REX v. PERIYATAMBY

097-NLR-NLR-V-05-REX-v.-PERIYATAMBY.pdf


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1902:
May 28.
REX v. PERIYATAMBY.Forgery—Sale of cart by complainant to accused—Payment of price byaccused—Non-delivery of cart to accused—Removal of cart by accusedby forgery of authority to deliver it to him—Penal Code, ss. 452,453—False document.
Where the accused bought a cart of the complainant and had paid ,.itsprice, but did not obtain delivery of it because it was left by the com-plainant in the custody of a third party, and when the accused forgedthe signature of the complainant to a letter purporting to be anauthority to deliver the cart to the accused,—
Held, that the letter was not a false document within the meaningof sections 452 and 453 of the Penal Code.
M
IDDLETON, J., who presided at the Batticaloa sessions ofthe Supreme Court in April, 1902, submitted a question
of law for the consideration of two or more Judges of theHonourable the Supreme Court, under the terms of section 355of the Criminal Procedure Code.
The ease stated by His Lordship was as follows: —
“1. The accused was tried before me .and an English-speakingjury on an indictment charging (1) that on or about the 12thAugust, 1901, at Vetaltuchenai in Mandoor in the division of Kal-munai. Batticaloa District, he did forge a certain document, to wit.a letter purporting to be an authority to deliver movable property—to wit, a cart—to him, purporting to be signed by one ChittiyarKandappen,therebycommittingan offence punishableuuder
section 456 of the Criminal Procedure Code; and (2) that at thetime and place aforesaid he did fraudulently and dishonestly useas genuine the aforesaid forged document, well knowing or havingreason to believe at the time he so used it that the said documentwas forged,therebycommittingan offence punishableunder
sections 456 and 459 of the Criminal Procedure Code.
“ 2. Thefacts were that theaccused bought a bullock cart
from the prosecutorfor Rs. 25,and, according to thelatter’s
account, only paid Rs. 16.25.
“ 3. The prosecutor, not being paid in full, took the cart awayfrom the accused and handed it over to a man named Kadramer-podi Ithanataiyapodi, who is a witness.
“ 4. The same day accused came to this man’s wife andproduced a paper, purporting to be signed by the prosecutor,ordering the delivery of the cart to him (the accused).
"5. The woman delivered the cart and afterwards informed theprosecutor, who deposed that the signature to the paper was nothis.
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“6. Two other witnesses identified the paper as that used bythe accused, and he himself admitted writing it in his statementto the -Magistrate,- which was put in evidence.
“ 7. The accused gave evidence, and, as also in his statement,alleged that he had paid for the bullock cart entirely, partly incash and goods, as admitted, and partly in work for the prosecutor.
“ 8. I drew the attention of the Crown Counsel to the questionwh’ether, assuming that the cart had been entirely paid for, theoffence of forgery had been committed under section 452; hesubmitted that the wording was wide enough to cover the case inquestion.
“9. I directed the jury that even if they thought that theprosecutor had been paid in full when he deprived the accusedof .the cart, yet that the accused had made a false documentwith an intent covered by section 452, which would constituteforgery, and so bring him within the terms of the charges laidin the indictment.
* 10. The jury found the prisoner guilty on both counts unani-mously, but the foreman, on behalf of the jury, recommendedhim for a lenient sentence, on the ground- that the majority of sixto one were of opinion that the prosecutor had been paid in fullfor the cart by money and work done by the accused for him.
“ 11. Personally, I did not think that this was proved to be so.
“12. I sentenced the man to three years’ rigorous imprisonmenton each count concurrently, informing him that I should reserve,for the opinion of the Supreme Court, the question whether I wasright in directing the jury that the offence of forgery must bedeemed to have been committed if the accused made a falsedocument with a view to obtain his own cart from the personentrusted with it by the vendor resuming possession on a claimof non-payment of the entire price.
“ 13. I now submit for the opinion of two or more Judges ofthis Honourable Court the question whether I was right indirecting the jury as in paragraphs 9 and 12 hereof.
“14. I enclose a copy (1) of my notes of evidence, (2) of the war-rant of commitment, (3) the original record in the Magisterial Court!
“ 15. The accused was undefended.”
The case came on for argument before Moncreiff, A.C.J., andWendt, J., on the 28th August, 1902.
Vanderwall, for the accused.—The charge was, one of forgeryunder sections 456 and 459. The document in question was nota false document within the meaning of the Code. It must bedishonestly or fraudulently false. He is said to have imposedupon the custodian of the cart, but it caused him no. wrongful loss
1902.
May 28.
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•1002.(Z. L. B. 10, Calcutta 584). The terms of section 456 clearly show
May 28, that the intention must be proved to have been to injure. Ingetting back his own property, the accused injured no one.Maine, section 682, p. 754, (edition of 1896), says on “ FraudulentIntent “Of course there can be no intention to defraud where“ no wrongful result was intended or could have arisen from the
“ act” It has been held, too, that it is not forgery to erase
the wrong number in a deed and insert the right one, because*noinjury is done to anybody by so tampering with the deed. It hasalso been held that it is not forgery to fabricate receipts for rent,and even to put the landlord’s signature to them, in order to replacegenuine receipts lost. The principle is clearly that there is nodishonesty or fraud where there is no wrongful loss or wrongfulgain or any injury done or intended.
