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K.R. Kumaran and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1961CriLJ98
AppellantK.R. Kumaran and ors.
RespondentState of Kerala
Excerpt:
.....like a corporation cannot be cheated; to the best of his the 1st accused's belief and knowledge gopalan nair had insured his life and obtained the policy, ext. 26. all the elements necessary for constituting the offence with which the accused stand convicted have been clearly made out. it seems to me obvious that, if a doctor certifies a dying man as a first class life, that act is likely to cause harm to his moral as well as to his professional reputation, for, if known, it certainly would; it can scarcely be that the failure to specify what precise sort of damage or harm the victims were likely to suffer stood in the way of the accused proving, if they could, that there was no such 'likelihood. 18 and 28 were induced to do was likely to cause them damage or harm in body, mind,..........an agent of the lakshmi insurance company and later, after lite insurance was nationalised, of the life insurance corporation doing business in the trichur area.in 1956 there was a man by the name of gopalan nair but called kochubala menon and hereinafter referred to as gopalan nair who was living in the 1st accused's dispensary as his dependant and was generally assisting the 1st accused. this man was in failing health and was not expected to live long in fact he died on 20-11-1956. the case as found by the learned sessions judge is that in the middle of 1956 and thereafter the three accused conspired to cheat the lakshmi insurance company and the life insurance corporation by insuring this dying man as a first class life so that, on his death, they could get the sum assured by the.....
Judgment:

P.T. Raman Nayar, J.

1. The three accused persons in S. C. 22 of 1959 on the file of the Court of Session, Trichur, appeal against their conviction for offences of conspiracy to cheat, cheating, and forgery. Criminal Appeal 348 of 1959 is the appeal by the 1st accused, Criminal Appeal 339 of 1959 that by the 2nd accused and Criminal Appeal 344 of 1959 that by the 3rd accused.

2. The 1st accused is a homoeopathic practitioner living in Trichur and running a dispensary at a place called Mannuthi about four miles from Trichur. The 2nd accused, it is said, was his compounder while the 3rd accused was an agent of the Lakshmi Insurance Company and later, after lite insurance was nationalised, of the Life Insurance Corporation doing business in the Trichur area.

In 1956 there was a man by the name of Gopalan Nair but called Kochubala Menon and hereinafter referred to as Gopalan Nair who was living in the 1st accused's dispensary as his dependant and was generally assisting the 1st accused. This man was in failing health and was not expected to live long in fact he died on 20-11-1956. The case as found by the learned Sessions Judge is that in the middle of 1956 and thereafter the three accused conspired to cheat the Lakshmi Insurance Company and the Life Insurance Corporation by insuring this dying man as a first class life so that, on his death, they could get the sum assured by the policy without having had to pay much more than the first premium. The charge is of conspiracy to cheat the officers of the Lakshmi Insurance Company and of the Life Insurance Corporation. This, I think, is as it should be, for, to be cheated just as much as to cheat, involves the exercise of mental faculties - the victim has to be deceived and thus induced to act - of which only a natural person is-capable. Strictly speaking therefore an artificial person like a corporation cannot be cheated; it is always the human person through whom it functions that is cheated; and, if he also is a party to the fraud, the offence would be criminal breach or trust and not cheating. But, for the present purposes; it would be correct enough to describe the Lakshmi Insurance Company and the Life Insurance Corporation as the victims.

In pursuance of this conspiracy a registered will - of which Ext. PI is a certified copy - was obtained from Gopalan Nair, who by this will left all his properties to the 1st accused. Six days later, on 22-6-1956, the proposal, Ext. P2, was got up for insuring the life of Gopalan Nair with the Lakshmi Insurance Company for a sum of Rs. 10,000/-.

This proposal, in the usual printed form, was filled in by the 2nd accused and the signature of the proposer, Gopalan Nair, was forged therein by the 1st accused, the signature being attested by the 2nd accused. The proposal was forwarded to the company through the agency of the 3rd accused who himself wrote down his name, address, and agent's number in Ext. P2 in the column provided for the purpose.

On 27-6-1956, the 3rd accused as agent of the Lakshmi Insurance Company took the 1st accused to Dr. Raman Menon an authorised medical examiner of the company who has been examined as P. W. 18 at the Government hospital to which he was attached and introduced the 1st accused to him as the proposer, Gopalan Nair. The doctor examined the 1st accused as requested by the 3rd accused and prepared the medical report, Ext. P24, filling in the personal statement therein on the basis of answers furnished by the 1st accused.

