1. The four appellants here were convicted by the Chief Presidency Magistrate of offences for cheating under Section 420 of the Code read with the conspiracy Section 120-B and they were also convicted of individual offences of cheating. The learned Magistrate refrained from passing separate sentences under the conspiracy charges but he sentenced each of them to two years' rigorous imprisonment on the bare cheating convictions. It is a very bad case indeed of organised and up to discovery successful attempts at swindling traders by means of the persons concerned putting themselves forward as being members of a reputable firm of buyers. The firm which they invented had no existence. They called it a firm of Gangadhar Beni Prosad, and their method was to hire and lock up a room, keep a durwan there and operate from this place obtaining goods by swindling. After they had obtained the goods they would resell them at prices under the market rate and it was through a police officer inspecting one of the accused customer's stocks that the goods were found and the crime was detected. One of the appellants has been at this game before and presented an appeal, none too successful one, so far as this Court was concerned. We think that the facts which were very adequately dealt with by the learned Chief Presidency Magistrate are quite unassailable and as far as they are concerned, the appellants have never had any chance of success at all. But they had the advantage of an interesting and able argument put forward by Mr. Bhattacharya who appeared for one whom I think I might safely call the leading appellant Giridhari Lal on grounds of law and procedure. Mr. Bhattacharya's contention amounted to this that in addition to the charge of conspiracy brought against these persons they were improperly charged with cheating in a manner contrary to the provisions of Section 234, Criminal P. C. That section which is complementary to the preceding Section 233 affords an exception to the usual rule in the criminal case that each offence must be the subject of a separate charge. Section 234 lays down that if a person is accused of more than one offence of the same kind committed within a space of 12 months he may be charged with and tried at the same trial for any number of those offences not exceeding three. Mr. Bhattacharya argued here that the charges did, in fact, amount to more than three and he urged upon us that as they were put before the Court together with a charge of conspiracy they constituted an illegal procedure as laid down in the well-known case, decided in the Privy Council over 30 years ago, that in Subrahmania Ayyar v. Emperor (1902) 25 Mad 61.
2. The answer of the Crown to this point of law was that the Subrahmania's case (1) was decided when the only type of conspiracy offence which was recognised by Indian Penal Code was that form of conspiracy which is known as conspiracy by abetment, but that since the decision in Subrahmania's case, (1) a new and supple mentary Section 120-B, extending the law of conspiracy in India and bringing it into line with the law of conspiracy in England has been introduced and by the appearance of that section it is possible to try persons at one and the same time for conspiracy under Section 120-B together with numerous other charges not necessarily of the same kind. A number of authorities were cited to us by the learned Deputy Legal Remembrancer in regard to his view of the law dealing not only with misjoinder of charges but also with the common case of misjoinder of parties. The whole position is a curious one, because I for one find it a little difficult to distinguish in principle between the decision in Subrahmania's case (1) and these other more recent decisions even though it may be accepted that Section 120-B has extended the law of conspiracy beyond the narrow confines of the law of conspiracy depending upon abetment alone. It seems to be that at some time or another, (it may be quite soon), that the Judicial Committee will be asked to give an authoritative ruling upon any possible change in the law which has been introduced by the appearance of Section 120-B and it may well be that the governing factor in laying down the procedure as to what is permissible in framing charges against accused persons will depend upon some necessary finding as to whether the particular conspiracy in the particular case amounted to a single transaction or several transactions. I have perhaps taken too much time in dealing with this point. I have only done so in deference to the argument addressed to the Court.
3. We are of the opinion that on the actualities of this case there has been no infringement of the provisions laid down in Section 234, Criminal P. C. No doubt the question whether an offence has been committed under Section 420 does not depend upon the accused's success in swindling of the amount of times that he has managed to obtain property by cheating but depends in each individual case, on the successful inducement of the person cheated. In this particular case, we are of the opinion that if the charges, carelessly drawn up as they are, are regarded in their proper perspective, there are only three charges which come within the legitimate purview of the section. For all these reasons, we dismiss these appeals so far as the convictions are concerned. We dismiss also the appeals, so far as the sentences are concerned, with the exception of the sentence upon the appellant, Radha Kissen Brahmin. He has alleged in this petition of appeal that he is only 18 years of age. The Crown are unable to help us at the moment as to testing that allegation. If it is true, we shall reduce his sentence. He must now surrender to his bail along with the others and we further direct that he be examined by the Police Surgeon who will report to this Court as to his exact age; and on receipt of his report, if Radha Kissen is found to be under 20, we shall certainly reduce his sentence.
4. I agree that Mr. Bhattacharya was unable to lay the necessary foundation for his argument on the point of law. I am bound to say that had he been successful in doing so, then it was an argument which would have deserved our very serious consideration. In the present circumstances, I do not desire to express any opinion on the point raised.