K. Ahmad, C.J.
1. The petitioner who is a young man of 27 hag been convicted under Section 420 I.P.C. and sentenced to undergo R. I. for a months. The allegation against him is that on 20-1 1964 at about 11 p. m. he gave a telephones call to P. W 1, the manager of the N. C. D. C. Colliery and made a representation that he was deputed by the Rani Saheba of Talcher to make a request to him for helping her with some transport as her vehicle on the way to Meramundali had a break and she was stranded. It appears that Rani Saheba of Talcher was known to P. W. 1 from before and in the course of conversation P. W. 1 was made to believe that the petitioner required the transport for the Rani Saheba, and that Rani Saheba was in fact stranded on the road.
Accordingly, P. W- 1 directed P. W. 4 Samanta, an employee of the concern to take a jeep to the place suggested by the petitioner. But when P. W. 4 reached the place with the jeep he was directed, by the petitioner to take him first to Sadasivpur and thereafter to Similia which he did; and ultimately after giving service to him returned to the Colliery, with the jeep but at no stage he ever saw or met Rani Saheba. In all as it appears from the log book, the jeep covered a distance of about 80 miles while in the service of the petitioner.
Accordingly a few days thereafter P. W. l communicated the matter to Raja Saheb that the jeep was sent to Rani Saheba as required by her. The Raja Saheb who has been examined in this case as P, W. 10 on enquiry, informed P. W. 1 that no such requisition was ever made by Rani Saheba and that on 20.1.1961 Rani Saheba had never gone oat to any place. In the meantime a bill for a sum of Rs. 78.74 p was sent to Raja Saheb for the costs incurred over the transport sent on 20.1.1964 at the request of the petitioner over phone. This was on 5.2. 1964. It seems that in view of the information already conveyed by Raja Saheb to P. W. 1 to the payment was not made ; and that led to the information to police on 9,2,1964 resulting in the trial and conviction of the petitioner as stated above.
2. The evidence on record firmly proves that P. W. 4 who acted as the driver of the jeep was an employee of the N. C. D. 0. Colliery and worked under P. W. 1 who was the manager of that concern. It is also not disputed that all along during the drive, when the jeep was in the service of the petitioner it was this P. W. 4 who drove it and it was never given in his possession. It may be that it was he at whose direction the jeep was driven from place to place, but that fact by itself can be no evidence of the fact that in the course of that movement there had been any delivery of the jeep to him. The word 'delivery' as used in Section 420, I.P.C. conveys the import and implication of the change of hands of the property or its transfer from one person to the other either directly or indirectly. In this case there is no evidence that at any point of time the jeep was delivered by P. W. 4 to the petitioner. The mere movement of the jeep in his service from one place to another while it was being driven by P. W. 4 even if done at the instance of the petitioner cannot amount in law or in fact to the delivery of the jeep to him. In that view of the matter it cannot be held that the petitioner cheated P. W. l and thereby dishonestly induced him to deliver the jeep to him.
It is true that what the section requires is that the delivery may be to any person and not necessarily to the person who causes deception ; but the delivery got effected by him must be for the gain of the person who commits deception ; and in any case the word 'person' as used in this context cannot mean the man who is the target of deception or anybody else, who on delivery holds it on his behalf. In the present case there is no material to suggest that the delivery of the jeep by P. W. 1 to P. W. 4 was the result of any deception practised by the petitioner. What the petitioner gained as a result of the deception practised by him was the advantage of getting the use of the jeep for his service and not the delivery of the jeep to any employee of P. W. 1 for the purpose of driving it.
In my opinion therefore in the absence of evidence to the effect that as a result of deception P. W. 1 delivered the jeep to the petitioner, his conviction under Section 420, Indian Penal Code, cannot be sustained in law. The learned Standing Counsel however has contended that even so the petitioner cannot escape the liability at least under Section 417, Indian Penal Code. Section 417 provides punishment for cheating which is defined in Section 415, Indian Penal Code. This Section 415 refers not only to the act of delivery but also other acts which the person deceived may be induced to do or omit to do. In the present case this much is fully proved that it was as a result of deception practised by the petitioner on P. W. 1 that P. W. 1 sent the jeep to him, other-wise he would not have sent it at all. To that extent therefore the deception played by the petitioner on P. W. 1 did succeed.
It is true that in the charge framed in the trial there is no mention of the fact that this act of sending the jeep to the petitioner which was caused as a result of the deception played by him on P. W. l caused any specific harm or damage to him in body, mind, reputation or property. But that can be easily inferred from the facts found in this case. The jeep, as it is disclosed by the evidence, was the property of N. C. D. C. Colliery at Talcher and P. W. 1 was only in overall control of it as its manager. In the ordinary course the jeep owned by the concern must be for the use of the colliery alone. Therefore unless deception as claimed in this case had succeeded to give an impression to P. W. l that the Rani Saheba needed it in that moment of helplessness he would not have sent the jeep for her use and if he did it, for the reason of deception practised on him that necessarily reflects on his reputation as a Manager of the concern. Therefore to this extent the sub-mission made by the learned Standing Counsel is correct that if not under Section 420 at least under Section 417 the petitioner is liable for what he did as concurrently found by the two Courts below. In that view of the matter therefore the conviction imposed on the petitioner under B. 420, Indian Penal Code, is converted to one under Section 417, Indian Penal Code.
As for sentence, the case, I think deserves some consideration. The petitioner is a young man of 27 years as already stated and there is no evidence on record that he has ever before did this kind of thing. Therefore a lenient view of the matter is taken and the petitioner is sentenced under Section 417, Indian Penal Code, to pay a fine of Rs. 200/. in default, R. I. for a period of one month. Accordingly, the application is dismissed, subject to the modification in conviction and sentence as stated.