1. The applicant has been convicted by the Chief Presidency Magistrate under Section 420 of the Indian Penal Code of cheating Dr. Pearse and obtaining a subscription of Rs. 10 from him towards the funds of the Harinam-pradayini Sabha, the object of which was to feed the poor on the occasion of the opening of the new Municipal offices.
2. He obtained this rule calling on the Chief Presidency Magistrate to shew cause why the conviction and sentence should not be set aside on the ground that the facts found do not constitute the offence of cheating.
3. The first question we have to consider with reference to the definition of cheating in Section 415, Indian Penal Code, is whether the applicant deceived Dr. Pearse.
4. Dr. Pearse and two other witnesses have deposed that the applicant distinctly informed them that he was employed in the Municipal office, and this statement is admittedly untrue. It was contended that because of that false statement Dr. Pearse gave this subscription.
5. It is argued on behalf of the applicant that that statement though false was not the matter which really deceived Dr. Poarse. The subscription book was produced and shown to Dr. Pearse; there are names of highly respectable persons in the book, and the book itself shows that the object was a charitable one. Dr. Poarse wrote his own subscription in the book.
6. It seems to us that it can hardly be said that the false statement was really the determining factor in inducing Dr. Pearse to give the subscription. He was probably equally induced, if not more so, by the names in the book and the object; and if those considerations had not influenced him, I am not satisfied that ho would have been won over by the statement that the applicant was employed in the Municipality. For these reasons I do not feel satisfied that the applicant deceived Dr. Pearse within the meaning of Section 415 of the Penal Code.
7. Further, if it be taken that there was such deception, I doubt whether the case comes within the other part of that section. It is undisputed that there was no fraud in this case; and whether the applicant's motive was dishonest or not, would depend upon whether there was 'wrongful gain' or 'wrongful loss.' The object in this case was a. charitable one, and I do not think, considering the words 'wrongful gain' and 'wrongful loss' in an ordinary reasonable sense, that the subscription given can be said to have constituted wrongful gain to the society or wrongful loss to Dr. Pearse.
8. Dealing next with the second part of the section, and taking it that Dr. Pearse was induced to do what he would not have done if he had not been deceived, I do not think that what he did can be said, in the ordinary sense, to have caused him any damage or harm in body, mind, reputation or property.
9. Accordingly, as my learned brother agrees in the result, we make the rule absolute and set aside the conviction and sentence.
10. I agree with my learned brother that the conviction and sentence should be set aside. It does not appear to me that Dr. Pearse was induced to subscribe Rs. 10 to a charity, which seems to be a well known and deserving one, by the alleged misrepresentation of the accused that he was a person employed in the Accounts Department of the Municipality. It is not likely that Dr. Pearse would be led to subscribe on that ground. Probably the only effect of the statement of the accused on his mind was to satisfy him that the accused was a person authorized to collect on behalf of this charity. 'We now know that that is the case and that the money has been made over to the charity. As regards the alleged 'wrongful loss,' the money has gone where Dr. Pearse intended it should go, unless it is to be assumed, which I do not, that the charity was not to have the benefit of the money in the event of the accused not being employed in the Calcutta Municipality.