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Mojey and ors. and Sabya Nashyo and ors. Vs. the Queen Empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal606
AppellantMojey and ors. and Sabya Nashyo and ors.
RespondentThe Queen Empress
Excerpt:
cheating - cheating by personation--penal code (act xlv of 1860), sections 415, 419--registration of false divorce--bengal act of 1876. - .....divorces,' that he was one samir, and fraudulently caused the registrar to register a fictitious deed of divorce, whereby samir purported to divorce his wife. the other petitioners identified mojey to the registrar as samir when they well knew that he was not samir, and that the deed of divorce which he-registered was a fictitious document. the registrar was paid by the petitioners,, or one of them, one rupee for registering the deed.5. the question we have to decide is whether, upon these facts the convictions can be sustained. we are of opinion that they cannot. section 415, indian penal code, thus defines cheating- -' whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall.....
Judgment:

Norris and Macpherson, JJ.

1. In this case the appellant Mojey has been convicted by the Deputy Magistrate of Rungpore of an offence under Section 419, Indian Penal Code, and the appellants Yar Nashyo and Nejebullah of abetment of that offence.

2. The first petitioner was sentenced to rigorous imprisonment for two months, and the other two to rigorous imprisonment for a month and a half each. On appeal to the Sessions Judge the convictions and sentences were upheld.

3. We granted a rule to show cause why the convictions should not be set aside.

4. The facts of the case are as follows. The petitioner Mojey falsely pretended to a Registrar appointed under the provisions of Bengal Act I of 1876, 'an Act to provide for the voluntary registration of Mahomedan marriages and divorces,' that he was one Samir, and fraudulently caused the Registrar to register a fictitious deed of divorce, whereby Samir purported to divorce his wife. The other petitioners identified Mojey to the Registrar as Samir when they well knew that he was not Samir, and that the deed of divorce which he-registered was a fictitious document. The Registrar was paid by the petitioners,, or one of them, one rupee for registering the deed.

5. The question we have to decide is whether, upon these facts the convictions can be sustained. We are of opinion that they cannot. Section 415, Indian Penal Code, thus defines cheating- -' Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, is said to 'cheat.' And Section 416, Indian Penal Code, thus defines cheating by personation: 'A person is said to 'cheat by personation' if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.'

6. It is clear that the petitioners deceived the Registrar, and it is clear that they thereby intentionally induced him to register the fictitious deed of divorce -a thing which he would not have done unless he had seen so deceived.

7. Did this act of registering the fictitious deed cause, or was it likely to cause, damage or harm to the Registrar in body, mind, reputation, or property? We think not.

8. The Deputy Magistrate says: 'Remembering that these registrations are entirely optional with the parties, it is clear that the desire of the parties to get a marriage or divorce registered or not registered depends principally upon the estimation in which the public and the judicial Courts would hold such registration. If a belief gets ground amongst the people that false marriages and divorces can be registered as well as a true marriage or a divorce, I am certain nobody would consider it worth while to spend any money or take any trouble for such registrations. Now these registrations are actually a source of gain also to the Marriage Registrar. I believe therefore that such false registrations not only do harm the reputation of such a semi-private officer, but also go a great way towards the diminution of the Marriage Registrar's income.'

9. The Sessions Judge says: 'After careful consideration I am of opinion that harm was caused to him (the Registrar) both in mind and reputation by the false registration. Such registrations are voluntary, and it is easily seen that a Registar before whom a false divorce has been registered suffers not only in reputation, but also by losing his fees in future through people declining to avail themselves of his office.'

10. The arguments of the Deputy Magistrate and the Sessions Judge were adopted by Mr. Kilby, who urged nothing not contained in the passages quoted. We cannot agree with these arguments. We have to deal with the isolated acts of the petitioners, and to consider whether the registering of the fictitious deed, which was the act done by the Registrar in consequence of the deceit practised by the petitioners, 'caused or was likely to cause damage or harm to the Registrar in body, mind, reputation, or property.' We think that the 'damage or harm' must be the necessary consequence of the act done by reason of the deceit practised, or must be necessarily likely to follow therefrom. The possibilities contemplated in the argument are in our judgment too remote to be in contemplation of the statute. We therefore set aside the conviction of the petitioner Najabullah in this case and in the case No. 82, in which he has been convicted of a similar offence and sentenced to rigorous imprisonment for a month and a half.

11. With regard to the other petitioners, the terms of imprisonment have expired, and their pleader does not ask us to interfere with their convictions.

12. This judgment will govern motion No. 82.


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