Baijnath Sahay vs Emperor

James, J.—The petitioner has been convicted of an attempt to commit an offence punishable u/s 417, Penal Code. He owed the sum of Rs. 120 to a man named Sant Ram who in December 1931, was absent from Barh at his own home in the Punjab. Sant Ram asked one Banarsi Singh to recover from the petitioner the money which be owed but the petitioner said that he would send the money direct to Sant Ram. He sent a letter insured for the sum of Rs. 120 from the post office at Barth addressed to Sant Ram; but after Sant Ram had signed the acknowledgment of the receipt of this insured letter, it was discovered that it contained nothing but blank sheets of paper. The Courts below found that the petitioner had deceived the complainant and fraudulently induced him to sign the receipt of acknowledgment and this act on the part of the complainant was likely to cause damage to the complainant.

On behalf of the petitioner it is argued that as there is no evidence to show that the petitioner actually used this receipt in support of the claim that he had paid, he should not be regarded as having cheated or as having attempted to cheat, since he had done no more than mere preparation to cheat.

The learned Sessions Judge maintained the conviction relying upon the decision of this Court in Sadho Lal v. Emperor (1916) 1 PLJ 391 where in similar circumstances a man was convicted of attempting to cheat.

On behalf of the petitioner reliance is placed upon the decision of a Judge of the Allahabad High Court in Tula Ram v. Emperor AIR 1924 All 205 wherein Tula Ram had sent certain documents which were described as Khilafat bonds, insured for their value of Rs. 500, and it had been assumed that, after obtaining the receipt, he would have pretended that as a matter of fact he had sent Government currency notes and not Khilafat bonds. The learned Judge found that no offence had been committed of the nature described in Section 415, Penal Code, although Tula Ram might possibly have been charged with an attempt to fabricate false evidence within the meaning of Section 192 of the Code.

With due respect to the eminent Judge who decided that case, I would say that the difficulty which he found in accepting the ratio decidendi of the Patna decision which has been mentioned was due to the fact that the Judges convicted of attempted cheating, although the substantive offence had been committed; and that if in fabricating false evidence against a creditor, the debtor has by deceiving the creditor, made him to be an agent in the fabrication, the debtor may have committed an offence punishable u/s 193; but he has certainly also committed the offence defined in Section 415 of the Code.

On behalf of the petitioner the case of In re Kunju AIR 1927 Mad 199 is also cited. In that case Kunju who owed money to the complainant had sent a registered insured packet purporting to contain currency-notes but which only contained waste paper and subsequently when he was sued he had put forward the complainants'' signed acknowledgment receipt of the packet as evidence in support of the claim of payment. The learned Judges of the Madras High Court there held that no offence of the kind described in Section 417, Penal Code, had been committed, relying on the judgment in the case of Tula Ram v. Emperor AIR 1924 All 205 which has been mentioned above, pointing out that even though the acknowledgment might be used in a judicial proceeding that would not amount to an attempt to cheat, although it might amount to an attempt to fabricate false evidence.

The case of Raman Behari Roy Vs. Emperor, is also cited, wherein the learned Judges held that the person deceived had not been induced to do or omit to do anything which he would not have done or omitted, if he had not been so deceived, and that there had been no act or omission which was likely to cause damage or harm to that person in body, mind, reputation or property. They pointed out that all that the person had been induced to do was that he signed the receipt acknowledging the delivery of a cover, but he had not acknowledged by that the receipt of any sum of money alleged to be contained in the cover.

Sir Sultan Ahmad on behalf of the Crown supports the view taken by the learned Judges of this Court in the case of Sadho Lal v. Emperor (1916) 1 PLJ 391 arguing that although they convicted of attempted cheating, they should on their findings have convicted of the substantive offence. He points out that the offence of cheating, if any such offence is committed in obtaining an acknowledgment which is intended to be put forward as proof of payment, is complete when the acknowledgment is obtained.

