Thakur Mandal vs Emperor

Varma, J.—This is a petition on behalf of one Thakur Mandal who was convicted by a First Class Magistrate under Sections 419-109, Penal Code, and sentenced to one year''s rigorous imprisonment. He was tried along with one Borhan Mandal who was convicted u/s 419, Penal Code, and sentenced to one year''s rigorous imprisonment. The case for the prosecution is that one Masudan Bind was an employee in the Jamalpur Workshop. His services terminated on 1st April 1938 on account of reduction in the establishment. Masudan Bind was granted a certificate of discharge on 3rd April 1938, which is Ex. 13 in the case. This discharge certificate was given by Masudan Bind to the petitioner Thakur Mandal some time in September 1939 as Thakur Mandal has promised to get him re-employed in the workshop. After waiting for about ten months, during which period nothing was done for him, Masudan Bind demanded the certificate back from Thakur Mandal. When Masudan Bind threatened that he would file a petition before the manager, Thakur Mandal said that he should not file such a petition as the certificate of Masudan Bind had been used by Borhan ! Mandal who had been appointed on the strength of the certificate. Thakur Mandal further told Masudan Bind that he would get him appointed on another man''s certificate. Masudan then sent two petitions to the D.C.M.E. of the Jamalpur Workshop. No action seems to have been taken on these petitions, but when a third petition was sent by registered post, the D.C.M.E. sent it to the police for investigation. As a result of the investigation the two accused were put on trial and convicted. On appeal the convictions and sentences were affirmed. Thakur Mandal''s defence was that he had never used Masudan Bind''s certificate and that the whole case against him was false. The defence of the other accused was, whose petition is not before us, that he had two names one of which happened to be Masudan Bind and he had succeeded in getting his appointment in the workshop on his own account and not on the strength of any man''s discharge certificate. The charge framed against Borhan Mandal was as follows:

That you on or about 24th November 1939 at Jamalpur, pretending to be Masudan cheated Mr. G.W. Browne, D.C.M.E Jamalpur Workshop E. I. Ry. by such personation and thereby committed an offence punishable u/s 419, Penal Code, and within my cognizance.

The charge against the petitioner Thakur Mandal was as follows:

That you on or about 24th November 1940, at Jamalpur abetted the commission of the offence of cheating by personation by Borhan Mandal who pretended to be, Masudan, and thereby cheated Mr. G.W. Browne, D.C.M.E., Jamalpur workshop E. I. Ry. by personation, which was committed in consequence of your abetment and thereby committed an offence punishable u/s 419-109, Penal Code....

The year mentioned in the charge against Thakur is 1940 but evidently it is a mistake. The lower appellate Court has come to the following findings: (1) that Borhan Mandal "obtained his appointment in the workshop on the basis of that certificate and personating himself as Masudan Bind"; (2) that Thakur Mandal had taken the certificate from Masudan; and (3) that Mr. G.W. Browne, D.C.M.E. of Jamalpur Workshop would not have made the appointment had he known of the false personation. The question that arises for consideration in this case is whether it has been established that Borhan Mandal was guilty u/s 419 and Thakur Mandal u/s 419-109, Penal Code. On the findings arrived at on the evidence of the officers of the Jamalpur workshop it is clear that the discharge certificate with a superimposed thumb mark was produced by the office where it was found; the certificate would not have been there if Borhan Mandal had not produced it, and Borhan Mandal could not have produced it if he had not received this discharge certificate from Thakur Mandal. Prom the evidence of Masudan Bind himself, who was personated, and the other witnesses who came in support of this story there is no doubt that the discharge certificate was handed over to Thakur Mandal. The next question that arises is whether when Borhan Mandal handed over the discharge certificate at the time of his appointment, he was guilty of the offence u/s 419. Section 419 runs as follows:

Whoever cheats by personation shall be punished with imprisonment of either description (or a term which may extend to three years, or with fine or with both,

and cheating has been defined in Section 415 as follows:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to cheat.

A dishonest concealment of facts is a deception within the meaning of this section.

There can be no doubt that the handing over of the certificate was an act of deception. The question then to be considered is what the deceived person was induced to do because of that deception. To bring the case u/s 419, we have to ask--Can it be said in the present case that Mr. Browne was induced to deliver any property to Borhan Mandal, or, was Mr. Browne induced to do something which he would not have done or omitted if Borhan Mandal had not handed over the discharge certificate, and that the appointment of Borhan Mandal by Mr. Browne has resulted in causing damage or harm to Mr. Browne in body, mind reputation or property? If by appointing Borhan Mandal, Mr. Browne gave him the job of a coolie which enabled Borhan Mandal to receive payments in cash, it is clear that Mr. Browne delivered property to Borhan Mandal in the shape of pay by appointing the latter. The argument that the pay was given for the work done by Borhan Mandal and not as a consequence of the act of deception does not commend itself to me, for Borhan Mandal sought the job for the emoluments attached to it and not for the pleasure of the work. If the facts are proved, it was a case by which Mr. Browne was induced to let Borhan Mandal Ram his pay. So, as I said, in this particular case, if Mr. Browne was induced to appoint Borhan Mandal to the job by the deception practised, the case would come clearly u/s 419, Penal Code. Having come to this conclusion it is not necessary for me to discuss second part of Section 415, Penal Code.

