054-NLR-NLR-V-48-DE-ALWIS-Appellant-and-SELVARATNAM-Inspector-of-Police-Respondent.pdf
172
HOWARD CJ.—de Alwis t>. Selvaratnam.
1947Present: Howard C.J.
DE ALWlS, Appellant, and SELVARATNAM, Inspectorof Police, Respondent.
454—M. C. Colombo, 48,955.
Cheating—Ingredients which should be proved—Penal Code, ss. 3*^, -too.
The appellant was charged under section 400 of the Penal Code with:cheating a Proctor and Notary by falsely representing to him thatcertain premises described in the schedule to a mortgage bond attestedby him were free from all encumbrances when, in fact, the said premiseswere subject to a mortgage.
There was no proof that damage or harm was caused to the Proctorin body, mind, reputation, or property.
Held, that to constitute the offence of cheating under section 400 ofthe Penal Code the damage or harm caused or likely to be caused to theperson deceived must be the necessary consequence of the act done byreason of the deceit practised or must be necessarily likely to followtherefrom. The possibilities of damage or harm to mind or reputationwere too remote to be in the contemplation of the enactment.
PPEAL against a conviction from the Magistrate’s Court, Colombo,
L. A. Rajapakse, K.C. (with him E. D. Cosme and E. O. F. de Silva) rfor the 1st accused, appellant.
E. H. T. Gunasekara, Acting Solicitor-General (with him J. G. T.Weeraratne, C. C.), for the Attorney-General.
Cur. adv. vult.
March 3, 1947., Howard C. J.—
The accused was convicted of cheating, an offence punishable undersection 400 of the Penal Code, and sentenced to six months’ rigorousimprisonment.- The exact wording of the charge was as follows : —“You did at Hultsdorf, Colombo, on 26th September, 1941, beingthe first accused, deceive one R. Muttusamy, Proctor and Notary,bys falsely representing to' him that the. premises described in theschedule to mortgage bond No. 2123 dated 26th September, 1941,attested by him, the said R. Muttusamy, as Notary, were free fromall encumbrances whatsoever, whereas in truth a£d in fact, the said
HOWARD CJ.—de Alwis v. Selvaratnam.173
premises were on the 26th September, 1941, subject to a mortgagecreated by you in favour of one F. V. L. Drieberg of Bore 11 a, andfraudulently induce the said R, Muttusamy to attest the said deedNo. 2123 in his capacity as Notary Public which the said Notary wouldnot have done had he not been so deceived and which act was likelyto cause damage or harm to the said R. Muttusamy in body, mind,reputation or property and that the said 1st accused abovenamed didcommit an offence punishable under section 400 of Chapter 15 of thePenal Code.”
It has been contended on behalf of the appellant that the representationalleged to have been made by the appellant to Muttusamy did notinduce the latter to attest the deed and that Muttusamy would haveattested the deed if it had not been for the' representation of theappellant. It is also maintained that it has not been established that theact was likely to cause damage or harm to Muttusamy in body, mind,reputation or property. In finding the appellant guilty of the offence theMagistrate states that it is idle'to suggest that because Muttusamy hasnot in fact suffered any harm, or damage, the act of the appellant wasnot likely to cause damage to Muttusamy in mind,* reputation or property!Counsel for the appellant contends that the possibilities contemplatedby the Magistrate were too remote and the facts do not constitute at*offence under the section. In this connection he has referred me to thecase of Mojey and others v. The Queen-Empress.'
The headnote of this case is as follows : —
"To constitute the offence of cheating under s. 415 of the InaiaiiPenal Code the damage or harm caused or likely to be caused to theperson deceived in mind, body, reputation, or property must be thenecessary consequence of the act done by reason of the deceit practised,or must be necessarily likely to follow therefrom.
Where therefore certain persons were charged under s. 419 of theIndian Penal Code, one with personating another person before aRegistrar, and the others with abetting such personation and causingthe Registrar to register a divorce under the provisions of BengalAct 1 of 1876 with the wife of the personated person, and where thelower Courts convicted the accused under that section, holding ~ thatas such registrations were voluntary and a source of gain to the Regis -• trar harm was caused to the Registrar in mind and reputation by regis-tering false divorces as well as by losing his fees in the future throughpersons being less likely to avail themselves of his services, and thattherefore an offence under the section had been committed.
