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PETITIONER: KANUMUKKALA KRISHNA MURTHY

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 23/03/1964

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. GUPTA, K.C. DAS

CITATION:  1965 AIR  333            1964 SCR  (7) 410

ACT: Indian  Penal  Code,  1860  (Act  45  of  1860),  ss.   415, 419--Cheating-Public      Service     Commission,      false representations to-If deception of Government.

HEADNOTE: The  appellant applied for a post advertised by  the  Madras Public Service Commission, making certain representations in his  application  which  were found to  be  false.   He  was convicted under s. 419 Indian Penal Code for having  cheated the  commission.   This  conviction  was  confirmed  by  the Sessions  Judge and the revision was dismissed by  the  High Court. Held:     (i) Cheating can be committed in either of the two ways  described in s. 415 Indian Penal Code.   ’Deceiving  a person’ is common in both the ways of cheating. (ii) The  appellant’s misrepresentation to the Service  Com- mission continued and persisted till the final stage of  the Government itself was deceived by the misrepresentation made in the application presented to the Service Commission. The  Service  Commission  is  a  statutory  adviser  to  the Government  in  the matter of appointment  to  the  Service. Deception of such an adviser is deception of the  Government which  is  expected  to  pay heed  to  its  advice  and  act accordingly. State of U.P. v. Manbodhan Lal Srivastava [1958] S.C.R. 533, The Crown v. Gunput, 1868 Punj.  Rec.  Crl.  Case No. 6,  P. E.  Billinqhurst  v. H. P. Blackburn, 27 C.W.N.  821,  Legal Remembrancer  v. Manmatha Bhusan Chatterjee, & Legal  Remem- brancer  v.  Hridoy Narian I.L.R. 51 Cal.  250,  Emperor  v. Fazal Din (1906) 4 Cr.  L.J. 355, Queen Empress v. Appasami, I.L.R. Mad. 151.  Ashwani Kumar Gupta v. Empreror.   I.L..R. 1937  (1) Cal. 71 and In re: Hampshire Land Company,  [1896] (2) Ch. 743. referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134  of 1962.   Appeal by special leave from the judgment and  order dated  July  17, 1962 of the Andhra Pradesh  High  Court  in

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Criminal Revision Case No. 298 of 1961. A.   S. R. Chari, G. D. Gupta, S. Balakrishnan, R. K.  Garg, S.   C.  Agarwala, D. P. Singh and M. K. Ramamurthi, for the appellant. S.   G.  Patwardhan and B. R. G. K. Achar, for  the  respon- dent. March 23, 1964.  The Judgment of the Court was delivered by J.  RAGHUBAR DAYAL, J.-The facts leading to this appeal,  by special leave, are these: The  Madras Public Service Commission, hereinafter  referred to as the Service Commission, by its notification published 411 in the Fort St. George Gazette dated August 3, 1948, invited applications  for appointment of Assistant Surgeons  in  the Madras Medical Service (Men’s Section), from persons who had rendered  temporary  service as Assistant Surgeons  in  that Service  at any time between September 3, 1939 and  December 31,  1947 and from persons who had rendered War Service  and possessed the qualifications mentioned in paragraph 3 of the notification.  Paragraph 3 of the notification, inter  alia, reads:               "Applicants must satisfy the Commission--               (a)   that  they are registered  practitioners               within  the  meaning  of  the  Madras  Medical               Registration Act, 1914;               (b)   that  they possess the L.M.S. degree  or               the M.B., B.S., degree of a University in  the               Province or an equivalent qualification." The  appellant,  who  was at the time  serving  as  a  Civil Assistant Surgeon in the Madras Medical Service on a  tempo- rary  basis,  applied for the permanent appointment  to  the posts  -notified by the Public Service Commission.  In  this application  ’he made the following  representations,  which have been found ;to be false, by the Courts below: (i)  that his name was Kaza Krishnamurthy; (ii) that his place of birth was Bezwada, Krishna district; (iii)     that his father was K. R. Rao of Bezwada; and (iv) that he held the degree of M.B.B.S., II Class, from the Andhra Medical College, Vizagapatam, Andhra University. On  these facts, the appellant was convicted of the  offence under  s.  419 I.P.C. for having cheated the  Madras  Public Service Commission by personating as Kaza Krishnamurthy  and misrepresenting that he had the necessary qualifications for the  post  advertised  inasmuch as he  held  the  degree  of M.B.B.S., and that this deception of the Service  Commission was likely to have caused damage to its reputation. It  may now be mentioned that the appellant was  also  tried for  offences under s. 420 and s. 465 I.P.C.  in  connection with  certain  acts committed by him in  June  and  October, 1944.  The trial Court acquitted him of the offence under s. 465,  but  convicted  him of the  other  offence.   He  was, however, acquitted on appeal, by the Sessions Judge, of  the offence under s. 420 I.P.C. The appellant’s conviction under s. 419 I.P.C. was confirmed by the Sessions Judge and the revision against that 412 order  was dismissed by the High Court. it is  against  this order  of  the High Court that the appellant  has  preferred this appeal after obtaining special leave. It  has been contended for the appellant that on the  facts, established  in the case, no offence under s. 419 I.P.C.  is made  out  against him, as the appellant’s efficiency  as  a surgeon  is not in dispute, he having secured  good  reports from  his superiors during the period of his service and  as therefore  there  could  be  no  question  of  the   Service

