1. The charge framed in this case runs in these words, 'That you, on or about the 19th September 1923, in Calcutta, deceived Mr. E. J. Pithie of Birla Jute Manufacturing Company Ld., by inducing him to accept a bought note signed by your firm as brokers on behalf of Santok Chand Manik Chand, who you represented, were a respectable firm of jute dealers carrying on business at 65, Nur Mull Lohia Lane, Calcutta, knowing that such representation was false: and farther by inducing the said Mr. E. J, Pithie, by means of such representation, to give a receipt for the said bought note; and you thereby committed an offence punishable under Section 420. I. P. C.'
2. The charge, on a proper analysis, avers that the accused deceived Mr. E.J. Pithie by making a false ' representation that he, or rather his firm, was acting as brokers on behalf of Santok Chand Manik Chand, who, according to the accused, were a respectable firm of jute dealers carrying on business at 65, Nur Mull Lohia Lane, Calcutta, that by the said false representation lie induced Mr. E. J. Pithie to accept the bought note signed by his firm, as such brokers, and further induced Mr. E. J. Pithie 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 Santok Chand Manik Chand has no existence, and that the story of the accused's firm acting as brokers to that firm is a myth, and further that the accused gave a bought note in respect of 2,000 bales of jute purporting to be in the name of Santok Chand Manik Chand and induced Mr. Pithie to accept it and give a receipt for it. Do these facts constitute an offence punishable under Section 420 of the Indian Penal Code?
4. Section 420 of the Indian Penal Code says: 'Who- 'ever cheats and thereby dishonestly induces the per- 'son 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.' 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. Pithie, 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 of causing wrongful loss to any person by inducing Mr. Pithie to make out or give him a receipt for the bought note which he had in fact made over to Mr. Pithie. Taking it at its utmost the accused's intention in getting Mr. Pithie 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 Kashinath (1900) I. L. R. 25 Bom. 202, 226. at p. 226 'the word 'intent' by its etymology, seems to have 'the metaphorical allusion to archery, and implies 'aim; and thus connotes not a casual or merely possi-'ble result-foreseen perhaps not as an improbable 'incident but not desired-but rather connotes the 'one object for which the effort is made,-and this has 'reference to what has been called the dominant motive 'without which the action would not have been 'taken.'
5. Learned Counsel appearing on behalf of the complainant appreciated the difficulty of applying Section 420 of the Indian Penal Code to the case, and he suggested that the proper charge to frame against the accused would be one for an offence of simple cheating under Section 415 of the Indian Penal Code. He suggested that the charge should be to the effect that the accused deceived Mr. Pithie 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. Pithie in reputation or property. He contended that Mr. Pithie did actually sustain damage or harm to property as the contract was not fulfilled and the market went up, and so Mr. Pithie 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. Pithie's reputation.
6. 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. Pithie resulted not from the act which Mr. Pithie was induced to do, viz., the entering into the contract by him, but the non-fulfilment of the contract by the accused. Under Section 415 of the Indian Penal Code, the 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) I. L. R. 17 Calc. 606]. The proximate and natural result only of the act has to be judged, and not any 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 used the name of a bogus or non-existent firm, 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. Pithie suffered loss. Such remote consequences must, in my opinion, be ignored for the purposes of Section 415 of the Indian Penal Code.
7. As for the damage or harm likely to be caused to Mr. Pithie'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 Re Kashinath Cr. Revis. 402 of 1909 (Bom.), decided by Chandarvarkar 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 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 Judges 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 Depart- 'ment from the employment of a man of doubtful 'character. It has not been suggested that the damage 'to be apprehended was that which might be caused 'by the petitioner's dishonesty, and this too would 'be a consequence too remote for the purpose of the 'section.' The same view was taken by this Court in the case of Legal Remembrancer v. Manmatha Bhusan Chatterji(1923) I. L. R. 51 Calc. 250. unrep, 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 the direct, natural or probable consequence of the act, and not the indirect and ulterior result of it.
8. Learned Counsel appearing on behalf of the complainant has drawn our attention to the case of Bhagwan Kessew v. Siba Valji (1901) 4 Bom. L. R. 76, but in my opinion that case has no application here, the facts being entirely different.
9. 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 process of the Court; and under such circumstances, as laid down in the case of Chandi Perahad v. Abdur Rahaman (1894) I. L. R. 22 Cale. 131, it is our bounden duty to interfere. I would, therefore, make the Rule absolute and quash the proceedings.
10. I agree.