Reid; that the possibilities contemplated. by the lower Courtswere too remote ; that the facts did not constitute an offence underthe section ; and that the conviction must therefore be set aside.”
At page 609 it is stated in the judgment that it is clear that the peti-tioners deceived the Registrar and it is clear that they thereby Inducedhim to register the fictitious deed of divorce—a thing he would -not hayedone unless he had been so deceived. The judgment then goes on to
1 Indian Decisions, 17 Calcutta S06.
174
HOWARD C.J.—de Alwis v. Selvaratnam.
state that in the opinion of the Court this act of registering the fictitiousdeed did not cause nor was it likely to cause damage or harm to the Regis-trar in body, mind, reputation or property. It is also stated in the judgmentthat the damage or harm must be the necessary consequence of the actdone by reason of the deceit practised or must be necessarily likely tofollow therefrom. The possibilities contemplated by the Magistrate,namely that the Registrar suffers not only in registration, but also bylosing his fees in future through people declining to avail^themselves ofhis offices, were too remote to be within the contemplation of the Statute.The conviction was, therefore, set aside. In my opinion it is not possiblef o distinguish the facts in the present case from those in Mojey v. Queen-Empress {supra). Assuming that the appellant deceived Muttusamy andthereby induced him to attest the mortgage deed, a thing he wouldnot have done unless he had been deceived, did such act cause or wasit likely to cause damage or harm to Muttusamy in body, mind,reputation or property ? There was no proof of damage or harmto body or property. Can it be said that there was damage orharm to mind or reputation ? So far as reputation is concernedMuttusamy took every step that a careful Notary would take toprotect the interests of his clients. I do not think damage or harmto reputation have been established. The possibilities of damageor harm to mind or reputation were in my opinion too remote to be inthe contemplation of the Ordinance. I would also refer to my decisionin the case of Christinahamy v. Inspector of Police This was a case inwhich the prosecution was based on the alleged damage to the reputationof a Magistrate by an act of personation on the part of the accused.
In coming to this conclusion I have not lost sight of the decision in thecase of R. v. Bastian & others In this case the accused was chargedwith attempting to cheat a Notary by personation and it was held thatthe question whether the act would cause damage to the mind and repu-tation of the Notary was rightly left to the Jury. The case of R. v. Bastianwas referred to in the judgment of Middleton J. in The King v. Fernando *in the following passage :—
“As regards the first count on the indictment, the count was thesame as in Rex v. Bastian et al ‘ and I there held it was a question for thejury whether it was likely or possible that the notary would be injuredin mind or reputation. There, is no evidence, however, given by thenotary here to prove that such a personation would affect his reputa-tion, although I have very Little doubt-that it might have done so withthe Registrar-General, if not with the respectable public, if the person-ation had succeeded and had been subsequently repudiated by theaccused. I hesitate to interfere, therefore, with the finding of theDistrict Judge on that count.”
In Rex v. Bastian it would appear that the Notary affected gaveevidence to prove that such a personation would affect his reputation.Thefe is no evidence by Muttusamy to the effect that the act of theaccused in this case would affect his reputation. The cases of Bastian and
1 (1946) 47 N. L. R. 382.‘ (1912) 15 N. L. R. at p. 109.
‘ 11902) 2 Balasingharn’e Reports 93.* (1902) 2 Bal. 93.
WIJEYEWARDENE J.—The Deputy Financial Secretary v. Sirisena. 175
Fernando were considered in The King v. Perera1 which was another caseof personation. All these cases relate to cheating by personation and Ican well understand that a Notary would suffer in mind and reputationif he had been deceived by such an act. In the present case, however,Muttusamy took every precaution and I am of opinion that the cases inquestion are not relevant when consideration is given to the act withwhich the accused is charged. I think I must follow Mojey v. Queen-Empress.
The conviction is therefore set aside.
Conviction set aside.