148-NLR-NLR-V-24-THE-KING-v.-SILVA-et-al.pdf
( 408 )
1988*
Present ; Jayawardene J.1THE KING v. SILVA et el.22—D. C. Kurunegala, 5,295r..
Attempt tocheat—Attempt—Preparation—Conspiracy—Abetment—Penal
Code, 88.1109, 40$, and 400.
The first accused, with the object of playing a confidence trickon Hi told him that the second accused was a very wealthy Chattyand that ho was fond of gambling, and that a lot of money couldbe made by playing a game of cards with him. He demonstratedto H that by a certain manipulation of the cards as they were putback in the pack, after they had been dealt out, on the tenth dealanil subsequent deals the dealer would get all the picture cards.
H was asked to take Rs. 20,000. H- learnt subsequently that by:‘extracting one card from the pack, all"tfie"picture cards- would havegone to the other player. The second accused was not a rich man.
H informed the police, and went to the place indicated by thefirst- accused. Before the play commenced, the police arrived 'andarrested the first and second accused. The bags brought by thesecond accused did not contain money, but only pieces, of paper.
The two accused were convicted with attempting to cheat H.
Held, that the acts done by the first accused amounted only to apreparation to commit the offence of cheating, and did not amountto an attempt to commit that offence.
The Supreme Court held that first accused had conspired withthe second accused to cheat, and was guilty of abetment of cheatingunder sections 109 and 403 of the Penal Code.
“ The offence of cheating not having been committed, it seemsto be impossible to deal with second accused under any section ofthe Penal Code.”
“It is most difficult, if not impossible, to form any satisfactoryand exhaustive definition which would lay down for all cases whenpreparation to commit an offence ends, and when an attempt tocommit- that offence begins. In short, the question whether anygiven act or series of acts amounts merely to preparation, or to anattempt which is punishable under section 490, appears to be one offact in each case.”
T HE facts are set out in the judgment.1
H. J. C. Pereira, K.C. (with him R. L. Pereira), for accused,appellants.Akbar, 8.-0. (with him Dias, C.C., and Vythialingam, C.C.), forCrown, respondent.( 494 )
1988.
Me KingSilva
June 8, 1920. Javawardene J.—
'* This cose raises a point of some nicety and difficulty. The twoappellants have been convicted of attempting to cheat one Mr.Hermon, an offence punishable under sections 403 and 490 of thePenal Code. Their appeal is based on points of law, and the main,point argued on their behalf is that the acts of the accused wereonly acts of preparation, and that they had done no acts towards thecommission of the offence of cheating within the meaning of section490 of the Penal Code. The main facts are not in dispute, for inthe District Court counsel for the accused accepted Mr. Hermon’sevidence in its entirety. The first accused is a Sinhalese, andthe second is a Natukottu Chetty. The first accused appears to bea resident of Alauwa in the Kurunegala District. Mr. Hermonis a planter in the Kegalla District. The first accused approachedMr. Hermon about the purchase of a coconut estate, which hesaid a Chetty, who wanted, to leave the Island, wished to disposeof, and which could be bought cheap, as the Chetty was in a hurryto go away. The Chetty, he said, was worth lakhs of rupees, andwas fond of gambling. In the course of his conversation, thefirst accused told Mr. Hermon that he could make a lot of moneyby playing a game of cards with the Chetty. Mr. Hermon askedhim how it could be done, and the first accused demonstrated itwith a pack of cards. Mr. Hermon obtained , for him. I need notdescribe the card trick at length. The betting was to be on thepicture cards of an entire pack of 52 cards. By a certain mani-pulation of the cards as they are put back mwthe‘ pack, *»fter theyhad been dealt out, on the tenth deal and subsequent deals thedealer gets all the picture cards. Mr. Hermon was advised todeal, and not to bet till the tenth deal came on. Mr. Hermonpointed out to the first accused that the whole thing would be afraud on the other party, and amounted to cheating. The firstaccused contended it was not so. Mr. Hermon says that with theobject of entrapping the first accused, he consented to have a gamewith the wealthy Chetty. Mr. Hermon was asked to bring aboutRs. 20,000. On the day fi-xed for the game, Mr. Hermon went tothe appointed spot, a land called Xangalla. He was accompaniedby two of his assistants, who halted in the neighbourhood, and hiskanakapulle Suppiah, to whom he gave a letter to be communi-cated to the Chetty, stating that the latter was going to be cheatedout of a large sum of money, and asking him to see Mr. Hermanon the estate, where Mr. Hermon says he intended to hand overthe money he expended to win to the Chetty. Mr. Hermon wastaken to a building on the land by the first accused, and therefound a chetty lying on a bed with a bag by his side. The Chetty,who was afterwards found to be one Casie Chetty, a kanakapulleof a firm trading at Veyangoda, and Mr. Hermon started the game,and the Chetty began betting beginning with a bet of Rs. 5,000.
