'n can he awarded is three years. and. consequently, under s. 65 l.P.C. the maximum term of imprisonment in default of payment of fine· that could he prescribed was nine months. being one-fourth of three years. [182 GJ

[The case was remitted to the High Court for rehearing in respect of the offence for which the appellant was convicted by the trial court.]

CRIMINAL APPELLATE JURIS[)lCTION: C.nmina\ Appeal No. J 13 or 1967.

Appeal by special leave from the judgment and order dated December 14, 1966 of the Allahabad High Oiurt in Criminal Appeal No. 1971 of 1964.

S. C. !lgruwal. R. K. Garg, S. Chakravarti, JI. I. Francis and N. Nelter, for the appellant.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by

Bhargava, J. The appellant, Ram .Jas, was tried along with four others, Madan Lal. lnder Singh, Badri Nath, and Ram Nath, no charges under section 120-B of the Indian Penal Code and sec-tions 420.[1]51 L 467, 468 and 471 read with section 120-B of the Indian Penal Code. He was convicted for offences uader these sections and was awa1ded cumulative sentence of three years' rigorous imprisonm.~nt and fine of 3,000/-, in default, two years' rigorous imprisonment. He went in appeal before the High Court of Allahabad. The Hii;h Court came to the view that the appel-lant had at least committed an offence punishable under·section 419 read withs. 109, l.P.C., even if the other charges, for which he had been convicted, may not be established. On this view, and relying on the power of the .Court to convert his conviction to appropriate sections of the Indian Penal Code, the High Court substituted the conviction of the appellant under s. 419 read with s. 109, l.P.C., for the convictiqn recorded by the trial coui:t, and reduced his sentence to two vears' ri.l!orous imprisonment, while mainiaining the fine of Rs. 3,000/-. The appellant has nOW come

·up in appeal to this Court against this judgment of the High Court by special leave.

Before dealing with the correctness of the conviction recorded by the High Court, we may take notice of the fact that the ·High Court, in its judgment, did not examine the evidence relating to the offences for which the appellant had been convicted by the trial court and has not recorded any findings on the facts which, according to the prosecution. constituted the commission of those o!"ences. It is not necessary to rcprodu·~c the ingredients of all the offences with which the appellant was charged. It is sufficient to mention three charges which are relevant to the question whether the conviction recorded by the High Court is justified. One of the charges was under s. 468 read with s. 120-B, 1.P.C .. in respect of forgery of three affidavits of Govind Ram, two dated 7th February, 1959, and one dated 16th February, 1959, com-mitted with the intention of using the affidavits for the purpose of cheating. The second ch1rge under s. 420 read with s. 120-B. T.P.C., related to cheating two persons, Madan Lal and Chuni Lal. by dishonestly inducing them to deliver certain sums of money so as to get their debts adjusted against the cl~im of Govind Ram who was refugee from Pakistan; and the third charge under sec-tion 420/115 read with s. 120-B, l.P.C., was of attempting to cheat the office of the-Districl Relief and Rehabi!itation-cum-Settlenient Officer, Saharanpur. by dishonestly inducing the office to adjust the .debits of Madan Lal and Chuni Lal against the claim of Govind Ram and of using the forged affidavits in that connec-tion. The trial court convicted the appellant for all these charges, and the appeal in the High Court was against 1hat conviction. The High Court, on appeal, however, convicted the appellan! for the offence punishable under section 419 read with s. 109. I.P.C., on the finding that the appei1ant had at least abetted the execution of one false affidavit of Govind Ram which, in faci, was signed by some person other than Govind Ram and that person was wrongly identified .by the appellant before the Oath Commissioner and, as such. the appellant was held guilty of abetting the offence of cheating by personation constituting the offence punishable under section 419 read withs. 109. I.P.C.