Loos, C.C., for the Crown—A man may forge in respect of hisown property just as much as he may commit theft in respect ofhis own property. Suppose the complainant had pawned this cartwith the custodian, and suppose the accused had stolen it;that would have been theft. If the accused had a right to the carthe would have goneto law; instead,hehas trickedthe keeper
out of the cart bothfraudulently anddishonestly.Sofar as the
caretaker was aware, the cart was the property of the complainant,and he was defrauded into handing it to accused on the pretencethat the accused was acting for the complainant. [Wendt. J.—You use “ defraud ” as a synonym for “ deceive. ” Does it notjmply more?] There is wrongful loss here. For might vve know,the caretaker may have to pay the complainant. The right to thecart is a matter for the complainant and the accused to settlebetween themselves.Its removal isawrongfulloss, which is
defined as loss byunlawful meansofpropertytowhich the
person is legally entitled. The caretaker, was legally entitled tothe custody of the cart, and he has been deprived of that custody.Had the complainant and the accused both claimed the cart, thecaretaker would have been bound to interplead. It has been heldthat it is not absolutely necessary that anybody should bedefrauded (Ameer Ali and Woodroffe on Evidence, p. 103). Iffraud be proved, it is immaterial what the intention is. Herethere was fraud,—false representation that he was agent of com-plainant, and that the letter was written by complainant.
28th May, 1902. Moncrkipf, A.C.J.—
The accused bought a cart from the complainant. He says hepaid the full price in cash and labour. The complainant saysthat he did not pay the balance of the price, and so he (the
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complainant) took the cart back from him in the presence of theaccused and some arbitrators. He says also that he gave the cartto a certain man and left it with him for safe keeping. There-upon the accused wrote a delivery order, purporting to comefrom the complainant, for the delivery of the cart to bearer. Iuthat way the accused became once more possessed of the cart.He was chafged under sections 456 and 459 of the Penal Code withforging the delivery order and fraudulently and dishonestly usingit as genuine. The Judge, in summing up the matter to the jury,directed them that even if they thought that the complainant hadbeen paid in full, the accused, when he took back the cart, hadmade a false document within the meaning of section 452 of thePenal Code. In terms of that direction the jury returned averdict of guilty on both counts by a majority of- six to one, audgave it as their opinion that the prosecutor had been paid in full.by cash or work done for him by the accused. Now, was thisdirection right?
The-first question is,-whether the accused forged this document.He did so, if he made, in terms of section 452 of the Penal Code,a false document to cause- some person to part with property.Section 453 provides that a false document is made by one whodishonestly or fraudulently makes it. And therefore we are todiscover what the meaning of falsely or dishonestly is. TheCode has provided what seems to me a very clear and unmis-takable interpretation of these words. From section 23, it appearsthan a man does a thing fraudulently w'hen he does it with intentto defraud, and not otherwise. Now', the word “ defraud is a wordas to the meaning of which I have a very clear opinion. It impliesthe infliction of some kind of loss upon the person defrauded. Itis not mere deceit. And if I am asked w’hether the accused in thiscase intended to inflict some loss upon either the prosecutor- or thecustodian of the cart, I must say that I do not think that he did:
Then there remains the question whether the act was donedishonestly, and that by section 22 means whether he -did* the actwith the intention of causing wrongful gain to himself or wrongfulloss to some other person. Here, again, we have to come back tosection 21 for the definitions of “ wrongful gain ” and “ wrongfulloss. ’ ’ Wrongful gain would have been aimed at in this case ifthe accused, by unlawful means, had attempted to gain propertyto which he was not legally entitled; and wrongful loss he wouldhave inflicted if, by unlawful means, he had deprived some personof property to which the accused was not legally entitled.
Now, the passage in the Judge’s direction assumes that theproperty in this case was the property of the accused. There is
1002.May 28.
tfoXCBBOT,
A.C.J.
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1902.
May 88,
Moncreiff,
A.G.J.
no doubt that the accused practised a deceit, but could it be saidthat the cart which he recovered was property to which he wasnot legally entitled?The Judgeassumesthathe is legally
entitled to it, that hehas paidforit-; and the juryfound that in
their opinion he hadpaid forit.In myopinionthe evidence
does not show that the accused did this act intending to causewrongful gain or wrongful loss.
For these reasons I think that- the direction was wrong, andthat the conviction should be set aside and a verdict of acquittalentered and the prisoner discharged.
Wendt, J.—
I am of the same opinion. It was suggested during theargument, on behalfof theCrown, thattherepossibly were
relations between the complainant and the custodian of thecart, which gave the latter an interest in the custody of the pro-perty, and that the deprivation of that interest might amountto “ wrongful loss ” within the definition under section 22 ofthe Code. But there was no evidence of any such special relation,nor of the prisoner having a knowledge of it at the time he madethis document. So that relation could not have entered into thequestion of his intent in doing the act charged. If the prisoner,having paid the full price, had become entitled, as against thecomplainant, to the possession of the cart, he could not be said tohave caused wrongful loss by taking. possession of it. I have feltmore difficulty in connection with the word “ fraudulently,”which occurs in section 453 as an alternative to ” dishonestly.”But I agree with my Lord the Chief Justice that something moreis implied in defrauding a person than merely deceiving; thatthere must be a contemplation of actual loss. Applying that testto the facts in this case, it cannot be said that the prisoner bygetting possession of what he believed to be, and what reallywas, his property, defrauded the person who had sold it to him orthe person who was keeping the cart for the complainant. I agreein the order that has been proposed by the Chief Justice.
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