1. The charge framed in this case runs in these words;
That you on or about the 19th September 1923 in Calcutta deceived Mr. B.J. Pithia of Birla Jute . by inducing him to accept a Bought Note signed by your firm as brokers on behalf of Santoke Chand Manik Chand who, you represented, were respectable firm of jute dealers carrying on business at 65, Noormull Lohia Lane, Calcutta knowing that such representation was false, and further by inducing the said Mr. B.J. Pithia by means of such representations to give a receipt for the said Bought Note, and you thereby committed an offence punishable under Section 420, Indian Penal Code.
2. The charge, on a proper analysis, avers that the accused deceived Mr. B.J. Pithia by making a false representation that he or rather his firm was acting as brokers on behalf of Santoke Chand Manik Chand, who, according to the accused, were a respectable firm of jute dealers carrying on business at 65, Noormull Lohia Lane, Calcutta, that by the said false representation ho induced Mr. B.J. Pithia to accept the Bought Note signed by his firm as such brokers and further induce Mr. B.J. Pithia to give a receipt for the said Bought Note.
3. For the purposes of the present application we must proceed on the assumption that all the facts alleged in the charge have been proved; we take it as proved that the firm of Santoke Chand Manik Chand has no existence and that the story of the accused's firm acting as broker to that firm is a myth, and further that the accused gave a Bought Note in respect of 2000 bales of jute purporting to be in the name of Santoke Chand Manik Chand and induced Mr. Pithia to accept it and give a receipt for it. Do these facts constitute an offence punishable under Section 420, Indian Penal Code.
4. Section 420, Indian Penal Code, says:
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security, shall be punished etc.
5. The receipt for the Bought Note no doubt is property and may also be 'valuable security.' But then, where is the dishonesty in the transaction? The Bought Note has as a matter of fact been given by the accused to Mr. Pithia, and that fact is acknowledged by the receipt. So far as the delivery of the receipt is concerned or the making of it is concerned, assuming that it is a valuable security, the transaction is quite fair and square; there is no question of any dishonesty at all. The accused cannot be said to have had the intention of causing wrongful gain to any person or causing wrongful loss to any person by inducing Mr. Pithia to make out or give him a receipt for the Bought Note which he had in fact made over to Mr. Pithia. Taking it at its utmost the accused's intention in getting Mr. Pithia to give him the receipt for the Bought Note was to hold him down to the contract, but by no stretch of imagination can it be said that his intention was to cause wrongful gain or wrongful loss. As observed by Batty, J. in the case of Bhagwant Appaji v. Kedari (1910) 25 Bom. 202 ' the word 'intent' by its etymology, seems to have the metaphorical allusion to archery, and implies 'aim' and this connotes not a casual or merely possible result-foreseen perhaps not as an improbable incident but not desired-but rather connotes the one object for far which the effort is made-and this has reference to what has been called the dominant motive without which the action would not have boon taken.
6. Learned Counsel appearing on behalf of the complainant appreciated the difficulty of applying Section 420, Indian Penal Code, to the case and he suggested that the proper charge to frame against the accused would be one under Section 415, Indian Penal Code, for an offence of simple cheating. He suggested that the charge should be to the effect that the accused deceived Mr. Pithia to enter into a contract with a bogus or non-existent firm which he would not have done if he were not so deceived and the said act caused or was likely to cause damage or harm to Mr. Pithia in reputation or property. He contended that Mr. Pithia did actually sustain damage or harm to property as the contract was not fulfilled and the market went up and so Mr. Pithia suffered loss in money; and secondly entering into a contract with a bogus firm is itself a disreputable thing and therefore it was likely to cause damage or harm to Mr. Pithia's reputation.
7. Now in a case of cheating we have got to see the intention of the accused at the time of the offence and judge of the consequences of the act or omission itself. The loss to property sustained by Mr. Pithia resulted not from the act which Mr. Pithia was unlaced to viz., the entering into the contract by him, but the non-fulfilment of the contract by the accused.
8. Under Section 415, Indian Penal Code damage or harm caused or likely to be caused must be the necessary consequence of the act done by reason of the deceit practised or must be necessarily likely to follow therefrom, and the law does not take into account remote possibilities that may flow from the act: Mojey v. Queen 'Empress (1890) 17 Cal. 606. The proximate and natural result only of the act has to be judged and not vague and contingent injury that may possibly arise: Milton v. Sherman (1918) 22 C.W.N. 1001. The prosecution allege in the present case that the accused use the name of a bogus or non-existent line, with the object of not fulfilling the contract in the event of the market going up, and as the market did go up he did not supply the jute with the result that Mr. Pithia suffered loss. Such remote consequences must, in my opinion, be ignored for the purposes of Section 415, Indian. Penal Code.
9. As for the damage or harm likely to be caused to Mr. Pithia's reputation, that again is too remote a contingency. A case similar to the present one, so far as this aspect of the question is concerned, was that of Kashinath (Criminal Revn. No. 402 of 1909) decided by Chandavarkar and Knight, JJ. of the Bombay High Court. In that case the accused applied to the Postal authorities and obtained an appointment in the Postal Department, but he had not mentioned in his application that he was dismissed from the Government service. He was charged with cheating as loss of reputation might accrue to the Postal Department from the employment of a man of doubtful character. The learned Judge in that case, observed as follows:
Such damage or harm must be the proximate and natural result of the act or omission; and we cannot include in it such vague and contingent injury as might arise from the discredit that might attach to that Department from the enjoyment of a man of doubtful character. It has not been suggested that the damage to be apprehended was that which would be caused by the petitioner's dishonesty, and this too would be a consequence too remote for the purpose of the section.
10. The same view was taken by this Court in the case of Legal Remembrancer v. Manmatha Bhusan : AIR1924Cal495 , in which a damage to reputation for impartiality was held as too remote for the contemplation of the statute and it was observed that the damage must be direct, natural or probable consequence of the act and not the indirect and ulterior result of it.
11. Learned Counsel appearing on behalf of the complainant has drawn our attention to the case of Bhagwan Kessen v. Siba Valji (1901) 4 Bom. L.R. 76, but in my opinion that case has no application here, the facts being entirely different.
12. In no view of the facts alleged in the present case is it possible to hold that there was any offence either of simple or of the aggravated form of cheating as defined in the Indian Penal Code. The continuance of the proceedings therefore would mean an abuse of the processes of the Court; and under such circumstances as laid down in the case of Chandi Pershad v. Abdur Rahman (1894) 22 Cal. 131, it is our bounden duty to interfere.
13. I would, therefore, make the Rule absolute and quash the proceedings.
14. I agree.