JAYETELEK.E J.—Abeyetoardene and Muttunoyogam.
1945Present: Jayetileke J.ABEYEWARDENE (P. S. 2666), Appellant, andMUTTUNAYAGAM, Respondent.
539—M. C. Colombo, 48,854.
Attempt—Charge oj attempt to cheat—Awareness oj complainant that he wouldbe cheated by accused—Guilt of accused—Penal Code, ss. 403, 490.
A person may be guilty of on attempt to cheat although the personhe attempted to cheat was aware of the true facts and was, therefore,not oheated.
PPEAL against an order of acquittal made by the Magistrate ofColombo.
V. T. Thamotheram, C.C., for the complainant, appellant.
No appearance for the accused, respondent.
Cur. adv. vult.
December 19, 1945. Jayetit.kke J.—
The accused, who is a clerk employed in the Tyre Controller’s Office,was charged under section 403/490 of the Penal Code with havingattempted to cheat one Perera. The evidence shows that on November6, 1944, he represented to Perera that his motor car had been placedin category C and that he could get it transferred to category B1 if hewas- paid Rs. 50. After some discussion the accused agreed to acceptRs. 25.' Later Perera learnt from another clerk that the representationmade by the accused that his car was placed in category C was false,and he reported the matter to the Tyre Controller. The latter got thePolice to take action and a trap was laid for the accused. On November8, 1944, Perera produced before Police Sergeant Abeyewardene twoten rupee notes bearing Nos. J/5 474008 and J/6 726599 and a five rupeenote bearing No. F/4 66428 and informed him that he intended to give
JAYETELEKE J.—Abeyewardene and Multvnayagam.
them to the accused In payment of the amount he demanded. PoliceSergeant A beyewardene noted the numbers on a piece of paper andrequested Perera to give them to the accused. Perera handed the notesto the accused on the pavement outside the office, and the accused gavehim a piece of paper on which he had noted the category assigned to thecar. Perera and the accused went back to the office and a little laterPolice Sergeant Abeyewardene came on the scene and wanted to searchthe accused. Thereupon the accused dropped the money he had in hishand. Police Sergeant Abeyewardene picked up the notes and foundthat they corresponded with the notes which Perera had producedbefore him. On further search Police Sergeant Abeyewardene foundin the note book of the accused an entry which had the number of Perera’scar. The accused did not give evidence on his own behalf. TheMagistrate held that, as Perera knew at the time he handed the moneyto the accused that the representation which the accused had madeto him was false, the charge of attempt to cheat could not be maintainedand acquitted the accused. This appeal is taken against that orderwith the sanction of the Attorney-General.
Mr. Thamotheram submitted to me three decisions which show thatthe order of the Magistrate is wrong. In Regina v. Handler 1 theaccused was indicted for attempting to obtain money by false pretencesin a begging letter. In reply to the letter the prosecutor sent the accusedfive shillings. But he stated in his evidence at the trial that he knewthat the statements contained in the letter were untrue. Kelly C.B.said—
“ This is an attempt by the prisoner to obtain money by falsepretences which might have been so obtained. The money was notso obtained because the prosecutor remembered something whichhad been told him previously. In my opinion, as soon as ever theletter was put into the post the offence was committed.”
In Rex v. Light 2 Rowlatt J. said—
“ It is quite clear that on the charge of obtaining goods or moneyby false pretences, no conviction is possible unless it is shown thatthe mind of the prosecutor was misled by the false pretence, and thathe was thereby induced to part with his money or goods. But it is afallacy to suppose that the same principle applies when an attemptonly is charged. A man makes false pretences with the intentionof obtaining money, and uses the false pretences in endeavouringto obtain money. The prosecutor may not believe the false state-ment and does not part with his money, or he may part with his moneyintending to carry the matter further. In each of these cases theaccused has made false pretences with the object of obtaining money,and has failed because the prosecutor has not been misled. There is,as it seems to us, no difficulty in deciding that under these circumstancesa man is guilty of attempting to obtain property or money by falsepretences.”
1 11 Cox's Reports of Cases (1867-71) 570.
1 24 Cox's Reports of Cases (1913-15) 718.
Veerakutly and JPuttenayagam, D.R. O.. Akkaraipattu.
In the Government of Bengal v. Vmesh Chunder Mitter 1 M wrote aletter to the Currency Office at Calcutta, enclosing the halves of twogovernment currency notes, stating that the other halves were lost,and enquiring what steps should be takon for the recovery of the valueof the notes. The Currency Office, having, upon enquiry, discoveredthat the amount of the notes had been paid to the holder of the otherhalves, and that the notes had been withdrawn from circulation andcancelled, sent M the usual form of claim to be filled up and returnedto it. It appeared from the evidence that the Currency Office nevercontemplated paying M in respect of the notes. The form was filledup and signed by M and returned by him to the Currency Office. It washeld that, although there was no intention on the part of the CurrencyOffice to pay the amount oi the notes, M was guilty of an attempt tocheat.
These authorities establish that a person may be guilty of an attemptto cheat, though the person he attempted to cheat was aware of thetrue facts and was, therefore, not cheated.
I would set aside the order made by the Magistrate and send the caseback to the Magistrate so that he may convict the accused and pass suchsentence on hi-m as he thinks fit.
A Oquittal set aside.
ABEYEWARDENE (P. S. 2666), Appellant, and MUTTUNAYAGAM , Respondent