.( 496 )
and raising his bide to°Rs. 15,000 when the turn for the tenth dealarrived. Then the Chetty pioduced his bag which appeared tocontain bundles of notes, and asked Mr. Hermon to bet Its. 20,000which he did. The Chetty asked Mr. Hermon where his moneywas, and the latter said he had hot brought any cash, but wouldpay by cheque. The Chetty then said he would not play, exceptfor ready money, and the party broke up. The first accused thentook up the cards, and pointed Out to Mr. Hermon that the nextcard that would have been dealt to him was a picture card, and thathe would have won his bet. Casie. Chetty subsequently saw Mr..Hermon, as requested in the letter, and told him'that the personwho was going to be cheated was not himself, but Mr. Hermon,that he was acting as instructed by the first accused, and' that hisbag contained not money but paper. Mr. Hermon, also, subse-quently learnt that by extracting one card from the pack andmaking the number of cards in it 51 instead of 52, all the picturecards would have gone to the other player and not to the dealer.This appears to be the trick adopted to entrap unwary and con-fiding .players. All this happened in July last year. No charge isbrought against the first accused for his acts on that occasion. InAugust, 1922, the first accused wanted Mr. Hermon to gambleagain, and sent him several telegrams making appointments. Atlast, an arrangement was made to gamble on an estate called** Mount Mary ” at' Narammala on September 6. This time Mr. Her-mon arranged with the police at Kurunegala to surprise the partyat their game. Mr. Hermon went to Narammala resthouse and sentfor the first accused, and told him he would not gamble except atthe resthouse, and refused to go to the bangalow on “ Mount Mary.”The first accused then' hurried up to the estate and returned withtwo Chetties, one of whom is the second accused, in a travelling cart.In the carts were two bags said to contain two lakhs of rupees.The second accused got down from the cart leaving the bags ofmoney with the other Chetty who remained in the cart. Thesecond accused represented himself, and was represented by thefirst accused as a very wealthy Chetty, a brother of Casie Chetty,who took part in the first gamble, and the other Chetty, whosename was Mutu Raman Chetty, was said to be his kanakapulle.The latter remained in the cart in charge of the bags of money.The second accused refused to gamble in the resthouse, and saidthat he was in a hurry to get away by an early motor bus, as he hada large amount of money in his possession. He could not bepersuaded to gamble at the resthouse, where the party were to besurprised by the police, and Mr. Hermon consented to go to thebungalow on “ Mount Mary.” The accused went ahead in thecart, and Mr. Hermon was to follow. The police, Mr. Aitken,Assistant Superintendent of Police, and two constables, arrived inthe meantime, and Mr. Hermon informed them that the gambling
■ins.
Jayawar*DEMIS J.
The King v80*»
1938.
JAXAWAB-
ainnn}.
Th$K%ng*
BOnm
( 496 )
was. to take place at "Mount Mary/’ where it. was arranged■the accused should be arrested. Mr. Hermon went ahead, and he cameto the bungalow on “ Mount Mary/’ but before any play- could begin,i, the pplice .arrived, and the first accused, the second accused, andMutii Raman.were arrested. The 'Chetties were found hiding inthe kitchen.' The bags were found, but they .contained no money. .Only pieces of paper were discovered by the police. ■ It is in respectof the incidents of September 6 that the accused are* charged withattempting to cheat Mr. Hermon. All these acts on the part of theaccused, it is contended, prove only preparation to commit the offenceof cheating, and not an attempt to commit that offence, for nothing.was- done which could be construed as' an act'done towards thecommission of the offence of cheating, that is, in an attempt tocheat. There can be no doubt that the accused intended to practisesome sort of confidence trick on Mr. Hermon. It was not an attemptto cheat the Chetty. The fact that the bags contained no money isconclusive of that. The Crown, however, contends that the accusedhad passed the stages of preparation, and had done acts towardsthe commission of the offence of cheating, and in the indictmenttwo acts are specifiedwas showing that the accused had done so.They are: First that they falsely represented to Mr. Herinon thatthe second accused, Sevugan Chetty, was a very wealthy man, andthat Mutu Raman Chetty was his kanakapulle ; and, secondly,that Mr. Hermon could win a large sum of money at a game of cardshorn the second accused. The question I have to decide is whetherthe contention for the Crown is correct, that the acts attributedto the accused, and admittedly done by them, were acts done to-wards the commission of the offence under section 490, and hotmerely preparatory acts as contended for by the accused.
