A.R. Somnath Iyer, J.
1. In Crime No. 46 of 1958, the petitioner who was a police constable was accused of having committed an offence of theft. On August 13, 1958, the records relating to this offence which had to be handed over to the concerned Police Prosecutor, which are referred to by the learned Government Pleader as the Police Papers, were handed over to him. On September 10, 1958 when the Police Prosecutor who has been examined as P.W. 1 in this case was busy conducting a prosecution in the Court of a Magistrate and when the other inmates of the house of the Police Prosecutor had gone elsewhere, P.W. 2 the son of the Police Prosecutor who was at home, was approached by the Petitioner and persuaded to allow him to take those Police Papers from the place where they had been kept by the Police Prosecutor in his house. When P.W. 3 a Police constable went to the house of P.W. 1 in the evening, P.W. 1 narrated the incident. P.W. 1 later satisfied himself that the petitioner had not been authorised by any one to take those parts from his house and the evidence given by P.W. 1 is that he had not sent the petitioner to his house to get those papers from P.W. 2. On these facts, the petitioner was charged with having committed offences punishable Under Sections 420 and 451 of the Penal Code.
2. The Magistrate acquitted that petitioner of the offence punishable Under Section 451 but convicted1 him of an offence punishable Under Section 420, and sentenced him to three months' rigorous imprisonment and to pay a fine of Rs. 200/-.
3. The petitioner appealed from the conviction and sentence to the Court of Session, and that appeal was dismissed.
4. Mr. Mahajan, appearing on behalf of the. petitioner in this revision petition, urges that even on the facts as found by the courts below, it was. impossible for them to convict the petitioner of an offence punishable Under Section 420 of the Penal Code. Mr. Mahajan very properly did not question the finding of fact recorded by the Courts below that the petitioner induced P.W. 2 by practising deception on him to allow him to walk away with the papers relating to Crime No. 46 of 1958 from the house of P.W. 1. Indeed, if Mr. Mahajan had made any such attempt, he wouI3 have found great difficulty in persuading me to disturb the finding of fact recorded to that effect by the Courts below'.
5. But, as a legal argument has been advanced by Mr. Mahajan and that argument rests on' the concluding part of Section 415 of the Penal Code.
That Section reads:
415. Cheating 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 be' 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 fact is a deception within the meaning of this Section.
6. Mr. Mahajan does not dispute the fact that P.W. 2 was deceived ' He does not also dispute the fact that the evidence, if believed, establishes that P.W. 2 having been so deceived was dishonestly or fraudulently induced to deliver the police papers to the petitioner. But the argument presented by Mr. Mahajan is that these two ingredients do not by themselves constitute an offence of cheating. His submission was that unless the delivery of the police papers by P.W. 2 to the petitioner caused or was likely to cause damage or harm to P.W. 2 in body, mind, reputation or property, the offence of cheating had not been completed.
7. The argument, it is plain, rests on the words
and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property
occurring in the concluding part of Section 415.
8. It seems to me that this argument has to , fail. Section 415 consists of two parts. The first part refers to the offence of cheating committed by .fraudulently or dishonestly obtaining delivery of any property from the person deceived. That part also makes the act by which the deceived person is made to consent to the retention of such property, an offence of cheating. Then occurs the second part which provides that if a person intentionally induced the deceived person to do or to omit to do anything which he would not do or omit if he were not so deceived, and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, he cheats.
9. Now, the words
which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property
occurring in the second part of Section 415, have obviously no application to the first part of that section. Under the first part, the moment a person is deceived and by the practice of such deception a property is fraudulently or dishonestly obtained from him, or the deceived person, is induced to consent to the retention of that property by the person who obtained it, the offence of cheating is committed.
10. The words occurring in the second part of Section 415 have, it is obvious, reference only to the offence of cheating committed by Inducing the deceived person to do or to omit to do something which he would not do or omit to do if he were not so deceived.
11. In this case, it is clear that the finding of the Courts below was that the offence of cheating referred to in the first part of Section 415 had been committed. P.W. 2 having been deceived and having been fraudulently and dishonestly induced to deliver the police papers to the petitioner, the offence of cheating was thereby undoubtedly committed by the petitioner. It was not necessary for the prosecution to establish that as a result of such cheating, any damage or harm was caused or was likely to be caused to P.W. 2 in body, mind, reputation or property.
12. The petitioner was, therefore, rightly convicted of an offence of cheating.
13. Mr. Mahajan, however, contends that the sentence imposed on the petitioner is excessive.
14. I am surprised that Mr. Mahajan should think that a sentence of three months' rigorous imprisonment imposed on a police constable for an offence of cheating like the one committed by him for the purpose of obtaining possession of the records relating to an offence of theft of which he had been accused, is for any reason excessive. 1 am disposed to take the view that the sentence errs on the side of leniency.
15. This revision petition must therefore fail and is accordingly dismissed.