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Commission suffering damage in its reputation. On the contrary, it is urged for the State that the  offence of cheating is made out against the appellant as he deceived the Service Commission and that such deception was likely to damage its reputation as he deceived the Service  Commission and  obtained  from it ’property’ viz., the  admission  card entitling him to sit at the Competitive Examination for  the appointment  of  candidates  for these  posts,  and  as  the appellant  also deceived the Government of the State by  his false representations, and dishonestly induced it to appoint him  in service and pay him salary during the period of  his service.               Section  415  I.P.C., defines  ’cheating’  and               reads:               "Whoever,    by    deceiving    any    person,               fraudulently ordishonestly 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,               reputation or property, is said to ’cheat’.               Explanation-A  dishonest concealment of  facts               is  a  deception within the  meaning  of  this               section". Cheating  can  be committed in either of the two  ways  des- cribed  in s. 415 I.P.C. ’Deceiving a person’ is  common  in both,  the  ways  of cheating.  A  person  deceived  may  be fraudulently or dishonestly induced to deliver any  property or  to  consent  to the retention of  any  property  by  any person.   The  person  deceived may  also  be  intentionally induced  to do or to omit to do anything which he would  not have done if not deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation  or property. The  Courts below, as already stated, found that the  appel- lant  cheated  the Service Commission by deceiving  that  he held  the degree of M.B.B.S. and by  intentionally  inducing the: 413 Commission to recommend his appointment to the post of Civil Assistant  Surgeon,  11  Class, and that  this  act  of  the Service  Commission was likely to damage its  reputation  as the appellant did not really possess the degree of M.B.,B.S. Assuming,  without  deciding, that such a deception  of  the Service Commission and its recommendation could, in  certain circumstances,  cause  damage to its reputation, we  are  of opinion that in the circumstances of this case there was  no likelihood of the causing of such damage to its  reputation. There  is  nothing on the record to show  that  the  Service Commission  could have ordinarily detected the deception  or that  the  appointment of the applicant to the post  in  the Medical  Service was the appointment of a person who  proved to  be  inefficient.  On the contrary, the evidence  on  the record shows that for about 10 years between his appointment and the institution of this case, he served efficiently  and obtained good reports from the Departmental Superiors.   His incompetency for the post was due to his having not obtained the  minimum  academic  qualifications  prescribed  for  the candidates  for  these posts.  We are therefore  of  opinion that  the  appellant  has  not  committed  the  offence   of ’cheating’  as defined in the latter part of s. 415  I.P.C.,

