1. This is a revision petition against the conviction and sentence passed by the' Additional Sessions Judge, Shimoga, in Chikmagalur Criminal Appeal No. 4 of 51-52, confirming the conviction of the accused of an offence under Section 417, I.P.C. but modifying the- sentence passed on she petitioner by the Munsiff-Magistrate of Narasimharajapur in C.C. No. 98 of 50-51.
2. The case against the petitioner is that he induced the Government to pass PR order that certain G.I. Pipes belonging to Kallatipura village panchayat might be sold to him at the rate of 0-6-0 per foot and induced them to believe that they were needed by him for being used for agricultural purposes for his lands. That such an order was passed by the Government and that in his applications before different authorities he referred to lands as 'my' land or 'our' lands is not disputed. It is in evidence that the G.I. pipes had been laid for purposes of affording water facilities to the village and that they had become old and that when they were sold in auction the highest bidder was prepared to pay only Rs. 800/- for them. That sale was set aside as the Iron and Steel Controller, Bhadravathi, objected to the sale without his permission. Mysore Iron and Steel Works, Bhadravathi were prepared to purchase the G.I. Pipes at 0-4-9 per foot and this would have fetched a sum of Rs. 1,300/-. The petitioner however gave an offer to purchase the pipes at a rate of 0-6-0 per foot. But it is contended for the prosecution that the Government passed an order that these pipes might be sold to the petitioner in view of his slating that they were to be used for agricultural purposes and that the petitioner instead of using them for agricultural purposes has sold them away. It has to be remembered that the Government when it sanctioned the sale must have thought, like the petitioner, that those pipes could be used for agricultural purposes. It was evidently found later that they were not useful for agricultural purposes as is clear from the evidence of the expert P.W. 8. What is seriously contended is that the accused owns no lands and he deceived the Government by saying that he owns some lands aid that he would use the pipes for agricultural purposes. It is unfortunate that the learned Magistrate did not give sufficient opportunity to the petitioner to prove his case.
3. Six witnesses had been cited toy the accused before the learned Magistrate. It is only in respect of two of them, the petitioner did not want any warrant to be issued. But the learned Magistrate was bound to secure the attendance of the other witnesses at any rate, if necessary by coercive steps. As succinctly brought to the notice of the learned Magistrate by the petitioner in his application, the prosecution had taken one and a quarter year to close its case and the petitioner was not even given breathing time to produce his witnesses. The learned Magistrate ought to have taken appropriate steps to secure the attendance of the defence witnesses. On this ground alone the judgment of the Courts below convicting the petitioner cannot stand.
4. It is laid down in Section 257, Criminal P.C. as follows:
'If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing'.
The use of the word 'shall' in the section, indicates that the language in it is imperative. The Magistrate has no option in the matter of issuing process to compel the attendance of witnesses unless it be that he considers that the application of the accused should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and he records such ground in writing. The application of the accused for issue of process for compelling the attendance of his witnesses has not been refused on any such ground. The conviction and sentence of the accused who was given no opportunity to prove his case has therefore to be set aside even if the prosecution evidence has made out a case for conviction.
5. The prosecution evidence even as it stands without any evidence to rebut it, is not sufficient to support the conviction of the accused of the offence of cheating under Section 417, I.P.C. The offence of cheating is defined in Section 415, I.P.C. It 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, reputation or property is said to 'cheat''.
The first ingredient of the offence is that a person must be deceived. This by itself is not sufficient for convicting the person deceiving of the offence of cheating. The second ingredient of the offence is that the person deceived must have been induced to deliver any property or induced to consent that any person shall retain any property or he must have been intentionally induced 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. It is important to notice that a person who by deception induces another person to do or omit to do anything which he would not do or omit if he were not so deceived, does not commit the offence of cheating unless the act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. The act or omission must be such as to cause or is likely to cause damage or harm to the person deceived. No offence of cheating can be said to have been committed if one person is induced by deception to do or omit to do something and this act or omission causes or is likely to cause damage or harm to another person.