But the matter does not end here. It was the duty of the prosecution to establish beyond doubt that the appointment of Borhan Mandal was made as a result of the deception and nothing else. There are a number of cases which deal with the legal position when property has been obtained by any false pretence. In Rex v. Dale (1836) 7 CP 352, when the property, a filly, was delivered not on account of false pretence but because the prosecutor believed that the accused would pay the price of the property, under those circumstances Coleridge, J. told, the jury:

The question for you to consider is, whether the prosecutor parted with his filly by reason of his having believed any false pretence made use of by the prisoner. It is sufficient for the prosecutor to prove that any one of the false pretences charged in the indictment was false, and that he parted with his Ally by reason of such false pretence, the prisoner intending to defraud him thereby. However in this case, the prosecutor himself says that he parted with his filly because the prisoner promised to pay him, and not on account of any of the false pretences charged. If you think that was so you will acquit the prisoner.

False pretence in English law is narrower in its application than what is contemplated by ''cheating'' in Section 415, Indian Penal Code. It does not cover cases dealing with second part of the definition of cheating but concerns only where delivery of chattel, money or valuable security is obtained. There are a number of cases on this point, but I need not multiply instances. Now, has it been proved in this case that the job was obtained by Borhan Mandal as a result of any fraudulent or dishonest inducement by him to Mr. Browne? On this point, I am afraid, I shall have to go into the evidence. Mr. Browne was the person who is said to have been cheated. He is P.W. 12 and has stated in his examination-in-chief as follows. "This Ex. 1-6 is the letter which I sent to Inspector, G.R. Police, Jamalpur, for taking necessary action." In cross-examination after charge on behalf of accused Thakur, he said:

I am in the Railway Department since January 1923. Most suitable persons are appointed. Personal qualification of a candidate is the criterion for his appointment. If a candidate is found unfit for appointment, any recommendation will not be of any use.

This is the whole of his oral evidence in this case. The letter Ex. 1-6 is in these terms:

To

The Inspector G.E. Police, Jamalpur,

Dear Sir,

I am enclosing herewith in original oomplaint received from one Masudu Bin (?) whioh alleges false impersonation by one Borhan Buri. From enquiries I believe this complaint has some foundation, and I request you to investigate it as early as possible.

Yours faithfully ........... Dy. Chief Mechanical Engineer.

Exhibit 1 is the petition addressed by Masudan Bind to the Works Manager, East Indian Bajlway, Jamalpur, in which he gives the story of the prosecution as to how the discharge certificate was handed over to Thakur Mandal and Thakur Mandal handed over the same to Borhan Mandal. There is nothing in the evidence of Mr. Browne to show that he was induced by the discharge certificate in making the appointment. Mr. Gierke (P.W. 13), who is the Assistant Foreman in the Jamalpur Workshop, says that Borhan Mandal appeared before him and was appointed on 24th November 1939, that Borhan Mandal gave twenty-four hours notice and left the work before his resignation was accepted and without taking his wages, and that Borhan Mandal was discharged on 21st July 1940. Exhibit 5 is the service sheet and Ex. 5(1) is the entry of discharge. This wit'' ness threw some light on the question as to how appointments are made. He says that candidates who apply for the post of chain-examiners are tested before appointment''; if the candidate passes the test, he has to undergo a medical examination, and if found fit then he is appointed. The Workshop Officials were not questioned whether Borhan Mandal had actually made over the certificate to any one of them and whether they took into account that certificate in making the appointment. No doubt the discharge certificates were supposed to be of value by the labourers, otherwise they would not have got the evidence that Masudan was willing to pay Rs. 40 for the certificate of Thakur. But the question that we have to consider is, whether Mr. Browne was induced to make the appointment by the production of the discharge certificate. The subsequent attitude of Mr. Browne in sending the letter of Masudan (p.w. 10) to the police is not of much value. When Mr. Browne was in the witness-box the prosecution could have proved directly through him that he was induced to make the appointment by the production of the discharge certificate, and their failure to do so leaves the Court guessing as to what his attitute with regard to the certificate really was. In the face of the evidence of Mr. Browne himself (which I have quoted in full) I am of opinion that the negative inference that in the circumstances it could not be said that Borhan was not appointed on the strength of the discharge certificate is not of much value. We are concerned chiefly with the mental attitude of the parties at the time when the alleged act of cheating is said to have taken place. The subsequent conduct of Borhan Mandal on learning of an inquiry having been started may show that he was not sure of having done the right thing btt does not supply the lacuna in Mr. Browne''s evidence.

In the circumstances I am of opinion that in this particular case it has not been proved satisfactorily that Mr. Browne was induced to appoint Borhan Mandal on the production of the discharge certificate. Therefore, although Borhan Mandal is not a petitioner before this Court, exercising the revisional powers of this Court I would set aside his conviction and sentence u/s 419, Penal Code, and order that he be acquitted and set at liberty. That being so, the conviction of Thakur Mandal petitioner, cannot be upheld. His conviction and sentence must also be set aside and he should be acquitted and set at liberty forthwith. I would make the rule absolute.