As I have observed, I think that the difficulty which other High Courts in India have found in following the decision in Sadho Lal v. Emperor (1916) 1 PLJ 391 is due to the fact that the learned Judges in that case convicted only for the attempt. Strictly speaking if any offence described in Section 415 is committed at all by action such as that of the petitioner in this case it is committed when the acknowledgment is obtained; the commission of the substantive offence is not postponed until the attempt is made to use the acknowledgment as proof of payment.

Sir Sultan Ahmad refers also to a decision of Sir Arthur Reid in Arura v. Emperor (1912) 10 PR 1913 wherein the learned Judge held that a debtor who in similar circumstances sent blank paper in an insured envelope attempted to commit the offence described in Section 415, Penal Code. As the learned Judge remarked, the signature on the receipt, and the taking delivery of the envelope by the creditor as the result of the deception, would be likely to cause damage to him; and had he opened the envelope in his own house and not in the presence of reliable witnesses at the place it might have been very difficult to prove that the contents of the envelope were not worth the sum for which it had been insured.

Sir Arthur Reid found in that case that the petitioner''s action went beyond the stage of preparation and far enough to constitute an attempt to cheat. On the findings of the learned Sessions Judge, I do not consider that I should be justified in differing from his decision. It matters little whether the petitioner is convicted of the attempt or of the substantive offence; but I would accept the view of Sir Sultan Ahmad, that is to say, that the offence described in Section 415 of the Code was actually committed; that the petitioner had not merely gone beyond the stage of preparation to the stage of attempting to cheat: but he had committed the substantive offence.

On the findings, the petitioner, desiring to evade payment of his debt, and to procure a document which would assist him in evading payment, sent to Sant Ram a registered and insured cover, in order to obtain from him an acknowledgment of receipt which could subsequently be used in order to evade payment. Sant Ram would not have signed the acknowledgment of the receipt of the insured letter, if he had imagined that it contained nothing but blank sheets of paper. When he did this act which he would not have done if he had not been so deceived he committed an act which was likely to cause damage or harm to him within the meaning of Section 415, Penal Code.

If I might be permitted to criticize the grounds for the decision given by those learned Judges who have differed from the decision of this Court, I would say that too much stress has been laid throughout upon the question of whether the acknowledgment of receipt of an insured letter obtained in this fashion amounts to itself to a valid quittance or to anything which might be described as a valuable security, and it appears to me that although the Division Bench of this Court rightly convicted in Sadho Rani''s case (1916) 1 PLJ 391, the learned Judges by themselves laying unnecessary stress on this point, and by adopting the view that the commission of the substantive offence of cheating would be postponed until the fabricated evidence was used, created the difficulties which were subsequently found in following their decision.

In Tula Rain''s case AIR 1924 All 205, which is the important link in the chain, the Assistant Government Advocate appears to have weighed the scales in the wrong directions by conceding that no offence of cheating had been committed: and the learned Judge confined himself to considering whether the effect of signing the acknowledgment would be to debar the creditor from instituting a suit.

These decisions differing from that of the Patna High Court proceed on the assumption that to trick a creditor into fabricating evidence which may be used against him is not an offence punishable u/s 417, Penal Code, unless the evidence is such as would afford conclusive proof of payment. I would say, with due respect to the learned Judges who have in my judgment this been misled, that the question of whether what is obtained from the creditor is a valid quittance or merely something to be used as evidence of payment, is unimportant. If he had been tricked into giving what, if obtained honestly, would have been a valid quittance, he would no more be debarred from instituting a suit than if he had been tricked into giving a receipt which was to be used merely as a piece of evidence.

A person commits an offence punishable u/s 417 if by deceiving his creditor he obtains from him a document, not necessarily a legal quittance or a valuable security, but such a document as is likely to facilitate the evasion of payment by the the debtor and to cause embarrassment to the creditor when he seeks to enforce his claim. The terms of Section 415 of the Code are wide; in this particular case it is clear that the intention of the petitioner was fraudulent, and he has been rightly convicted.

The conviction and sentence of the petitioner must accordingly be affirmed and the application be dismissed.