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PETITIONER: RAM JAS

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 11/09/1970

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA DUA, I.D.

CITATION:  1974 AIR 1811            1971 SCR  (2) 178  1970 SCC  (2) 740

ACT: Criminal Trial-Indian Penal Code, 1860, s. 419 read with  s. 109  High  Court  changing conviction  to  one  of  abetting cheating  by personation when no charge was framed and  also maintaining fine and in default 2 years R.I. awarded by  the trial  court-Propriety  of-lnducing  Oath  Commissioner   to attest affidavit of person wrongly identified-If amounts  to offence of cheating.

HEADNOTE: The  appellant  and four others were charged under  s.  120B I.P.C. and ss. 420, 511, 467, 468 and 471 read with s.  120B of  I.P.C.  The  trial court  convicted  the  appellant  and awarded   a  cumulative  sentence  of  3   years’   rigorous imprisonment  and  imposed a fine and in default  two  years rigorous imprisonment.  In appeal the High Court was of  the view that the appellant had committed an offence  punishable under  s.  419 read with s. 109 I.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   Penal  Code,  the  High  Court  substituted  for   the conviction recorded by the trial court a conviction under s. 419 read with s. 109 I.P.C. and reduced the sentence to  two years’  rigorous imprisonment, while maintaining  the  fine. The  Court  did  not examine the evidence  relating  to  the offences  for which the appellant had been convicted by  the trial  court  and did not record any findings on  the  facts which,   according  to  the  prosecution.  constituted   the commission  of  those offences.  The court  found  that  the appellant  had at least abetted the execution of  one  false affidavit  of  G, which in fact was signed  by  some  person other  than G 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  read with s.109 I.P.C. Setting aside the conviction, HELD :    The  High  Court lost sight of the  fact  that  no charge under s. 419 readwith  s.  109  I.P.C.  was   framed against  the appellant in the trial court.  In addition  the appellant,  when  questioned  under s. 342 of  the  Code  of Criminal Procedure, after the prosecution evidence had  been

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recorded, was not asked to explain the evidence relating  to a  charge of cheating the Oath Commissioner.   Though  there was  mention  of commission of forgery of  affidavits,  mere 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 Com- missioner. [180 H-181 B] Further  in  the  instant  case  the  facts  found  did  not constitute  the offence of cheating at all.  The finding  of fact  recorded  only showed that the Oath  Commissioner  was induced  to attest the affidavit by the deception  practised by  the appellant in wrongly identifying a person.  The  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 179 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. [182 A-C] 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 contravention of  s.  65 I.P.C.  The  High  Court  made  no  order  with  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, notice that  the sentence of imprisonment in default became illegal when  the conviction was altered to one under s. 419 read with s.  109 I.P.C.   Under   that  section  the  maximum   sentence   of imprisonment  than  can  be  awarded  is  three  years  and, consequently,  under  s.  65  I.P.C.  the  maximum  term  of imprisonment  in  default of payment of fine that  could  be prescribed was nine months, being one-fourth of three years. [182 G] [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.]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No. 11  3 of 1967. Appeal  by special leave from the judgment and  order  dated December  14, 1966 of the Allahabad High Court  in  Criminal Appeal No. 1971 of 1964. S.   C. Agrawal,, R. K. Garg, S. Chakravarti, Y. J.  Francis and’ N.   Netter, for the appellant. O. 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, Inder Singh, Badri Nath,  and  Ram Nath,  no  charges under section 120-B of the  Indian  Penal Code  and  sections  420/511, 467, 468  and  471  read  with section  120-B of the Indian Penal Code.  He  was  convicted for  offences  under  these  sections  and  was  awarded   a cumulative  sentence of three years’  rigorous  imprisonment and  a  fine  of 3,000/-, in default,  two  years’  rigorous imprisonment.   He went in appeal before the High Court  ’of Allahabad.  The High Court came to the view that the  appel- lant  had  at least committed an  offence  punishable  under section  419  read with s. 109, I.P.C., even  if  the  other