6. In this case the prosecution version is that the petitioner-accused induced the Government of Mysore to pass an order that he may be allowed to buy some old pipes at the rate of six annas per loot and that he deceived the Government by stating that he wanted to make use of those pipes for agricultural purposes but that he ultimately sold them. It is in evidence that these pipes are too small for being used for agricultural purposes as has been spoken to by the Expert P.W. 8. If at the time the Government was approached by the petitioner for permission to purchase these pipes it was represented that these pipes would be used for agricultural purposes and the Government gave the permission, it is clear that both the petitioner and the Government at that time thought that the pipes were fit for agricultural purposes. Evidently the pipes could not be used for agricultural purposes, in accused's lands or the lands of others as the pipes were later found to be not fit for being used for such purposes. It cannot therefore be said that the Government were deceived into passing an order in favour of the petitioner. Assuming however that there is some reason to think that the Government were deceived into passing an order in favour of the accused and they would not have passed such as order if the accused had not deceived them, the question that arises is whether this act of Government causes or is likely to cause damage to Government. If any loss has incurred it is incurred by the Village Panchayathi. It is not shown that any loss was incurred at all even by the Village Panchayathi as the Mysore Iron and Steel Works, Bhadrarathi were prepared to purchase the pipes only at the rate of 0-4-9 per foot while the petitioner offered to purchase and purchased them at the rate of 0-6-0 per foot. When the pipes had been auctioned in public auction the highest bidder was prepared to pay very much lower than what even the Mysore Iron and Steel Works, Bhadravathi were prepared to pay, it cannot be said that the act of Government in passing an order in favour of the accused caused or was likely to cause damage or harm to any one, still less to Government.
Even if the evidence adduced by the prosecution is believed it is clear therefore that the accused is not guilty of the offence of cheating.
7. I agree with Abdul Rashid J. in his observations in -- 'Mohamed Baksh v. Emperor' AIR 1941 Lah 460 at p. 464 (A), that:
'It appears to me that the definition of 'Cheating' in Section 415, Indian Penal Code requires modification in order to cover cases where one person is deceived and another person suffers, or is likely to suffer, damage or harm in body, mind, reputation or property. It has been revealed in a number of cases that serious deception has been practised on Government Officials as a result of which certain other persons have suffered a great deal of harm in reputation or property. As the definition of 'cheating' at present stands, such cases are not covered by Section 415, Indian Penal Code and the punishment prescribed in Sections 419 and 420 cannot be awarded to persons who practice deception on Government servants which results in damage and harm to third parties.'
8. I may here refer to the observations in --'Superintendent and Remembrancer of Legal Affairs v. Manmatha Bhushan' : AIR1924Cal495 :
'There remains the charge of cheating in the second form. In that form the offence does not necessarily involve fraud or dishonesty. The words of the definition are undoubtedly wide and if pushed to the full limit of their meaning might embrace acts which the man in the street would hardly regard as criminal offences. That observation, however, raises a question of the appropriate punishment in the particular case rather than of construction.
Clause 392 of Lord Macaulay's draft corresponds to the first part of Section 415. The second part would appear to have been added at some later date after the Code had left his hands & the hands of the Indian Law Commissioners. The illustrations throw no light on what is meant by dam age or harm in body, mind or reputation and so far as such damage is concerned the offence is not very appropriately placed in the Chapter of the Code relating to offences against property. An essential ingredient of the offence is the damage or harm caused or likely to be caused in the said respects or in property......
It does not appear to be necessary that the resulting damage or likelihood of damage should have been within the actual contemplation of the accused when the deceit was practised. But authorities in this Court lay down
(i) that the person deceived must have acted under the influence of the deceit: -- 'Ramanath v. King Emperor', 2 Cal LJ 524 (C) -- 'Milton v. Sherman' AIR 1919 Cal 1038 (D):
(ii) that the facts must establish damage or likelihood of damage: -- 'Baburam Rai v. Emperor', 32 Cal 775 (E) and
(iii) that the damage must not be too remote: -- 'Mojey v. Queen-Empress', 17 Cal 606 (F), 'Kishori Lal V. Emperor', 9 Cal WN 754 (G), -- 'Mahadev v. Dhonraj', 12 Cal WN 750 (H).'
9. The observations of Tek Chand J. in --'Rattan Singh v. Emperor', AIR 1934 Lah 833 (I), are as follows:
'In order to bring a case within the second part of Section 415, damage or harm caused, or likely to be caused, must be the necessary consequence of the acts done by reason of the deceit practised or must be likely to follow therefrom, and the law does not take into account remote possibilities that may How from the act. The damage or harm must be proximate and the natural result of the act or omission and does not include vague and contingent injury'.
10. On the whole the learned Magistrate erred in not issuing process for compelling the attendance of the witnesses of the accused. He was also wrong in thinking that a case is made out by the prosecution for conviction of the accused for an offence under Section 417, I.P.C.
11.This revision petition is allowed. The conviction and sentence are set aside. The accused-petitioner stands acquitted of the offence under Section 417, I.P.C. Pine if levied shall be refunded The bail bonds stand cancelled.
12. Revision allowed.