002-NLR-NLR-V-18-KING-v.-ASIRWATHAM.pdf
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[Trial at Bar.]
Present: Pereira J.; Ennis J.( and De Sumpayo A.J.KING r. AS1RWATHAM.
Case No. 1 (Third Criminal Sessions, Western Circuit).
Act tone with intention to deceive—** Fraudulently*"
When an act is done with an intention to deceive, and by meansof the deceit to obtain an advantage, is is done 11 fraudulently."
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HIS case was reserved for trial before a Bench of three Judgesby Ennis J.
Accused, who was a vendor of opium employed under Government,was charged with having wilfully, and with intent .to defraud, madea false entry in a book which belonged to his employer, in that hemade in the book called ” The Daily Statement of AuthorizedVendors of Opium ” an entry implying that he on November 23,3912, soJd to ono Philipn Appuhamy, holder of certificate No. 2,644,400 grains of opium, whereas in fact he made no such sale at all.
According to the case for the prosecution, although the accusedmade the false entry mentioned above, he made good to Governmentthe full value of the opium said to have been sold.
After argument the Court made the following order:—
'* Having heard argument on both sides, the Court is unanimous.''of opinion that the facts assumed for the sake of agument aresufficient, if established, to sustain the indictment, and the Courtdirects that the case do proceed to trial. At the same time, theCourt expresses its opinion that the accused should have beenprosecuted under the Opium Ordinance, in which there is expressprovision for dealing with authorized vendors of opium in thecircumstances mentioned above. Hereupon the Solicitor-Generalmoves to be allowed to withdraw the present charges against theaccused in order to enable him to prosecute the accused under tlioOpium Ordinance.
“ Counsel for accused have no objection to this course.
“ The Solicitor-General’s application is allowed, and all proceedingsunder the present indictment against the accused are stayed, andhe is discharged of and from the same (section 217, CriminalProcedure Code).
“ The reasons for the above ruling on the question of law discussedwill be committed to writing and read out in open Court on Friday,October 23, 1914.”
1914,
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****** van Langenbesg, K.G., S.-G (with him Barber, C.G.)t for theKlng v.prosecution.—The accused clearly made the entry “ with intent to
AHrwatham defraud. “ It is not necessary that he should have intended to causewrongful loss to the Crowp to hold that- he acted “ fraudulently. ““Fraudulently" is not the same as “dishonestly." The twowords are used together in several sections. If the accused intendedto derive an advantage by his act which he would not have otherwisegained, he has acted with intent to defraud.
Counsel cited The King v. Petris,l Mohamed Said KhanQueenAdamant
Hayley (with him Sandrasegra and Arulanandam), for theaccused.—The accused, cannot be said to have acted with intentto defraud if he did not intend to cause wrongful loss or injury tothe person defrauded. lystish Chandra Mukurjee v. Empress;4Gour., vol. 1L, p. 1892; 10 Cal. 584; 7 AU. 459; IS Cal. 349;8 AIL 653; 28 Mad. 90, 96.
Assuming that there was fraud, covering up the fraud which hadbeen committed by the entry was held not to have come withinsection 477 of the Indian Code, and a special section was enactedin India to meet such cases.
In The King v. Perns1 there was actual misappropriation of themoney, and the marks were inserted for the purpose of the misappro-priation. But -in the present case there is no misappropriation. Theobservations of Bonser C.J. in Queen v. Adoman3 are too wide,and would penalize many harmless acts.
van Langenberg, K.C., S.-G., in reply, cited 11 Mad. £21, 22 Cal.313, 13 Bom. 515, 2 Bal. 93.
Reasons for the Order made (acquiesced in by the rest of theCourt) were given by Pereira J. on October 23, 1914.
In this case the accused, who iu the capacity of an authorizedvendor of opium was admittedly a servant or officer under Govern-ment, was charged (to take only the first count of the indictment)with having wilfully, and with intent to defraud, made a falseentry in a book which belonged to his employer, in that he madein the book called “ The Daily Statement of Authorized Vendors ofOpium “ an entry implying that be on November 23, 1912, sold toone Philipu Appuhamy, holder of certificate No. 2,644, 400 grainsof opium, whereas in fact he made no such sale at all. It was apart of the case for the prosecution that, although the accused madethe false entry mentioned above, he accounted to Government forthe full value of the opium said to have been sold. In thesecircumstances, the question is whether the accused can be said to
i (1912) 16 N. L. n u.3 (1898) n AIL 113.
3 1 Tamb. (Review) 91.
« (1909) L L. R. 36 Cal 955.