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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 9.  109, I.P.C., for the conviction recorded by the trial court,  and reduced  his  sentence to two years  rigorous  imprisonment, while  maintaining the fine of Rs. 3,000/-.   The  appellant has now come 180 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  offences. It is not necessary to reproduce 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, I.P.C., in respect of forgery of  three affidavits of Govind Ram, two dated 7th February, 1959,  and one dated 16th February, 1959, committed with the  intention of  using the affidavits for the purpose of  cheating.   The second  charge  under  S. 420 read  with  S.  120-B  I.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  claim  of Govind  Ram who was a refugee,from Pakistan; and  the  third charge under section 420/115 read with S. 120-B, I.P.C., was of attempting to cheat the office of the District Relief and Rehabilitation-cumSettlement    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  connection.   The trial  court convicted the appellant for all these  charges, and   the  appeal  in  the  High  Court  was  against   that conviction.   The High Court, on appeal, however,  convicted the  appellant for the offence punishable under section  419 read with S. 109, I.P.C., on ’the finding that the appellant had at least abetted the execution of one false affidavit of Govind  Ram which, in fact, 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 with S. 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  appellant  in the trial  court.   As  we  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 attempting to cheat the Oath  Commissioner.  in fact, 181 the  case was never brought to Court with the  intention  of obtaining  conviction  of the appellant for any  offence  of cheating in respect of the Oath Commissioner.  Not only  was

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there  no  charge  in this respect, but,  in  addition,  the appellant, when questioned under section 342 of the Code  of Criminal  Procedure after the prosecution evidence had  been recorded,  was  not asked to explain ’evidence  relating  to such a charge of cheating the Oath Commissioner.  No  doubt, there  was mention of commission of forgery  of  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 Commissioner.   Further, in recording this  conviction,  the High  Court did not even care to examine in  detail  whether all  the ingredients of the offence had been 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 Commissioner 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, I.P.C., which is as follows               "Whoever,    by   deceiving-    any    person,               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               inducement of a 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)   The   person  so  deceived   should   be               intentionally  induced  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 damage or harm to the  person               induced in body, mind, reputation or property. 182 In 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 a 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 neglected to see whether  all

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those  ingredients were proved.  On the face of  it,  though the Oath Commissioner was induced to attest the affidavit by wrong  identification  made by the appellant, there  was  no likelihood  of  any  damage or harm to him  in  body,  mind, reputation  or property, so that the Oath  Commissioner  was never cheated.  Clearly, therefore, the High Court fell into an  error in recording the conviction of the  appellant  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 High Court upheld the  sentence of  fine  of Rs. 3,000/- awarded by the 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 trial Court, the High  Court  impliedly also 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 notice  that the sentence of imprisonment in default  became illegal when the conviction was altered to one under s.  419 read  with  s. 109, I.P.C. Under that section,  the  maximum sentence of imprisonment that can be awarded is three  years and,   consequently, under section 65, I.P.C.,  the  maximum term  of  imprisonment 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 payment of fine; the High  Court, thus,  made  an  order  which was  clearly  illegal  and  in contravention  of  s.  65, I.P.C. The trial  Court  had,  of course, 183 committed   no  error  in  awarding  the  sentence  of   two years’rigorous  imprisonment in default of payment of  fine, because   that  Court  had  recorded  conviction  for   five different  offences, each punishable with  imprisonment  for seven years, and the fine of Rs. 3,000,/- was a part of  the cumulative  sentence for commission of those five  offences. We  have only pointed out that this error occurred,  because the   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. In adopting this course, the  High Court,  as  we have indicated earlier, failed  to  record  a clear finding whether the offences, for which the  appellant had been convicted by the trial Court, were proved or not. In   these  circumstances,  the  appeal  is   allowed,   the conviction  under section 419 read with section 109  of  the Indian  Penal Code is set aside.  The case will now go  back to  the  High Court for rehearing the appeal  and  giving  a decision on the appeal in respect of the offences for  which the appellant was convicted by the trial Court. Y.P. Appeal allowed. 184