Norris and Beverley, JJ.
1. This was a reference by the Chief Presidency Magistrate under the provisions of Section 432 of the Code of Criminal Procedure.
2. The facts found by the learned Magistrate are as follows:
3. The accused, a private student, was desirous of being admitted as a candidate at the Entrance Examination of the University of Calcutta to be held in Calcutta in February 1892.
4. The Regulations of the University require that every candidate for admission to the Entrance Examination shall send, either to the Registrar of the University, or to a local officer recognized by the Syndicate, an application with a certificate in the following form:
5. (The form is that given above in Exhibit B.)
6. On the 23rd December 1891 the, accused sent by post to the Registrar a letter, of which the following is a copy. (Set out above, Exhibit A.)
7. Enclosed in this letter was an application and certificate in the prescribed form.
8. The application was signed by the accused; and the certificate purported to be signed by 'Saranath Chatterjee,' who was described as 'Head Master, Pabna Government High English School.'
9. At the time he sent the certificate the accused knew or had reason to believe, as the fact was, that the signature 'Saranath Chatterjee' was not the signature of the person whose signature it purported to be.
10. On receipt of this letter and the enclosures the Registrar forwarded to the accused a receipt for the money-order for Rs. 10, and an 'authority' to present himself at the Entrance Examination.
11. At the time he sent the receipt and authority the Registrar knew that the signature 'Saranath Chatterjee' was not the signature of the person whose signature it purported to be.
12. The accused actually presented himself at the examination and was permitted by the Registrar 'to commence the examination;' but what he actually did towards 'commencing the examination' the learned Magistrate does not state.
13. The accused was subsequently charged before the Chief Presidency Magistrate with dishonestly using as genuine a forged document, to wit, the certificate purporting to be signed by Saranath Chatterjee, the Head Master of the Pabna Government High English School (Section 471, Indian Penal Code) and with attempting to cheat (ss. 415 and 511, Indian Penal Code.)
14. The learned Magistrate asks for our opinion as to whether on these facts the accused is guilty on either of the above charges, or of any other offence under the Indian Penal Code.
15. The learned Counsel for the prosecution did not suggest that any charge other than those mentioned could be sustained, and we so far agree with him. It remains, therefore, only to consider whether, upon the facts stated, the accused is guilty of either or both of those charges.
16. To support a charge under Section 471, Indian Penal Code, the prosecution must prove (i) that the document in respect of which the charge is made is forged; (ii) that the accused used the document; (iii) that at the time he used it he knew, or had reason to believe, that it was forged; (iv) that at the time he used it, with such knowledge or belief, he did so fraudulently or dishonestly.
'Fraudulently' in defined by Section 25, Indian Penal Code, to be the doing of a thing with intent to defraud, but not otherwise.
Dishonestly 'is defined by Section 24, Indian Penal Code, to be' the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person.
'Wrongful gain' is defined by Section 23, Indian Penal Code, to be 'the gain by unlawful means of property to which the person gaining is not legally entitled,' and 'wrongful loss' is defined by the same section to be 'the loss by unlawful moans of property to which the person losing it is legally entitled.
17. In construing Sections 24 and 25, Indian Penal Code, we are of opinion that the primary, and not the more remote intention of the accused must be looked at.--See the observations of Edge, C.J. in Queen-Empress v. Girdhari Lal I.L.R. 8 All. 653.
18. Now, what was the primary intention of the accused? Clearly this. By falsely inducing the Registrar to believe that the certificate was signed by the Head Master of a Government school under public management to be permitted to sit for The Entrance Examination.
19. Now, this primary intention of the accused was not, we think, fraudulent or dishonest within the meaning of Sections 25 and 24, Indian Penal Code.
20. The learned Magistrate does not state the nature of the 'authority' forwarded to the accused by the Registrar, nor does he say that the accused know that such 'authority' was necessary.