Several English, Indian, and local cases were cited at the argu-ment. The English cases are not very helpful, as the English lawrelating to attempts to commit offences, which is not based on anystatutory enactment, appears to differ from the law enacted in theIndian and local Penal Codes. The Indian decisions, if they laydown any guiding principles, would be useful, as section 490 of ourCode is identical with section 511 of the Indian Penal Code. Noprinciple can, however, be gathered from the Indian and localdecisions. On the other hand, it has been stated by eminentJudges that it is most difficult, if not impossible, to form anysatisfactory and exhaustive definition which would lay down for allcases when preparation to commit an offence ends, and where anattempt to commit that offence begins. In short, the questionwhether any given act or series of acts amounts merely to prepa-ration, or to an attempt which is punishable under section 490,.appears to be one of fact in each case.
So, it is necessary to decide whether, on the facts of this case,considering the nature of the cheating which the accused intended
( 497 )
to praetiae on Mr. Hermon, the acts, attributed to the accused andproved to have been committed by them, are acts done towards,tiie commission of the cheating contemplated by them. The.cheating was to take place in the course of a game of cards. "Nowcheating .as defined in “the Penal Code consists of two elements^XI) a deception practised on a person and (2) the inducement todeliver property or to do certain other acts. If, therefore, anattempt is made to deceive the person intended to he cheated, itwould be sufficient to constitute the doing of an act towards thecommission of the offence. In tbe present case the " essence " ofthe deception was to make Mr. Hermon believe that he was playingwith a pack of 52 cards. If a single card was extracted from thepack, and the number of cards reduced to 51, or if a pack containingonly 51 cards was used in the game, a deception would have beenpractised on him. This is the deception, which, according to theevidence in the case, is practised on persons induced to play thisgame. I am, however, not quite satisfied that we are in possessionof all the particulars of the trick which was to be practised on Mr.Hermon. Whatever that may he, the above, however, is what theevidence for the prosecution has established. Now, accordingto the indictment, the accused have done two acts towards thecommission of the offence: First, they falsely represented that thesecond accused was a very wealthy Chet-ty with a kanakapullecalled Mutu Raman under him; and second, that Mr. Hermoncould win a large sum of money at a game of cards from the secondaccused. Considering the nature of the deception that was to bepractised on Mr. Hermon, can it be said that these acts, or eitherof them amount to an act done towards the commission of thedeception; I am inclined to the opinion that they do not amountto such au act. If we take a more simple example, the positionmight be better illustrated. Suppose A and B wish to induce Cto break into D’s house, their real intention being to.break intoC's house in his absence. For the purpose of inducing C to committhe housebreaking, they falsely represent to him that D is a veryrich man, and that in his house there is a large quantity of valuableswhich C could steal. C, becoming aware of the intention of A andB to have his house broken into, before going to break into D'shouse, places guards near his house. When A and B, armed withhousebreaking implements, approach C's house, they are seized bythe guards. Can it be said that A. and B are guilty of an attemptto commit housebreaking ? If A and B bad attempted to open adoor or window, or to bore a hole in a wall, they would have done anact towards the commission of the offence of housebreaking. Untilthen, can it be said that they had passed the stage of preparation ?So here, too, if the deception to be practised on Mr. Hermon is asstated by the prosecution, can it be said that until a card wasabstracted from the full pack of 52 cards, or a pack containing 51
1928.
Jayawab-dbM J.
The King «r.Ottim
( 496 )
1988. cards bad been handed to Mr. Hermon, or even before the gameJayawak- -jad commenced, an act bad been done towards the commisSionofDBtra j. the offence of deceiving him and ihduQing him to deliver property ?