In recording this finding and conviction, the High Court lost sight of the fact that no such ·charge was framed against the appel-lant in the trial court. As v,e have indicated above. the persons. who were cheated or attempted to be cheated, referred to in the charges framed against the appellant. were Madan Lal, Chunni Lal, or the office of .the Relief and Rehabilitation-cum-Settlement Officer, Saharanpur. There was no charge at all relating to any cheating or atiempting to cheat the Oath Commissioner. In fact,

the case was never brought to Court with the intention of obtain-ing conviction of the appellant for any offence of cheating in res-pect of the Oath Commissioner. Not only was there no charge in this respect, but, in addition, the appellant, when questioned under section 342 of the Code of Criminal Procedure after the prosecu-tion evidence had been· recorded, was not asked to explain evi-B dence relating to such charge of cheating the Oath Commis-sioner. No doubt, there was mention of commission of forgery or affidavits; but the mention of the commission of that offence could not possibly lead the appellant to infer that he was liable to be convicted for abetting the offence of cheating the Oath Comtnis: sioner. Further, in recording this conviction, the High Court did not even care to examine in detail whether all the ingredients of the offence had be:m established by the prosecution evidence. The only finding of fact was that the appellant, who was known to the Oath Commissioner, wrongly identified some other person . as Govind Ram and got the affidavit attested by the Oath Commis-sioner as if it was being sworn by Govind Ram. This act of wrong · identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in section 415, l.P.C., which is as follows :-

This act of wrong ·

"Whoever, by deceiving any persou, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that.any person shall retain any property, or 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, reputa-tion or property, is said to "cheat" "

The ingredients required to constitute the offence of cheating· are:-

(i) There should be fraudulent or dishonest in-ducement of person by deceiving him;

(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) !he person so deceived should be intentionally mduced to do or omit to do anything which he would not do or omit if he were not so deceived: and (iii) In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause d:1mage or harm to the person induced in body. mind, reputation or property. ·

Jn the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to attest the affidavit_ by the deception practised by the appellant in wrongly identifying person as Govind Ram when he was in fact not Govind Ram. That act done by. the Oath Commissioner of attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under section 419, substantively or with the aid of section 109, I.P.C., could only have been justified if the facts proved constituted all the ingredients of the offence of cheating. In recording the conviction, the High Court neglecied to see whether ail those ingredients were proved. On the face of it, though the Oath Commissioner was induced to attest the affida-vit by wrong id~ntification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputa-tion or property, so thai the Oath Commissioner was never cheated. Clearly, therefore, the High Cot!tt fell into an error in recording the conviction of the appeliant for the offence under section 419 read with section 109, I.P.C., and substituting that conviction in place of the conviction for offences for which 'he had been punished by the trial Court.

We may, in this connection, take note of another error com-mitted by the High Court, though it is not material to the result of this appeal. The Higl\ Court upheld the sentence of fine of Rs. 3,000/- awarded by th~ trial Court to the ·appellant. The trial Court had directed that, in default of payment of fine, the appellant was to undergo two ·years' rigorous. imprisonment. The High Court made no order with regard to imprisonment in default; but. by upholding the fine awarded by the iria,I Court, the High Court impliedly also affirmed the imprisonment to be undergone in default of payment of fine. In affirming this sentence of im-prisonment in default of payment of fine, the High Court failed to notic.~ that the sentence of imprisonment in default became illegal when the conviction was altered io one under s. 419 read withs. 109, I.P.C. Under that section, the maximum sentence of imprisonment that can be awarded is three years and, conse-quently, under section 65, I.P.C., the maximum term of imprison-ment in default of payment of fine that could be prescribed was nine months, being one-fourth of three years. In approving the sentence of two years' imprisonment in default of paymeniof fine; the High Court, thus, made an order which was clearly illegal and in contrn.vention of s. 65, I.P.C. The trial Court had, of course,

committed no error in awarding the sentence of two years' rigo-rous imprisonment in default of payment of , fine, because that Court had recorded conviction for · five different offences, ea'ch punishable with imprisonment for seven years, and the fine of Rs. 3,000/- was part of the cumulative sentence for commission of those five offences. We have only pointed out that this error occurred, because th~ High Court adopted the extraordinary course of convicting the appellant for an offence with which he had never been charged, for which he had never been tried, and without examining whether the ingredients of that offence were established and what was the maximum punishment that could be awarded for it. Jn adopting this course, the High Court, as we have indicated curlier, failed to record clear finding whether th·: offences, for whi~h the appellant .had been convicted by the trial Court, were proved or not.

Jn these circumstances, the 11ppeal is allowed, the convictton under section 419 read with s~ction I 09 of the Indian Penal Cnde is set aside. The case will now go back to the High Court for re-hearing the appeal nnd giving decision on the appeal in respect' of the offences for which the appellant wns convicted by the trial Court.

Appeal allowed.