HOWARD C.J.—Zahir v. Cooray.
1941Present: Howard C.J.
ZAHIR v. COORAY.690—M. C. Panadure, 8,382.
Cheating—Charge as set out discloses no offence—Proof of different manner ofcheating—Conviction bad—Criminal Procedure Code, ss. 171 and 172.Where in a charge of cheating, the manner of cheating set out in thecharge did not in law constitute the offence, the charge would be insuffi-cient to sustain a conviction although a sufficient manner of cheating hasbeen proved.
Welakka v. Deyonis Appuhamy (.8 S. C. C. 56) followed.
^ PPEAL from a conviction by the Magistrate of Panadure.
G. P. J. Kurukulasuriya, for the accused, appellant.
M.M. I. Kariapper, for the complainant, respondent.
Cur. adv. vult.
January 28, 1941. Howard C.J.—
In this case the appellant was convicted and sentenced to pay a fine ofRs. 200 in default three months’ rigorous imprisonment for cheating incontravention of section 400 of the Penal Code. The charge was wordedas follows : —
“ Intentionally deceive A. A. M. Zahir, Manager, Razesna Stores,Panadure, by tendering in payment of sundry goods purchased by youduring the month of April, 1940, cheque No. 0540 of the 15th May,1940, drawn by you on the Bank of Ceylon, Colombo, for Rs. 130 andthereby induced the said A. A. M, Zahir to enter up payment of yourApril account in the said A. A. M. Zahir’s books which cheque wasdishonoured by the Bank on the 22nd May, 1940, as you had closedyour account in the said Bank, and that you thereby committed anoffence punishable under section 400 of Chapter 15 of LegislativeEnactments. ”
The offence of cheating is defined in section 398 of the Penal Code. Inorder to establish such an offence it must be proved that the deceit inducedthe person deceived to do or omit to do something which he would not door omit if he were not so deceived and which act or omission causes or islikely to cause damage to that person in body, mind, reputation orproperty. In this case it was alleged that the deceit of the appellantinduced the complainant to enter up payment of the appellant’s Aprilaccount in his books. It was not established that such entering up ofpayment had caused or was likely to cause damage to the complainant.
1 20 N. b. R. 44.
HOWARD C.J.—Zahir v. Cooray.
The Magistrate in his judgment, realizing that the charge as framed didnot disclose an offence, agreed with Counsel for the appellant that it wasdefective. He held, however, that an offence under the section ofcheating” had been established inasmuch as the complainant in hisevidence had stated that as the result of receiving the appellant’s chequehe was induced to give further goods on credit, a thing that he wouldnever have done but for this dishonest inducement. The Magistratefurther held that such giving of further credit had caused definite damageand harm to the complainant. He was, moreover, of opinion that thedefects in the charge had been cured in terms of section 171 of the CriminalProcedure Code. In this connection he stated that he was satisfied thatwhat had happened at the trial of this case was exactly what is contem-plated in illustration (b) to this section. There is no doubt that theevidence did establish the commission of the offence of cheating and theonly question that arises is whether the defects in the charge are curableunder the provisions of section 171. It would appear that such defectswere not apparent to the parties and the Magistrate until the latter hadembarked on the preparation of his judgment. Otherwise it is difficultto understand why the charge was not amended under section 172.There is ho doubt the words of section 171, with its illustrations, are verycomprehensive and designed to ensure that technicalities shall not impedethe due and efficient administration of justice. Having regard to thefact that the case was contested on the assumption that the appellanthad to'meet the charge as originally framed, I do not think it can be saidthat he has not been misled by the error in stating the particulars. I am,however, further fortified in the opinion I have formed by the decision ofBurnside C.J. in Welakka v. Deyonis Appuhamy *, when the point atissue in this case was decided. In the course of his judgment the learnedChief Justice stated as follows : —
“ Then, if the manner is set out, as in the present case, and disclosesthat no cheating took place, is such defect covered by the illustrationto clause 200, which I have already quoted—* If the charge is set outincorrectly the Court may treat it as immaterial ? ’ I think not. ButI have not arrived at the conclusion without much consideration. Ithink the word * incorrectly ’ means incorrectly as to the fact, but notas to the law, i.e., that the manner of cheating set out in the charge maybe different from the manner of cheating proved; not that the mannerof cheating set out may not constitute the offence * to cheat ’, or, inother words, a charge would be good, although the manner in which thecheating was effected, as stated in the charge, varied from the mannerproved, if, nevertheless, it constituted the offence to cheat; but acharge would be bad and insufficient to sustain a conviction whichstated a manner of cheating which did not in law constitute the offence* to cheat ’, although a sufficient manner of cheating had been proved. ”On the authority of this judgment I, therefore, hold that the chargecould not be cured under the provisions of section 171. I, therefore,quash the proceedings and remit the case to be tried by a differentMagistrate on a new charge of cheating.
* 8 S.C. C. 56.
ZAHIR v. COORAY