In this personal statement there is a declaration to be signed by the proposer and this was signed by the 1st accused as Gopalan Nair. The 1st accused signed also in the place intended for the specimen signature of the proposer, and both these signatures were affixed in the presence of P. W. 18. P. W. 18, as a result of his examination of the 1st accused, certified the proposer as a first class life and forwarded his medical report to the company which, in due course, issued the policy Ext. P61 in favour of Gopalan Nair,

On 8-12-1956, eighteen days after the death of Gopalan Nair, the 1st accused sent the letter, Ext. P44, to the Lakshmi Insurance Company reporting the death of Gopalan Nair and claiming the sum due under the policy as the legatee as also the nominee of Gopalan Nair. This he followed up with, the letter, Ext. P45 dated 12-12-1956, giving fuller particulars and enclosing the policy and other documents as required by the insurers by their reply dated 13-12-1956 to his first letter.

On 19-1-1956 life insurance was nationalised and on 1-9-1956 the newly formed Life Insurance Corporation took over the business of all the companies. The reply to Ext. P44 was by the Life Insurance Corporation and Ext. P45 was addressed to it. Being an early claim, the Life Insurance Corporation instituted enquiries, and the Delhi Special Police Establishment getting wind of the matter also commenced an investigation of their own. On 14-3-1957 the 1st accused sent the lawyer's notice Ext. P70 to the Life Insurance Corporation repeating his claim, but the claim was not paid,

3. On 10-11-1956 the 1st accused approached Pw. 25, a Field'Officer of the Life Insurance Corporation whom he knew for many years past they having worked together for some years in an answrance company and, introducing the 2nd accused to him, said that if the 2nd accused was appointed as an agent he would be in a position to get a big policy from a travelling businessman.

Accordingly Pw. 25 obtained the application. Ext. P52, from the 2nd accused and forwarded it the the Ernakulam branch of the Life Insurance On poration. It would appear from Ext. P 100 dated 13-11-1956, a copy which Pw. 25 received of a sent by the Life Insurance Corporation to the accused, that blank proposal and medical report ioemm were sent by the Corporation to the 2nd accused so that he might begin canvassing business even lie-fore his formal appointment as an agent.

Two or three days after receiving Ext WSBtL Pw. 25 met the 1st and 2nd accused together and the was told by the 1st accused in the presence of the 2nd accused that the medical examination of the proposer had been conducted by Dr. Ismail (Pw. 220 at Alwaye and that the proposer had taken the posal saying that he would deliver it himself at the office of the Life Insurance Corporation at kulam. The 1st accused also showed him a order receipt for having sent Rs. 20/- to She poration and asked him to prepare a draft for ment of the amount towards the first premium.

4. About a week before 19-11-1958, fee accused went to Pw. 28, Civil Surgeon, Government Hospital, Alwaye, at the hospital and introduced him-self as an insurance agent and said that he would the bringing cases to Pw. 28 for examination. Pm. SB had been an authorised medical examiner for over 15 years of seven or eight insurance companies he continued to examine cases for the Life Insurance Corporation on an oral assurance by the Secretary of its Ernakulam Office that he examine cases upto Rs. 30,000/- although he got the formal written authority only some time later.

On 19-11-1956, the 2nd accused took the 'M accused to him at the hospital and introducing him. as Gopalan Nair, said that he was a business may who wanted to get his life insured for a swm of Rs. 30,000/-. The 2nd accused had brought 2 blank medical report form, the personal statement in within he proceeded to fill up in Pw. 28's presence and the declaration appended to which the 1st accured signed as Gopalan Nair in Pw. 28's presence.

Pw. 28 then examined the 1st accused and fill-ed up the lest of the form and signed it overflying the proposer as a first class life. The completed form, Ext. P23, Pw. 28 forwarded to the Life Insurance Corporation, Ernakulam, but Gopalan Nair having died the following day, somewhat permanently' for their purposes, the accused did not prosecute the matter any further.

Pw. 25 who had sent the letter, Ext. P50. On 25-11-1956, to the Life Insurance Corporation, & Mr. kulam, informing them of the proposal flat Rs. 30,000/- and had received the reply Ext f5Hi to the effect that although the medical report that reached the Corporation the proposal and the agents report had not come, asked the 1st and 2 once or twice when he met them as to happened, but neither of them would give proper reply.

5. On these facts, which he regarded as prov-ed.the Learned Sessions Judge found all the three accused guilty under Section 120B read with Section 420 of the Indian Penal Code, For this offence he imposed no separate; sentence, apparently in view of the further conviction. and sentences which he recorded as Follows:

Conviction. Sentence.

1ST accused:

1. Under Section 419, I.P.C. for Rigorous impri. sonment for two years.

having cheated the doctor P. W. 18

by Impersonating Gopalan Nair and

inducing P. W. 18 to certify Gopalan

Nair as a first class life.

2. Under Section 419, I.P.C. for Rigorous Imprisonment for two years.

having cheated the doctor P. W. 28

in the same manner.

3. Under Section 467, I.P.C., Rigorous imprisonment for five years.

for having forged the signature

of Gopalan Nair in the proposal,

Ext. P. 2.