21. But if the 'authority' consisted of some printed or written paper separate and distinct from the receipt, or of a metal token, or if it was contained in some words printed or written above or below, or on the back of the receipt, the accused's primary intention was not to obtain this authority.
22. If he had any intention at all about it, it was an intention to use it as a means of carrying out his main and primary intention.
23. The point is not devoid of authority.
24. In Jan Mahomed v. Queen Empress I.L.R. 10 Cal. 584 the facts were these:The appellants, in order to obtain from the Settlement Officer a recognition of their right to the title of 'Loskur,' filed before that officer a sunnud purporting to be a grant of that title to their father by the Rajah of Cachar. They were convicted under Section 471, Indian Penal Code. On appeal the convictions were quashed. In delivering the judgment of the Court, Mitter, J. said: 'Further, on accepting all the facts as correctly found by the Sessions Judge, I do not think that the appellants are guilty of any offence under the Penal Code. The facts are simply these: The appellants, in order to get a recognition from a Settlement Officer that they are entitled to the title of 'Loskur,' produced a sunnud purporting to have been granted by the Rajah of Cachar. The document is found not to be genuine. The question is, supposing the appellants used this document, knowing it to be not genuine, with intent to obtain recognition of their alleged 'Loskur' title from the Settlement Officer, is it an offence under Section 471 of the Indian Penal Code or under any other penal law of the country? The Sessions Judge found the appellants guilty under Section 471 of the Indian Penal Code. In using this document, if they had no fraudulent or dishonest intention, they cannot be guilty under Section 471 of the Indian Penal Code.
Section 24 of the Code defines the word 'dishonestly.' It is to the following effect: 'Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly',' Now the intention of the appellants was not to cause wrongful gain or wrongful loss to any person.
The word 'fraudulently' is thus defined in Section 25 of the Code: A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud, but not otherwise.'
In this case evidently the intention of the appellants was to produce a false belief in the mind of the Settlement Officer that they are entitled to the dignity of 'Loskur,' and in order to produce this belief they produced the sunnud 'A,' which has been found to be not genuine. Without defining precisely what would constitute 'an intent to defraud,' we are clear that it cannot be held in this case that the appellants produced the sunnud to 'defraud' the Settlement Officer, and therefore it cannot be said that they used the document 'fraudulently,' as defined in Section 25 of the Indian Penal Code. We are therefore unable to agree with the Sessions Judge that the appellants are guilty under Section 471 of the Indian Penal Code. Nor does the act of the appellants in our opinion amount to any other offence. We therefore set aside the conviction and acquit the appellants.
25. In Queen-Empress v. Munsab Ali Khan Cr. Ref. No. 19 of 1891 (unreported) a reference from the Sessions Judge of Patna under Section 307, Code of Criminal Procedure, decided by this Bench on the 22nd December last, the facts were these. The accused was desirous of entering the Temple Medical School at Patna, which under the rules of the Institution he could not do unless he satisfied the Principal that he had a good knowledge of the English language. With a view of showing that be possessed such knowledge he presented to the Principal a certificate purporting to be signed (but which as a matter of fact he knew was not signed) by the Head Master of the Chapra Academy, which stated that he (the accused) had a good knowledge of the English language. We held that the accused could not be convicted under Section 471, Indian Penal Code, as there was no dishonest or fraudulent intent.
26. We are therefore of opinion that, upon the facts stated, the accused was not guilty of an offence under Section 471, Indian Penal Code, inasmuch as his use of the forged document, with the knowledge or belief that it was forged, was not fraudulent or dishonest.
27. The foregoing observations are equally applicable to the charge of attempting to cheat.
28. The essence of the offence of cheating is a fraudulent or dishonest intention; and the act done towards the commission of the offence, which is requisite to establish the attempt to cheat, must be done with a fraudulent or dishonest intent. For the reasons given above we are of opinion that the facts of the case do not disclose any such intent on the accused's part.