Th* K$ng v ^ ^ offence attempted to be committed had been to induce Mr.fitilra * Heimon to lend 'money to the second accused, or to enter intoany contract of .a similar nature, the false representation that thesecond accused was a wealthy man—while he was in fact a pauper-^-would have had a direct tendency to deceive him, or would haveamounted to the deception itself. As to the statement that Mr.Herxnon could win a large sum of money from the second accusedat a game of cards, I fail to see how this could be regarded as anact done in the attempt to deceive or cheat, although it was urgedas an inducement to him to join in the game of cards. The act neednot be the penultimate act, but I incline to the opinion thut theact must be done in the attempt to commit an offence. Aa pointedout in the commentaries on the Penal Code, it is not always easy tosay whether an act amounts to an attempt or is merely preparation,but I doubt very much whether the acts referred to in the indictmentare acts done towards the commission of the offence of cheatingin the very peculiar oircumstances of this cage. They appear tome to be acts done in planning and arranging for a deception orcheating, but not acts done towards the commission of the offencein the attempt to commit it.
The learned Solicitor-General relied strongly on the case of 7nthe Matter of the 'Petition of MecCrea.1 That was also a case in whichthe accused was charged with attempting to cheat under section511 of the Indian Penal Code which corresponds to section 490 ofthe Ceylon Code. There the accused attempted to obtain deliveryof u Government promissory note as the property of one Asad AliKhan, deceased. The deception the accused had to practise wasto convince the person holding the note that the note was the pro-perty of Asad Ali Khan. The note was in fact not the propertyof Asad Ali Khan, but of one Muhamid Asad Ali Khan. Withthis object the accused did certain acts, and the acts done, asBlair J. said, “ were acts bearing and intended to bear upon themind of another person. These acts having been done, that mindwas left to operate. If, therefore, that which was done amountedto the commission of an act towards deceiving in & case where suchdeception would operate as an inducement to the person deceivedto deliver any chattel or to do or omit to do any of the thingsmentioned in section 415 (396), then I think within the meaning ofseotion 511 read together with illustration (a) an attempt to deceive,and thereby induce within the meaning of that section, has beenproved in this case." There the deception was to bring about acertain conviction by operating on the mind of the person soughtto be deceived, and the acts done by the accused were held to have
1 {1893) 18 AU. 173.
( 499 )
been done with that intention. But here the deception was not toproduce a certain impression on the mind and thus induce thedelivery of property, but to practise a deception in the course of ftgame of cards. No doubt, for the purpose of induoing the personto join in the game of cards, certain false statements had to bemade, but these statements formed no part of the deception itself,and did not tend directly towards the deception.
If, as I have said above, the object of the accused had been to''induce Mr. Hermon to lend money to the second accused, thenthe false representation that the. second accused was a wealthyChetty would have been intended to operate on the mind of Mr.Hermon so as to lead him to do an act which he would not havedone if the false representation had not been made, and there wouldhave been an attempt to deceive him, and the false representationwould have tended directly to induce the deception, and would thusamount, to an act done towards the commission of the offence.But where the acts were done with a view to inducing,. Mr. Hermonto join in a game of cards, at which the deception was to be practised,I fail to see that the acts can be said to be done in the attempt topractise the deception. The deception sought to be practised inMacCrea’s case is certainly different from thie deception contemplatedhere, and the reasoning there can have no application to the presentcase.
In the local case of The King v. Jeeris Appu,1 which is also a caseof attempting to cheat, the facts are not given fully in the report,but according to the judgment the first accused proposed to thecomplainant* the shroff of the Kandy Kachcheri, that he shouldcirculate counterfeit notes which he said the second accused couldmake. The. complainant informed the police, and the accused wereled on. The first accused brought the second accused to the com-plainant, and an exhibition of what was said to be the method wasgiven. Finally, the accused proposed that the complainant shouldobtain 600 ten-rupee notes from the Kachcheri and bring them to theaccused. The complainant agreed. The next morning the firstaccused again saw the shroff, and inquired whether the noteswould be ready.* Later the same day both accused went to theshroff, and a day was fixed, but before it arrived, the police arrestedthe accused. Ennis J. held that there were several acts of prepa-ration, but the request for 600 notes passed from preparation toattempt. After that the offence would have been completed bydelivery of the property. The learned Judge, in the course of hisjudgment, observed: “ To prove the offence punishable under section490 of the Penal Code, it is sufficient to show that an act has beendone towards the commission of. the offence in the attempt tocommit it. In order to distinguish between an act of preparationbefore th* attempt and an act towards the commission of’ the
1 {1918) 5 G. W, J*. 271.
tm.