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have acted “ with intent to defraud. 44 In other wosds, whether the 1914.accused can be said to have acted fraudulently, the word 44 fraudu-' j^%ng v.lently 44 and the expression 44 with intent to defraud 44 having, under AnrwaAamsection 23 of the Penal Code, one and the same meaning. In manysections of the Penal Code the words 44 dishonestly and fraudulentlyare placed in juxtaposition to each other, thus showing that the.intention of the Legislature was that they were not to be regardedas having the same meaning. The word 44 dishonestly 44 is definedin the Penal Code to mean 44 with the intention of causing wrongfulgain to one person or wrongful loss to another? 44 4 4 Fraudulentlymnot for that reason be deemed to have the same meaning. Whatluen is the meaning to be given to it? The learned counsel for thedefence cited certain decisions of Courts of India, but .those decisionshave already been disapproved by this Court- Referring to themin the case of Queen v. Adamant Bonser C.J. observed: “ Like mybrother Withers, I am unable to follow these cases, and it seems tome that there is a fallacy in the reasoning. " A later case of Indiacited for the defence is that of lystish Chandra Mukurjee v. Empress.*
That case hardly enables us to give the word 44 fraudulently 44 ameaning in connection vwith its use with which we are now concerned.
The entry complained of in that case was an entry in a book of asum that the accused had actually received, although the entryhad before been fraudulently omitted. So that the entry in questionwas not calculated to mislead or deceive anybody, but to leadanybody into a knowledge of the true state of affairs, namely, thatthe amount referred .to had been actually received by the accused;and Jenkins C.J., distinguishing the case from certain cases cited tohim, observed that the entry showed that the postmaster (accused)was liable, and it' was a statement of the .true position of affairs,whereas in the cases cited the accounts were framed in such a wayas to conceal liability and to present an untrue state of affairs.
In the present case, the impeached entry is certainly intended andcalculated to present an untrue state of affairs, namely, that theaccused sold to Philipu Appuhamy, a licensed opium eafer, 400grains of opium on November 28, 1912. The cases cited by thelearned Solicitor-General are more in point, and they afford greaterfacility for arriving at a satisfactory definition of the term 44 fraudu-lently. 44 In Queen Empress v. Abbas Alt,* the Full Court composedof five Judges were unanimously of opinion that deprivation ofproperly, actual or intended, was not an essential element in theoffence of fraudulently using as genuine a document which theaccused knew or had reason to believe to be false; and Maclean C.J.observed:44 The word * fraudulently 4 is used in sections 471 and
464 together with the word 4 dishonestly, 4 and presumably in nsense not covered by the latter word. If, however,4 it be held that
*■ 1 Tomb, (fferieto) 91.* (1909) I. L. R. 30 Col. 950.
* /. L. R. 25 Cal. 512.
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‘ fraudulently ' implies deprivation, either actual or intended, then
Xing v. apparently that word would perform no function which would notA»inoatham have been fully discharged by .the word ‘ dishonestly, ’ and its usewould be mere surplusage so far as such a consideration carriedany weight; it obviously inclines in favour of the view that tfieword * fraudulently * shall not be confined to transactions of whichdeprivation of property forms a part. ”
Sir James Stephen in his History of the Criminal Law ofEngland (ool. //., p. 121) observes: " I shall not attempt, toconstruct a definition of * fraud ’ which will meet every case whichmight be suggested, but there is little danger in saying that wheneverthe words ‘ fraud ' or ' intent to defraud ’ or * fraudulently * occurih the definition of a crime, two elements at least are essential tothe commission of the crime, namely, first, deceit or an intention todeceive, or in some cases mere secrecy; and secondly, either actualinjury or possible injury, or an intent to expose some person eitherto actual injury or to a risk of possible injury by means of that*deceit or secrecy. This intent, I may add, is very seldom the onlyor the principal intention entertained by the fraudulent person,whose principal object in nearly every case is his own advantage.
A practically conclusive test as to the fraudulent
character of a deception for criminal purposes is this: ' Did theauthor of the deceit derive any advantage from it which he couldtint have had if the truth had been known ? ’ If so, it is hardlypossible that that advantage should not have bad an equivalent inloss or risk of loss to someone else, and if so, there was fraud. a* Tnview of these observations, it was held in .the case of Mohamed SaidKhan,1 that when there was an intention to deceive, and by meansof the deceit to obtain an advantage, there was fraud. We have nohesitation in following this decision.
Ih the present case the accused undoubtedly intended to deceivethe Government into the belief that on November 23, 1912, he badsold to Philipu Appuhamy a quantity of 400 grams of opium, andlie thus gained the advantage of having that quantity of opium tobe disposed of, if so minded, unhampered by the provisions of >hcOrdinance.
For the reasons given above, we think that on the facts assumedfor the purpose of the legal argument the indictment can besustained, and we.direct that the trial do proceed.
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