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even  though he had deceived the Service Commission  by  re- presenting  himself  to be a duly qualified  candidate,  and thus induced it to select him for the post. It  was  argued  for  the  State  that  the  Public  Service Commission  held  a competitive examination  and  must  have therefore   issued  an  admission  card  to  the   appellant entitling  him  to sit at that competitive  examination  and that therefore the appellant having induced by deception the Service  Commission  to deliver to him  the  admission  card which is ’property’, committed the offence of ’cheating’  as defined in the first part of s. 415 I.P.C. There is no force in  this  contention  for the simple reason  that  there  is nothing on the record to indicate that an admission card was issued  entitling  the appellant to sit at  the  competitive examination.   In fact, no examination as such  took  place, and  the contention for the respondent appears to have  been made  under a misapprehension arising out of the  letter  of the  Secretary  of the Service Commission  to  the  Surgeon- General  with the Government of Madras stating that  he  was enclosing   the   list  containing  the  names   and   other particulars  of  45 candidates who were  successful  at  the competitive  examination  held  by the  Commission  for  the direct  recruitment  of Civil Assistant Surgeons,  Class  II (Men)  in the Madras Medical Service.  It is  however  clear from the record that the candidates were simply  interviewed by  the Commission.  There is nothing on the record to  show that  any  written  examination to which  admission  was  by admission cards, took place.  The judgment of the Magistrate states: 414               "The  accused was interviewed by  the  Service               Commission as seen from Exhibit P-70,  extract               of Service Commission particulars". The  same statement is made in the judgment of the  Sessions Judge who said:               "The accused sent an application Ex. P-72.....               showing   that  he  passed  M.B.,B.S.   degree               examination,   and   on   receiving   it   and               interviewing    him,   the   Public    Service               Commission  selected  him as  Civil  Assistant               Surgeon, Class 1". The High Court states the same in its judgment.  It said:               "In 1948 he sent an application to the  Madras               public  Service  Commission for  selection  as               class  11  Civil  Assistant  Surgeon  and  was               selected as such following an interview by the               said body". In  these circumstances, we cannot hold merely on the  basis of suggestions, that any competitive written examination was held and that any admission card was issued to the appellant entitling  him to sit at the examination and,  consequently, cannot  hold  that the offence of  cheating  by  dishonestly inducing the Service Commission to deliver him property  was committed by the appellant. The  only  other question to determine now  is  whether  the appellant deceived the Government of Madras and  dishonestly induced it to deliver something in the form of salary to the appellant.  It is urged that the appointment to the post lay with the Government and not with the Service Commission  and that  ’the  Government would not have appointed him  to  the post in the Medical Service if it had not believed that  the appellant  possessed the necessary qualifications which,  in his  case, would be a degree of M.B., B.S., and that such  a belief  was entertained by the Government on account of  the deception  practised by the appellant in misrepresenting  in

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his  application that he held such a degree.  On  the  other hand, it is contended for the appellant that the delivery of ’property’  is to be by the person deceived, in view of  the language of s. 415 I.P.C., and that the person deceived,  if any, was the Service Commission and not the Government,  the application  containing  the misrepresentation  having  been made to the Service Commission and not to the Government. We  accept  the  contention for  the  respondent.   The  ap- pointments  to the Medical Services are made by  Government. The  Service Commission simply selected the  candidates  and recommends their names to Government for appointment.   This is clear from letter Exhibit P. 47 from the Secretary to the Service   Commission   to  the  Surgeon-General   with   the Government of Madras.  The letter refers to the enclosing 415 of a list containing the names and other particulars of  the candidates  who  were successful at the  examination,  their names  being arranged in order of merit.  It refers  to  the relaxing  of  a  certain  rule in view  of  the  paucity  of candidates  and  states  that  they  may  be  appointed,  if necessary,  pending receipt of the certificate  of  physical fitness and a further communication from the commission. This is also clear from the provisions of the Government  of India Act, 1935.  Section 241 provided that appointments  in connection  with the affairs of a Province will be  made  by the Governor of the Province.  Sub-s. (1) of s. 266 makes it a  duty  of  the Provincial  Public  Service  Commission  to conduct  examinations for appointments to the Services of  a Province.   Clause  (a)  of sub-s.  (3)  provides  that  the Provincial  Public Service Commission shall be consulted  on all  matters  relating to methods of  recruitment  to  civil services  and for civil posts and cl. (b) provides  that  it shall  be  consulted  on the principles to  be  followed  in making  appointments to civil services and posts and on  the suitability of candidates for such appointments.  The Public Service  Commission  is  constituted  in  pursuance  of  the provisions  of  s.  264.  It is thus a  statutory  body  and independent  of  the Government.  This aspect  of  a  Public Service  Commission  was  emphasized in  State  of  U.P.  v. Manbodhan    Lal   Srivastava(1)   when   considering    the corresponding  provisions of art. 320 of  the  Constitution. This Court said:               "Once,  relevant regulations have  been  made,               they are meant to be followed in letter and in               spirit   and  it  goes  without  saying   that               consultation   with  the  Commission  on   all               disciplinary   matters  affecting   a   public               servant has been specifically provided for  in               order,  first,  to give an  assurance  to  the               Services  that a wholly independent body,  not               directly  concerned with the making of  orders               adversely   affecting  public  servants,   has               considered  the  action proposed to  be  taken               against  a particular public servant, with  an               open  mind;  and,  secondly,  to  afford   the               Government  unbiassed  advice and  opinion  on               matters vitally affecting the morale of public               services". It  is in view of these provisions that the  Public  Service Commission  invites  applications  for  appointment  to  the various posts under the Government and subsequently makes  a selection  out  of the candidates for appointment  to  those posts.   The  selection  may  be  after  holding  a  written examination Dr after interviewing candidates or after  doing both.   Names  oil the candidates selected are  arranged  in