Jatawis-omn J.
The King v.Silva
( 600 )
1088.
Javawar-D8HB J.
The King n,Bttva
offence in an attempt to commit it, the definition must be looked at.Some offences '• consist of a single act (criminally intended), othersof a series of such acts. The offence of cheating come under. thelatter category. Section 398 defines it . .A . The offencebegins with inducement by deception. The act of deceitful induce-ment forms part of, the series of acts which would constitute the/Offence, and an inducing by deceit to the end that the offence ofchesting may be committed is an attempt to cheat." There, too,it will be seen that the deception consisted in bringing certain factsto bear on the. mind of the person sbught to be deceived—nothingelse had to be done. The operation of these facts on the mind wasto result in his being induced to part with his property, and so therequest for the 600 notes was held to be an act kin the attempt tocheat. The shroff pretended to the accused that their statementsand exhibition had operated on his mind, and that he was con-vinced that the accused were able to perform what they had suggested,that is that he had been deceived. The request for the money wasmi attempt to obtain delivery of the property. It is to be notedthat the learned Judge did not hold that the statements of theaccused, that they could counterfeit notes, or that the exhibitionthey gave, were acts done towards the commission of the offence.He was inclined to regard them as merely preparatory acts. Perhaps,,it was not necessary to consider whether these acts amounted toacts done towards the commission of the offence, as the accusedhad gone a step further and actually asked for the delivery of theproperty, that is, the money. I need not refer to the other cases.But, as I find that the accused intended to cheat Mr. Hermon, thequestion remains whether the first accused did not conspire withthe second to cheat Mr. Hermon. In many cases when more than oneperson joirT in a conspiracy to commit an offence, and acts are donein pursuance of such conspiracy, such acts although mere acts ofpreparation which have not reached the stage of an attempt, theconspirators have been found guilty of abetment. (See The King-Emperor v. Padala Vandikatu&wami 1 and The King-Emperor v.Bagunath.* Now, under the Penal Code, section 100, a person issaid to abet the doing, on a thing who, “ secondly, engages in anyconspiracy for the doing of that thing," and explanation 2 to thesection says; “ A conspiracy for the doing of a thing is when two ormore persons agree to do that thing or cause to procure that thingto be done."
From the facts which I have set out above there is proof, bothample and clear, of a conspiracy between the two accused to cheatMr. Hermon. The corresponding section of the Indian Penal Code,section 107, is different from our section, and requires that an actor legal omission should take place in pursuance of the conspiracyand in order to the doing of the thing. If such an act is required
l{1881) 8 Mad. 4.1 (J88S U nr sported Criminal Cases, Bom. 470.
( 601 )
under our law, too, there is proof of several acts done in pursuanceof the conspiracy and in order to carry out the object of the con-spiracy. On the evidence in the case, therefore, I find that the-first accused conspired with the second accused to cheat Mr. Hermon,and he is guilty of abetment of cheating under sections 109 and 403of the Penal Code. The conviction of the first accused of abettingthe second accused to cheat Mr. Hermon raises a difficulty withregard to the conviction of the second accused. The offence ofcheating not having been committed, it seems to be impossibleto deal with the second accused under any section of. the Penal Code.In India this omission has been made good by the addition of certainsections included in chapter V. a of the Penal Code, These sectionsTender all .persons, principals and accessories, engaged in a con-spiracy, guilty of an offence. These sections have not been addedto our Penal Code. Therefore I am compelled to allow the appealof the second accused. This, however, is not a matter for muchregret, as the second accused is a pauper picked up by the firstaccused from the highway, and made to pose as a wealthy Chetty.The first accused is the principal offender, and, evidently the onlyperson who stood to benefit by the cheating.
I alter the verdict, and find the first accused guilty of abetmentof cheating under sections 109 and 403 of the Penal Code. Thesentence of one year’s rigorous imprisonment passed on him isconfirmed. The second accused is acquitted.
I regret that absence on circuit has delayed the preparation ofthis judgment.
1088.
Javewab-DSDEVB J.
The King v.SUva
Varied.