In Re: Kunju alias Vaithianathaswami Aiyar

Jackson, J.—The petitioner has been sentenced to twelve months'' rigorous imprisonment under Sections 417, 511 and 193, 511, Indian

Penal Code.

Petitioner owed money to the complainant and sent a registered and insured packet purporting to contain currency notes in settlement of the

debt. The packet contained waste paper. Complainant sued petitioner for the debt, and petitioner filed an application in the Court of the

Subordinate Judge to receive the complainant''s signed acknowledgment of the receipt of the packet as collateral evidence in proof of satisfaction.

The petitioner was charged on 25th May, 1925 with attempting to cheat the complainant by inducing him to sign the acknowledgment for the

receipt, the offence under Sections 417, 511 and on 22nd Aug., 1925 he was further charged that he caused circumstances to exist as detailed in

the charge under Sections 417. 511 and made a document containing a false statement intending that such circumstance and false entry may

appear in a judicial proceeding and that they may cause an erroneous opinion to be formed touching the offence of cheating, the offence under

Sections 193, 511, Indian Penal Code.

The Sub-divisional Magistrate should paragraph his judgments. The first three paragraphs set forth the facts. Paragraph 4 describes how the

bench clerk of the Mayavaram Subordinate Court proved that in that Court the accused attempted to file the acknowledgment in the course of the

civil suit between him and complainant. In paragraph 5 the law is discussed. The Sub-divisional Magistrate defers to the clear rulings in Raman

Behari Roy v. Emperor I LR (1923) C 849 and Tula Ram v. Emperor (1923) 21 A L J 865, that the facts of the case do not constitute cheating,

but he holds, following the Patna ruling in Sadho Lal v. Emperor (1916) 34 IC 992 that there is an attempt to cheat, though acknowledging that

that ruling is dissented from in Tula Ram v. Emperor (1923) 21 A L J 865. The Magistrate distinguishes that latter case because there it is stated

that if the accused was put to the proof of discharge he might imagine that the acknowledgment of the packet would be some sort of a proof;

whereas in the present case he actually did attempt to use the acknowledgment for this purpose.

But Sulaiman, J., does not hold that if the acknowledgment was used in a judicial proceeding there would be an attempt to cheat. He holds that

in those circumstances the offence of fabricating false evidence might be committed. In the Patna case no reasons are given for holding that the

facts constitute an attempt and it is difficult to understand how the learned Judges could have held (if their attention was particularly directed to this

point which is unlikely for they were only considering a petition u/s 439) that the facts amounted to anything more than preparation. There cannot

be an attempt unless the actual transaction has commenced (In the mailer of the petition of Riasat Ali I L R (1881) C 352 ]. The actual transaction

in these cases would be the fraudulent defence of the suit for recovery of the debt; and until then in the picturesque phrase of the Magistrate the

accused ''armed with the postal receipt was only waiting for his time to bolster it up in a judicial proceeding as a trap door to escape.'' In short, he

was prepared with a defence, but had not yet attempted to cheat.

The Appellate Court takes this point in its 12th para, and finds in its 13th that the offence of cheating, not an attempt to cheat,is committed by

the representation of the accused that the cover contains currency notes worth Rs. 500 which had induced the addressee to acknowledge the

receipt of that insured cover, which is likely to cause harm to the complainant. This is counter to the ruling in Raman Behari Roy v. Emperor I.L.R.

(1923) C 849 and Sadho Lal v. Emperor (1916) 34 I C 993 for the Patna Bench agrees that the facts do not amount to a complete offence of

cheating. Arura v. Emperor (1912) 20 I C 596 (which is not a High Court ruling and need not have been cited) is to the same effect. And at the

close of para. 13 the learned Judge himself refers to Sections 417, 511, although his finding is that the actual offence of cheating was committed.

The Judge would have been better advised to follow Raman Behari Roy v. Emperor ILR (1923) C 849, for the point is quite plain. The act of

signing a postal acknowledgment by itself is not likely to cause damage. To satisfy the definition of cheating there must be immediate causation, and

the act itself must involve the probability. It is not enough to say that the signed acknowledgment is likely to be used so as to cause damage; the act

of signing itself must be likely to cause damage. Nor can there be said to have Been an attempt as distinguished from a preparation, as already

shown in discussing the trial Court''s judgment.

There remains the second charge under Sections 193, 511, Indian Penal Code.

The Sub-divisional Magistrate finds in paragraph 6 that the accused created a false document and actually used it in a judicial proceeding. He

filed the postal receipt in the suit filed against him in the Subordinate Court supported by an affidavit that he had discharged the debt. The charge,

however, is that accused made a false document intending that it might cause an erroneous opinion to be formed touching the offence of cheating.

Apparently the Court that the Sub-divisional Officer had in view was the Criminal Court, which argues a confusion of mind only explicable by the

fact that he could not take cognizance of the proceeding in the Civil Court without sanction. Yet the finding is that accused used a false document in

the Civil Court, the completed offence under Sections 196, 193, on which Section 511 has no bearing. The Appellate Court finds as a matter of

fact that the accused petitioned the Sub-Court for admitting the receipt, and he therefore attempted to fabricate false evidence though he did not

succeed in it, the offence under Sections 193, 511. This is hardly correct. He may not have succeeded in getting the evidence accepted; but he

attempted to use as true fabricated evidence, the offence u/s 196. (The postal acknowledgment was a circumstance caused to exist with the

intention of causing an erroneous opinion.)

On these findings of fact it is clear that an offence punishable u/s 193 was committed of which the Subklivisional Magistrate could not take

cognizance, except on the complaint of the Subordinate Judge. The fact that the Sub-divisional Magistrate took cognizance of an offence on a

police charge-sheet u/s 420 on March 5, and the accused attempted to use the fabricated evidence on March 31st does not absolve the Sub-

divisional Magistrate from obtaining sanction when he decided on August 22 to frame a charge under Sections 193, 511. When the facts were

brought to the Magistrate''s knowledge it was alleged that the offence was committed in relation to a proceeding in the Sub-Court, and Section

195 (b), Criminal Procedure Code, makes sanction imperative.

The petitioner never raised this question in the Appellate Court, but he can hardly be blamed because he is only charged and convicted for

fabricating false evidence to mislead the Court in regard to the offence of cheating, and the second charge is really ancillary to the first to bring it

into conformity with Tula Ram v. King Emperor. But the offence for which he is really convicted, and could only be convicted, is that in relation to

the Subordinate Court proceedings.

No doubt in vacating the proceedings on the comparatively trivial charge u/s 511, and preferring to stand his trial for a completed offence u/s

193 the petitioner runs grave risk of enhanced punishment; but that is his own concern.

I find that no offence under Sections 417, 511, Indian Penal Code, has been committed; and if the petitioner is to be re-tried u/s 193, Indian

Penal Code, sanction should be applied for in the Court of the Subordinate Judge, Mayavaram. The findings and sentence of the Sessions Judge

and Sub-divisional Magistrate are reversed and petitioner is released from his bail. His retrial must abide the decision of the sanctioning Court.