P L D 1958 (W (PLP)

This order will dispose of two revision applications, namely, Criminal Revision Application No. 153 of 1957 and Criminal Revision Application No. 186 of 1957. These are connected matters and the points agitated in both the applications are the same and raise a common question of law. In Criminal Revision Application No. 186 of 1957 both the counsel and the petitioner are absent. In the other revision application, however, Mr. Muhammad Ali Syed has appeared and contested the validity of the conviction of the petitioner. The petitioners were convicted by Mr. S. M. Owais, Magistrate First Class, Karachi, under section 420 read with section 511, P. P. C. to undergo R. I. for a period of 18 months and a fine of Rs. 100 each, or in default to undergo R. I. for a further period of six months. The matter was taken up in appeal to Mr. A. G. Muhammadally, the then Second Additional Sessions Judge, Karachi, and was dismissed by the judgment, dated 19‑2‑1957. The matter has now come before me in revision, and the only point urged by the learned counsel for the petitioner is that the facts found in this case do not bring it within the purview of S. 420 read with S. 511, P. P. C. and therefore the conviction is illegal. The facts out of which the present petitions have arisen are that the applicants pretended to know the art of doubling the currency notes and got in touch with the complainant in May 1957 at a restaurant opposite `Jung' office. They took him to Clifton Seashore and applicant Niaz Muhammad used certain chemicals and carried out certain other processes to double a ten‑rupee currency note. On the successful performance of doubling a currency note, the applicants asked the complainant to bring three or four thousand rupees, so that a good amount of money maybe doubled and they may become rich. Complainant made considerable efforts to arrange for the money. His father- in‑law told him that a fraud is being played on him and the police should be informed. A trap was laid. The police gave two bundles to the complainant, both of which had one genuine note of Rs. 10 on either side, and one of them contained 98 blank paper sheets of suitable size in between, and the other had 48 such sheets. The S. I. P. also gave to the complainant one spare genuine note of Rs. 10 and instructed him first to give that particular Rs. 10 note to the accused person and to hand over the bundle containing larger number of notes later on. According to the arrangements the applicants and the complainant met on the date of the occurrence at 12 noon in Quarter No. 66/G. Tunisia Lines for doubling the currency notes. The complainant as directed gave the two loose notes and the two bundles containing four currency notes of Rs. 10 each. The two accused took these bundles and each kept one bundle in their pockets. They then began their operations on the loose notes. Immediately there after the police appeared on the scene. They caught the two accused red‑handed when they were just dipping the loose notes in water mixed with some chemicals therein. The persons of the applicants were also searched and from their possession the two bundles were recovered. Some burnt up paper, white blank papers, enamel plate, and chemicals etc. were recovered. Both the subordinate Courts on these facts have come to the conclusion that the applicants, by dishonestly inducing the complainant to deliver a sum of Rs. 1,500 on the false representation of doubling the ten‑rupee notes, have committed an offence under section 420 read with S. 511, P. P. C. The learned counsel for the applicant has strongly urged that on the facts established on the record, it cannot be held that the applicant is guilty for the offence of cheating or attempt to cheat. According to him the evidence only shows that the applicants were only making preparation to commit an offence. It had not reached the stage of attempting and never reached the stage of committing the offence. He also pointed out that the essential ingredients of the offence of cheating namely (a) deception of any persons and (b) fraudulently or dishonestly inducing that person to deliver any property to any person, were lacking in the case under consideration. He further contended that there was no question of deceiving any person as the complainant was aware of the bad intention of the applicants and also knew that the applicants will not be able to double the notes, and had no chance of his losing the money handed over to them. In fact, the learned counsel urged that because the complainant was responsible and party to the laying of trap against the applicants the question of committing an offence under S. 420 read with S. 511, P. P. C. does not arise at all. The learned counsel also urged that there is no proof on the record that if the applicants failed to double the notes, the money handed over to them would not be returned and it should not be assumed that the applicants were not capable of doubling the notes. In my opinion there is no substance in the contention raised by the learned counsel for the applicant. There is no doubt in my mind that the applicants made false representations to the complainant of doubling the currency notes. In order to induce the complainant, they took him to Clifton and gave an exhibition of their so‑called expert knowledge. They asked the complainant to bring larger amounts for doubling the notes. It was at their suggestion that the complainant produced more money at an appointed place, which was pocketed by them. In order to practice cheating on the complainant, the applicants also brought certain paraphernalia to make a show that they had assembled at Jacob Line quarter for the purpose of doubling notes by some artificial contrivance or magical performance. It appears to me that all these acts may fall short of the offence of cheating but by no stretch of imagination it can be held that they were not acts towards the commission of an offence. There is no doubt in my mind that all the above acts were attempts to commit an offence under S. 420, P. P. C. and falls under S. 511, P. P. C. The mere fact that the complainant was aware of the deception; that he knew that the currency could not be doubled and that he was a party to the trap laid against the applicants will not take q away the above‑mentioned