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order  of  merit  and  forwarded  to  the  Government.   The Government is expected, as a rule, (1)  [1958] S.C.R. 533.. 543. 116 to  make appointments to the posts from out of the list,  in the same order.  It has, however, discretion not to  appoint any part of the persons so selected and securing a place  in the  order of merit which would have ordinarily led  to  his appointment. Any  representation made in an application for  appointments is  really  a  representation made to  the  Government,  the appointing  authority,  and not only to the  Public  Service Commission  to which the application is presented and  which has to deal with that application in the first instance.  up to the stage ,of selection.  The object of the applicant was to  secure  an  appointment and not merely  to  deceive  the Public  Service Commission and sit at the examination or  to appear  at the interview.  The deception was  practised  for that purpose and therefore there seems to be no good  reason for  holding  that  the deception came to an  end  once  the Service  Commission was deceived and had taken action on  it as a result of the deception.  A false representation in  an application to the Service Commission continues and persists to  be  so till the application is considered by  the  final authority  responsible for making the appointments and  must therefore  be deemed to be made to that final  authority  as well.   In the instant case, when the recommendation of  the Service   Commission  was  sent  to  the   Government,   the qualifications of the recommended candidates, including  the fact that the appellant had passed the M.B.,B.S. examination were mentioned.  The Government therefore believed that  the appellant  possessed  the degree of M.B.,B.S., that  as  the Service  Commission had scrutinized the application in  that regard and had satisfied itself that the appellant possessed that degree.  The consequence of that is that the Government were  led  to believe that fact, which thus became  a  false representation. We  are  therefore of opinion that  the  appellant’s  misre- presentation   to  the  Service  Commission  continued   and persisted till the final stage of the Government passing  an order  of  appointment  and that  therefore  the  Government itself was deceived by the misrepresentation he had made  in his application presented to the Service Commission. The  fact  that  the Service Commission  is  an  independent statutory   authority  has  no  relevant  bearing  on   this question.  It is a statutory body as it is constituted under he  provisions  Of -a statutes.  It is  independent  of  the Government in the sense that in its selection of  candidates or  in  its tendering advice to the Government it  does  not take  any hint or instructions or due from  the  Government. It  brings  to bear its own independent mind  to  judge  the comparative  merits of the candidates and their  suitability to the posts they apply for.  Its function is to advise  the Government  on  the suitability of the  candidates.   It  is therefore a statutory adviser to Government in the matter of appointment  to the Services.  Deception of such an  adviser is                             417 deception of the Government which is expected to pay heed to its advice and act accordingly. There  have  been cases in which servants or  agents  of  an authority  have  been  deceived  while  the  loss  has  been suffered  by  the authority concerned.  In such  cases,  the person  deceiving  the servants or agents has been  held  to have  deceived  the authority concerned,  though  no  direct

