1. In this case, the accused was convicted, by the Sub-Divisional Magistrate of Mannargudi, under Sections 420 and 507, Indian Penal Code and sentenced to rigorous imprisonment for two years. On appeal, the Sessions Judge of West Tanjore came to the same findings of fact, but altered the conviction to one under Sections 385 and 508, Indian Penal Code, holding that Sections 420 and 507, Indian Penal Code, were not the proper sections, applicable on the facts; he also reduced the sentence to 21 months' rigorous imprisonment. In revision it is argued that on the facts found, no offence has been committed, by the accused, under Sections 385 and 508, Indian Penal Code, as all the necessary ingredients of those offences are not made out; and that in any event the Sessions Judge was wrong in convicting the accused under these sections, as he had not been charged under thorn and that the proper order if any would have been one for a re-trial.
2. The facts found are that the accused sent two anonymous letters, Exs. A and B by post, to one Abdul Jaffer, a well-to-do Mahomedan of Koothanallar, son of one Natharkanni Rowther, recently deceased, purporting to come from the deity at Nagoro (Nagore Andavar), directing him to pay certain sums of money, to a person, specified in the letters, whom he was to seek out and threatening him with ruin and death from divine displeasure, if he failed to do so. As reference was made to the recent death of his father, Natharkanni, as having resulted from disobeying such warnings, Abdul Jaffer was frightened and he and his brother-in-law, P.W. 2, went to the place named, with Rs. 300 and there met the accused. On that occasion, for some reason or other, the accused denied that he was the person they, were in search of and ridiculed their taking the anonymous letters seriously. Seeing that Abdul Jaffer went away and did nothing more thereafter, the accused went to Koothanallur and pretended that he had two letters, Exs. C and D, from the God at Nagore, wherein he was commanded to go to Jaffer and explain the serious situation to him and to receive Rs. 300 from him. He also showed them the identification mark, mentioned in Ex. B, a big mole on his left arm, to convince Jaffer that he was the man referred to Jaffer was anxious to pay, but his brother-in-law, P.W. 2, dissuaded him from doing so that day; and the accused was not paid then and he went away. Very shortly after, Jaffer, received another letter, Ex. E, found by the lower Courts to have been sent by the accused, saying that that was the last communication that he would receive and that dire consequences would follow without further warning. It was signed 'Andavan' and purported to come from God himself. On receiving this letter, Jaffer got alarmed and sent for the accused; in the meanwhile, his brother-in-law had informed the police of what had happened. The accused came to Jaffer's house and discussed the matter with him and two others and agreed to receive three currency notes of Rs. 100 each, if offered on a silver plate, with sugar and fruits. On the offer being so made, the accused took the notes and put the bundle under his arm-pit and was leaving the house, when he was arrested by the Police. Jaffer seems to have been satisfied with the transaction, as he thought he had thereby averted the threatened danger to him and his family.
3. It is on the above facts that we have to decide what offence the accused had committed. One of the sections under which the accused was convicted, by the first Court is Section 507, Indian Penal Code. It is a kind of criminal intimidation. The offence of, criminal intimidation is defined in Section 503, Indian Penal Code. The Sessions Judge was of opinion that the injury mentioned in it must be an injury to be inflicted by some act of the offender and that as here the threat was in the nature of an intimation of divine displeasure, the offence did not fall under criminal intimidation. It seems to me the view that Section 507 does not apply here is correct. The threat made in this case may be shortly stated to be this : 'if you don't pay me the money demanded from you, God is going to punish you and your family with ruin and death.' There is here no doubt a threat that an injury will happen to the person threatened, but the words of Section 503, Indian Penal Code, which defines criminal intimidation seem to imply that the threat must be one, which can be put into execution by the person threatening, as the section speaks of avoiding the execution of the threat. I do not think it is necessary, as the Sessions Judge seems to think, that the injury should be one to be inflicted by the offender; it is sufficient, if he can cause it to be inflicted by another and the infliction of it could be avoided by soma act or omission that the person threatening desires. In the present cases the punishment by God is not one, the accused could cause to be inflicted, or the execution of which he could avoid. I therefore agree with the learned Sessions Judge that the accused's offence does not amount to criminal intimidation and therefore does not fall under Section 507, Indian Penal Code.