facts outside the said provisions. What is to be seen is the intention of the offenders and the steps taken by them towards the commission of the offence and not the intention of the person likely to be affected. The facts proved in this case clearly show that the applicants had passed the stage of preparation and were about to commit the offence but could not complete it for reasons beyond their control, namely the intervention of the police. I am fortified in my view by a decision of Oudh Chief Court referred in the judgment of the Appellate Court reported in Emperor v. Ragunath (A I R (1941) Oudh 3 = 41 Cr.LJ 881). The learned Judge of the Oudh Chief Court, in a case in which the accused were also challaned for practicing fraud to double the notes, held :‑ "That although an offence of cheating was not actually committed, there was an attempt to deceive and the mere fact that the Sub‑Inspector did not hand over the notes because he was deceived but merely because he wanted to secure the accused's conviction, did not change the legal position in regard to the accused's guilt. The accused clearly went beyond the stage of preparation when he tried to induce a person to hand over notes to him on' the assurance that he could double them and did an act towards the commission of the offence of cheating. It is not necessary that the accused should complete every stage in the actual offence except the final stage. In these circumstances the accused could be convicted under S. 420 read with S. 511 of the I. P. C.". This question was also considered in another decision reported in Ram Nath and another v. State (A I R 1951 M B I00). The learned Judge in that case held :‑ "that as the complainant knew the falsehood of the pretence the accused could not be convicted of the offence of cheating. But making false pretence and asking for currency notes were in themselves sufficient for holding the accused guilty of the offence of attempt to cheat". The learned counsel, for the applicant has, however, invited my attention to a decision reported in Raman Behari Roy v. Emperor (I L R 50 Cal. 849). In that case the learned Judges of the Calcutta High Court were considering the case of a 'person who sent an insurance cover purporting to contain Government currency notes which was found to contain only a letter advising the despatch of notes and pieces of waste paper. They held that the person concerned cannot be held to be guilty of cheating as it was difficult to say that the person deceived has been induced to deliver any property to any other person or to consent that the said other person should retain any property or that the person deceived has been induced to do or omit to do anything which he would not have done or omitted, if he were not so deceived, and which act or omission has caused, or was likely to cause damage or harm to that person in body, mind, reputation or property. According to their opinion all that the person deceived has been induced to do was that he has signed a receipt acknowledging the delivery of a cover. He has not acknowledged by that the receipt of any sum of money alleged to be contained in the cover. I have carefully read this judgment. Fortunately in this case the arguments of the counsel of the parties are also reproduced. They show that the learned counsel for the Government has practically conceded that the conviction under section 417 could not be maintained and merely contended that it should be altered to S. 417 read with S. 511, I. P. C. This case is already dis tinguishable as the learned Judges did not invoke and consider the provision of S. 511, P. P. C. The contention of the learned counsel for the applicant that there is no reason to assume that the applicants would not be able to double the notes is also irrelevant for the consideration of this matter. The case of taking large number of photographic copies has no comparison with a case where a false representation to double the notes is made. The applicants are neither gifted with super‑natural powers nor are possessed of heavenly gifts, and it is inconceivable that they would have been able to double the notes by any magical performance or contrivance. In this light it is also difficult to swallow the argument that the applicants were simply playing a joke and would have returned the money. The evidence on the record on this point is definitely against the applicants. On a careful consideration of the points raised before me, it is obvious that the applicants in the present case were not at the stage of preparation for the offence, but have gone far beyond it' and have taken such steps which are in the nature of making an attempt to commit an offence under S. 420, P. P. C. It was also urged before me by the learned counsel for the applicant that there was no question of deception in the present case as the complainant was aware that the applicants' representations were false and, therefore, he could not be deceived, defrauded or deprived of any property. This aspect of the case was also discussed in both the Oudh and Madhya Bharat cases, and there is abundant authority for the proposition that even if the person going to be cheated is ‑aware of the deception or has been responsible for laying down a trap against the accused, that would not in any way affect the guilt of the offenders and would not lessen their responsibility and take their case outside the scope and purview of S. 417 read with S. 511, P. P. C. The learned counsel lastly urged that the offence in this case falls within S. 417, P. P. C. and, therefore, the sentence awarded should have been half to the one mentioned in S.

417. This argument also is without force as in this case the complainant has parted with valuable property and the applicants have received the same. Therefore, the case clearly comes within the purview of S. 420, P. P. C. In the view that I have taken of the matter, the conviction of the applicants sunder S. 420 read with S. 511, P. P. C. is, perfectly correct and I see no reason to interfere with the view taken by the subordinate Courts. The applications are dismissed. The applicants are on bail. Their bail bonds are cancelled. Non‑bailable warrants to issue against the applicants to undergo the remaining portion of their sentences. K. B. A. Applications dismissed.