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question  was raised about the deception being made  not  to the  authority  but  to is servant.  The  principle  of  the cases, to our mind, fully applies to the case of  candidates deceiving   the  Public  Service  Commission   and   thereby deceiving  the Government in believing that  they  satisfied the  various conditions prescribed for candidates for  those appointments.  We may refer to some such cases. In  the  Crown v. Gunput(1) the accused who had  produced  a railway  pass  with  an altered  number  before  the  ticket collector  when  traveling  by a train,  was  held  to  have thereby  dishonestly  induced the railway company to  do  or omit  to  do  what they otherwise would  not  have  done  or omitted  by  the  production  of  the  altered  pass.    The deception  of  the  ticket collector was  considered  to  be deception of the railway company. In  P. E. Billinghurst v. H. P. Blackburn(2)  certain  bills were presented by a company for payment.  They were  checked by Government officials who were deceived by certain  repre- sentations  made by subordinate officials through  whom  the bills  had  passed, and consequently payments were  made  in satisfaction  of the demands under the bills.   The  persons concerned  in  causing  the  deception  were  convicted   of cheating the Government. In  Legal  Remembrancer v. Manmatha  Bhusan  Chatterjee  and Legal  Remembrancer v. Hridoy Narain(3) it was held that  if the  evidence showed that responsible officers of  the  East Indian Railway Company and its Asansol Office were  deceived and  induced  either to allot wagons to a  certain  colliery which would not otherwise have been allotted or to make  out wagon  chalans  for the colliery which would  not  otherwise have been made, it was sufficient to support the allegations in  the charges that the railway company was, by  reason  of deceipt, induced to act in a certain way.  The deception  of the responsible officers was thus taken to be the  deception of  the  railway  company,  the  possible  damage  to  whose reputation was remote. In  Emperor v. Fazal Din(4) it was held that  the  deception practised  was likely to cause damage or harm to the  person on (1)1868 Punj. Rec. Col. Case No. 6.  (2) 27 C.W.N. 821. (3)I.L.R. 51 Cal. 250    (4)1906 4 Crl. L.J. 355. L/P(D)ISCI-14 418 whom  it was practised or to the railway  authorities  whose agent he was in the matter of appointments. In  Queen-Empress v. Appasaimi(1) the act of the accused  in obtaining,   by   personation,  a  hall  ticket   from   the Superintendent  at a University Examination and  in  signing the  name  of another person on the examination  papers  was held  to  indicate  an intention on his  part  to  lead  the University  authorities  to  believe  that  the  examination papers were answered by the other person.  This again is  on the  principle that the deception of the Superintendent  who was  working  for  the University was  a  deception  of  the University itself. Similarly,   in   Ashwini   Kumar   Gupta   v.    Emperor(2) the  accused  personated  another  person  at  a  University examination  cheating the Registrar.  It was held that  this not  only damaged the reputation of the Registrar, but  also that  of the University.  Reference may also be made to  the case reported as In re: Hampshire Land Company(3) in which a Society had lent money to a company on the borrowing of  the directors of that company who were not competent to  borrow, the  resolution  conferring on them the power  of  borrowing being  invalid  for certain reasons.  It was held  that  the

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Society had a right to assume, in a case like that, that all the  essentials of internal management had been carried  out by  the borrowing company.  On the same principle it can  be said that the Government of the State had a right to  assume that the Service Commission had verified that the candidates selected  by it for appointment by the Government  possessed the  necessary qualifications and in that view the  scrutiny by the Service Commission can be said to be on behalf of the Government. The  Government  appointed the appellant to a  post  in  its Medical  Service on being induced by deception that  he  was fully qualified for the appointment.  In consequence of  the appointment,  Government had to pay him. the salaries  which fell  due.   It is clear therefore that  the  appellant,  by deceiving the Government, dishonestly induced it to  deliver property  to him and thus committed the offence of  cheating under s. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which  he was not.  The offence really committed by him  was ’cheating’  by personation, punishable under s.  419  I.P.C. The  conviction  of  the  appellant  for  this  offence   is therefore  correct.  We accordingly dismiss his  appeal  and order  that he will surrender to his bail and serve out  the sentence. Appeal dismissed. (1) I.L.R. 12 Mad. 151.   (2) I.L.R. 1937 (1) Cal. 71. (3) 1896 (2) Ch. 743. 419