4. Under Section 468 I.P.C. for having Rigorous imprisonment for five years.

forged the sig. nature of Gopalan Nair

in the medical report, Ext. P. 23 made

by P. W. 28.

5. Under Section 468, I.P.C., for Rigorous imprisonment for five years.

having forged the signature of Gopalan

Nair In Ext. P. 24 the medical report

made by P. W. 28.

6. Under Section 420, I.P.C., for No separate sentence.

having cheated the Lakshmi Insurance

Company and obtained the policy, Ext.

P. 61.

2nd accused :

1. Under Section 419, with section Rigorous imprisonment for two years.

109,I.P.C., for having abetted the

cheating of the doctor, P. W. 28, by

the 1st accused.

2. Under Section 477, read with section Rigorous imprisonment for three years.

109, I.P.C. for having abetted the for.

gery In the proposal Ext. P, 2, by the

1st accused.

3. Under Section 420, read with section N o separate sentence.

109 for having abotted the cheating of

the Liafeshmi Insurance company by the

1st accused.

3rd accused:

1. Under Section 419 read Rigorous imprl. sonment for two years.

with Section 109, I.P.C.

for having abetted the cheating

of doctor P. W. 18 by the 1st

accused.

2. Under Section 467 read Rigorous Imprisonment for three years.

with Section 109, I.P.C.

Star having abetted the forgory

in Ext. P. 2 by the 1st accused.

3. Under Section 420 read No separate sentence.

with Section 109, I.P.C.,

for having abetted the cheating

of the Lakshmi Insucunce Company

by the 1st accused The learned Sessions

Judge directed further that the sentence

of imprisonment should run concurrently.

6. It might be useful to summarise what the accused had to say when questioned under Section 342 of the Criminal Procedure Code at the preliminary enquiry and at the trial; The 1st accused's case on both occasions was that Gopalan Nair was a healthy man and a man of means who was doing some business of his own in a portion of the 1st accused's dispensary building in Mannuthi. Gopalan Nair was a friend of the 1st accused, but by no means his dependant.

To the best of his the 1st accused's belief and knowledge Gopalan Nair had insured his life and obtained the policy, Ext. P61, and since he the 1st accused was the legatee under Gopalan Nair's will, Ext. P1, he naturally claimed the amount due on the policy. He the 1st accused knew nothing about Exts. P2, P23 and P24 or about the medical examination of Gopalan Nair.

The evidence of the doctors P. Ws. 18 and 28 that he appeared before them as Gopalan Nair and got himself examined, and that he signed Exs. P23 and P24 in their presence is false. The 2nd accused was not his compounded and although the 3rd accuesd might have visited his dispensary he did not know him as an agent of the Lakshmi Insurance Company. There was no conspiracy of any kind between him and the remaining two accused.

7. The 2nd accused said that he was not the compounder of the 1st accused and that Gopalan Nair was a fairly healthy man of independent means in a position to insure, and that at the instance of the 3rd accused he filled up the proposal form, Ext. P2, and attested it after Gopalan Nair had signed it in his presence. That was all he knew about the insurance effected by Gopalan Nair with the Lakshmi Insurance Company.

So far as the alleged examination of Gopalan Nair by Pw. 28 is concerned all he knows is that Pw. 25 went to him to Peechi where he was working as a labourer in the Soil Conservation Department and got him to fill up the personal statement in the medical report, Ext. P24, and also obtained from him the application Ext. P52 for an agency under the Life Insurance Corporation.

What Pw. 25 did with those documents he does not know; neither does he know who actually appeared before Pw. 28 for medical examination. The evidence that he took the 1st accused to Pw. 28 at Alwaye on 19-11-1956 and introduced him as Gopalan Nair is false. In fact on the whole of that day he was working in the Soil Conservation Scheme at Peechi fifty miles from Alwaye.

8. The 3rd accused admitted that the proposal, Ext. P2, in pursuance of which the policy, Ext. P61, was issued was made through his agency and that, in fact, the agent's name and address at the bottom of Ext. P2 as also the word, 'Thirty' written in column 14 thereof, were written by him. The proposer Gopalan Nair had been introduced to him, but about his physical condition or financial position he knew nothing.

He had taken the proposer to the doctor, Pw, 18, for medical examination, but on that day the doctor was not available, and he gave instructions to the 2nd accused to get the medical examination completed. He did not take the 1st accused or anybody else to Pw. 18 for medical examination and knew nothing about Ext. P24. As to who actually appeared before Pw. 18, and how Ext. P24 came to be completed and the policy issued he chose to say nothing.