4. I am also of opinion, differing from the Sessions Judge, on this point, that it cannot be brought under Section 508, Indian Penal Code either. It is a very special section and its words must be carefully scrutinised. As pointed out by the learned Vakil for the accused, the section requires that by some act of the offender the person warned must be led to believe that he will become, or will be rendered an object of divine displeasure. I was first inclined to think that the words 'by some act of the offender' were to be read only with the words 'will be rendered' immediately-preceding them and not with the words 'will become'; but on further consideration, I am satisfied that if; is not a right view. The former words should be read with both expressions 'will become' and 'will be rendered,' as otherwise it will unduly enlarge the scope of the section, as pointed out by Mr. Mayne in his commentary on the section. That some future net, on the part of the offender, is necessary to make the section apply is the view taken in The Queen v. Vidya Sankara (1883) 6 Mad. 381; the observations of Turner, C.J., on page 394, are particularly clear on the point. Following that ruling, I must hold that the offence under Section 508, Indian Penal Code, is not made out here; for, it is not the case that the accused was going to do something in the future, to bring divine displeasure on Jaffer.
5. Section 385 also does not seem to apply for the illustrations to Section 383, which defines extortion, show that the injury contemplated must be one which the accused can himself inflict or cause to be inflicted. The threat that God will punish a man, for some act or omission of his, is not such an injury as the section refers to.
6. Section 420, Indian Penal Code, would in my opinion have applied, but for the fact that the Sessions Judge finds that Jaffer was not actually deceived. This finding is open to doubt; but in revision, I must accept it; it does not however exclude the possibility of considering the accused's offence, as an attempt to cheat, under Sections 420 and 511, Indian Penal Code. The accused was not charged under these sections read together, but only under Section 420, Indian Penal Code, by itself; but the new amendment of Section 238, Criminal Procedure Code, Clause 2A, allows an accused person charged with a substantial offence, to be convicted of an attempt to commit that offence, without a separate charge and trial. There can be no doubt, on the facts found, in the case, that the accused attempted to deceive Jaffer, by making him believe that the God at Nagore had ordered him to pay money to the accused and thereby to dishonestly induce Jaffer to pay him Rs. 300. Although on the Sessions Judge's finding that Jaffer was not actually deceived, the offence of cheating is not made out, it is clear that the attempt to cheat Jaffer, on the part of the accused, was complete. The accused is therefore liable to be convicted under Sections 420 and 511, Indian Penal Code.
7. It is however argued that it is not open to me in revision to convict the accused as above stated, as he was acquitted of the offence under Section 420, Indian Penal Code, by the Sessions Judge and reliance is placed on Clause 4, Section 439, Criminal Procedure Code. It was suggested that I should send the case down to the Sessions Judge and direct him to convict. That seems to be a useless prolongation of the case; but if the law requires it, it must be done. In this case, however, the Sessions Judge has not considered, whether the accused is guilty or not, of an attempt to cheat and has not recorded any finding of acquittal, on such a charge. The prohibition under Clause 4, Section 439, does not therefore apply in this case. The case is one, in which it was difficult to say, what the offence committed by the accused, was, on the facts proved. In such a case it is doubtful whether the alteration of one section into another can be said to be a case of acquittal, under the former section, within the meaning of Clause 4. It is not however necessary to decide that point in this case for the Sessions Judge has not acquitted the accused of the offence of attempting to cheat. I therefore hold that it is open to this Court to convert the conviction of the accused to one under Sections 420 and 511, Indian Penal Code and I convict accordingly. The sentence of 21 months' rigorous imprisonment seems to me to be unduly severe. I reduce it to 6 months' rigorous imprisonment.