George Knox J.
1. Hanuman Kalwar and Brijmohan Kalwar have been found guilty under Section 420 of the Indian Penal Code. They have appealed to this Court and their case was represented by a learned Counsel. The story for the prosecution is that these two men went together to Nur Muhammad in the month of Phagun of last year. They took two nose-rings and said that these ornaments were of gold and wanted to pawn them to him. Nur Muhammad says that he took the ornaments and gave them Rs. 100 and a bargain was struck between Nur Muhammad and the accused that they should pay Rs. 2 per mensem as interest for the time when the nose-rings were lying with Nur Muhammad as security for Rs. 100. Within a week Nur Muhammad says the accused brought another nose ring and offered to pawn it as a gold ornament for Rs. 50. They offered to redeem in a month and the sum was paid to them. Nur Muhammad's suspicions were aroused. He had this ornament tested by a professional Sonar. The Sonar said it was gold, but Nur Muhammed insisted on the ring being cut and it was found that there was silver inside overlaid with a plate of gold. There is another complaint by Beni Madho, who says that about the same time the accused went to him and said that he should advance them money on the security of a chain. They wanted Rs. 110. He first refused but afterwards took the chain and gave them the money. Five or six days after they brought ear- rings and asked him to pawn them and said that they would redeem all the articles together. He took the articles and advanced the loan. On their being tested he found that these ornaments were silver inside and the silver was gold faced.
2. There is no evidence on the record, and none has been pointed out to me, as to what was the value of these respective ornaments, but a still more serious mistake has been made. Among the most necessary ingredients of the offence under Section 420 of the Indian Penal Code if, first, cheating, and secondly, that the person cheated is dishonestly induced to do something which he would not have done unless he had been so deceived; further it must be proved that the act done was likely to cause damage to that person in property. It may be said that the damage must be presumed to be the necessary consequence. I am not prepared to allow that. The damage must be proved by evidence as much as any other part of the offence and there must be evidence showing that some act or some word passed which so acted on the mind of the person cheated that he was induced to do something which he would not have done, had he not been so deceived. In the present case all that we have is that two persons came and Said that the ornaments, they produced, were gold. It is unlikely in the first place that both the persons would have said that the ornaments were gold. It may have been so. But when an individual is found guilty, there should be evidence which would bring forth to each of them that he did an act or uttered words which acted upon the mind of the person deceived. This was a pawn transaction. It was not a sale or a transfer and when a man takes articles on pawn, it is a fair inference that he in some way tests the articles before passing his money upon the security of those articles. Something of the kind was done. We have the evidence of Mahabir, who was a goldsmith and who said that when he rubbed the nose-ring on his touchstone, he thought it was gold of good quality. Even now he tells us that he cannot give us the exact value of it, unless he melts the whole thing and separates the silver and gold. What evidence is there then that the two nose-rings were not in value equal to Rs. 1000 Looking at the evidence as a whole a suspicion arises in my mind that I have not before me a case of cheating but an attempt to get rid of suspicious property which is dangerous to hold and which Hanuman and Brijmohan, however they came by them, considered it well to get rid of as soon as possible. This was to a certain extent supported by their mysterious action in leaving the property at the thana and their anxiety not to take it back. But what I have to decide is whether an offence of cheating has been established against these two men. I must give them the benefit of doubt. I hold that the offence of cheating is not proved against them.
3. I allow the appeal, set aside the conviction and direct that the accused be released.