With regard to the entry in Ext. P24 to the effect that the proposer had been introduced to the doctor, Pw. 18, by T. K. Kesavan, he said that he always wrote his name as Thoppil K. Kesavan, although it is true that he was sometimes addressed by others including the Life Insurance Corporation as T. K. Kesavan. Because his name had been entered as the agent in Ext. P24, P. W. 18, for tear that the matter may recoil on him, had made him the 3rd accused a scapegoat and had falsely implicated him. After discussing the evidence in paras 9-25, the judgment proceeded:

26. All the elements necessary for constituting the offence with which the accused stand convicted have been clearly made out.

27. It is argued that Ext. P2 is not a valuable security and that the conviction under Section 467 I.P.C. in respect of the forgery of that document is wrong. But Ext. P2 is not a mere proposal for insurance. Clause (a) of the declaration thereunder signed by the proposer stipulates that, in the event of the proposal being accepted by the Company and the proposer failing to take up the policy he shall pay to the Company the initial expenses incurred by it in connection with the proposal. This is sufficient to make Ext. P2 a valuable security as defined by Section 30 of the) Indian Penal Code.

28. It is next argued that there could have been no cheating of the doctors Pws. 18 and 28 since the necessary element of the act or omission induced by the deception Causing, or being likely to cause, damage or harm to them in body, mind, reputation or property, is lacking. It is pointed out in support of this argument that while neither witness said that he in fact suffered any such damage or harm, both affirmed that they had no apprehension that they would be in trouble, Pw. 18, in fact going further and saying that he suffered no loss of reputation.

But it is not necessary that the act or omission should actually have caused damage or harm of the kind mentioned in Section 415 I.P.C. It is sufficient if it is likely to cause such damage or harm. It seems to me obvious that, if a doctor certifies a dying man as a first class life, that act is likely to cause harm to his moral as well as to his professional reputation, for, if known, it certainly would; and to prove this mere likelihood, as distinguished from actual damage or harm, no evidence is required.

It is something which the court will presume having regard to the common course of natural events and human conduct. There is thus the likelihood of harm or damage as contemplated by the section to the very persons deceived and the difficulty felt in Mahomed Baksh v. Emperor AIR 1941 Lab 460 and Seetharama Rao v. Government of Mysore AIR 1954 Mys 9 a difficulty which despite the suggestion made in the former decision the legislature has done nothing to resolve - does not exist.

29. The decisions in Mojev v. Queen Empress ILR 17 Cal 606; King Emperor v. Srinivasan ILR 25 Mad 726, In re Manikam Pillai, 19 Mad LJ 271; Supdt. & Rembr., Legal Affairs v. M. B. Chatterjee AIR 1924 Cal 495; Harendra Nath v. Jotish Chandra AIR 1925 Cal 100; AIR 1941 Lah 460 and In Krishnan AIR 1948 Mad 268 have been cited in an attempt to show that the possibility of the doctors Pws. 18 and 28 suffering damage or harm in reputation as a consequence of their certifying a dying man as a first class life is too remote for it to be said that by that act they were likely to suffer such damage or harm. It is enough to say that the facts in all those cases are very different. Some of them indeed seem to me extreme cases, but in none of them was the probability of damage or harm to the victim of the deception anywhere near so high or so proximate as in the present case.

30. It is contended that the charge respect of the cheating of Pws. 18 and 28 is defective in that it did not specify how exactly the deception was caused, or was likely to cause, damage or harm to Pws. 18 and 28, whether it was in body, mind, reputation or property. This it is said is fa violation of Section 223 of the Criminal Procedure Coda which, read along with the illustration (b) there-under, requires that when a person is accused off cheating, the charge must set out the manner in which he did the cheating.

With great respect to the view taken in Gian Singh v. Emperor AIR 1938 Lah 828, I do not think it would be right to say that the particular description of the damage or harm which the deceived person suffered or was likely to suffer, can be to be part of the manner in which the deceivermitted the offence of cheating. The manner in which a person commits an offence can relate only to that person's acts and his mental attitude. I do not think it can include the effect or the probable effects of the acts on the victim.

This apart, even if there be a defect in the charge, it is a defect which is scarcely material and for which Sections 225 and 537(b) of the Criminal Procedure Code are sufficient cure. For, it is difficult to understand in what way the accused could have been prejudiced in their defence by the omission. It can scarcely be that the failure to specify what precise sort of damage or harm the victims were likely to suffer stood in the way of the accused proving, if they could, that there was no such '-likelihood.

Supposing the charge had said, copying the language of Section 415, that the act which Pws. 18 and 28 were induced to do was likely to cause them damage or harm in body, mind, reputation or property, that would have been a perfectly good charge but would have given the accused notice of nothing more than of what the charge actually framed gave.

31. The convictions recorded against all the three accused are correct, and the sentences awarded to them are proper.

32. I dismiss the appeals.

33. The accused who are on bail will be committed to prison to serve their sentences.


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