P L D 1961 Dacca 506 (PLP)

This Rule has been issued at the instance of the petitioner who has been convicted under section 419 of the Pakistan Penal Code, and sentenced to suffer rigorous imprisonment for six months, as also to pay a fine of Rs. 500, or in default, to suffer further rigorous imprisonment for one month. The charge as framed against him was as follows "That you from the January 1953 to the 12th April, 1957 at Dacca District Board, Sutrapur P. S. cheated P. W. 2 representing yourself to be Syed Mozkarul Huq, and fraudu lently induced delivery of Its. 77 per month by P. W. 2 which caused damage to the said P. W. 2 Health Officer, Dacca District Board in property."

2. According to the prosecution, one Syed Mozharul Huq applied to the Chairman, Dacca District Board on the 26th of December 1952 for the job of a Health Assistant, and secured the appointment, but the petitioner Syed Mosharaf Hossain his elder brother, joined the post on the 4th January 1953 posing himself to be Syed Mozharul Huq. He sent a joining report to the District Health Officer, who opened a service book in his name, drew his pay and other allowances from the District Board, and paid the same to the petitioner month by month. The petitioner also signed the service book in the presence of the said Health Officer, P. W. 2 as Syed Mozharul Huq. The real Syed Mozharul Huq was a Matriculate, and was serving as a Forester under Divisional Forest Officer, Mymensingh, since the 15th of April 1952. The petitioner, on the other hand, was not even a Matriculate.

3. On receipt of certain information, however, the District Anti‑Corruption Branch made enquiries into the matter, and detected the real position. Accordingly, P. W. 1 who is a Sub‑Inspector of the said Department lodged a first information report in respect of the said offence on the 10th of April 1957, at the Sutrapur Police Station, against both the brothers, the petitioner and the said Mozharul Huq.

4. The defence of the accused petitioner appears to have been that one Khan Bahadur Syed Awlad Hossain who was then the Vice‑Chairman of the District Board was related to the family of the accused, and on their request for job for the petitioner had appointed him, but as the names of the two brothers were homonymous he had out of some, confusion issued the letter of appointment in the name of Syed Mozharul Huq. This, according to the defence, was a bona fide mistake on the part of said Syed Awlad Hossain.

5. At the trial, seven prosecution witnesses' were examined, and a charge was only framed against the petitioner. His brother, the real Syed Mozharul Huq was discharged. Two of these witnesses, namely, P. Ws. .5 and 7 were not tendered for cross‑examination: Hence, their evidence was rejected. But relying on the evidence of P. Ws. 1, 2, 3, 4 and 6 the trial Court took the view that if there had been any bona fide mistake, as suggested by the defence then it was the duty of the petitioner to get the mistake rectified in due course. Since he did not do anything of the kind, but remained silent and continued to draw pay month after month in the name of Syed Mozharul Huq, the defence of bona fide mistake was negatived.

6. Again although the application for the job which was marked, Exh. 2 had not been legally proved; the learned Judge referred to it and utilised the signatures thereon for comparison with the signatures on other exhibits proved to have been signed by the petitioner, and it was held that on the facts so proved, it was clear that such action on the part of the petitioner did deceive the District Health Officer P. W. 2 as also caused him damage in property, in so far as he was thereby induced to draw the flay every moxth, and disburse the same to him.

7. The said g. W. 2 himself in his cross‑examination, admitted that he had not been cheated, and that tote petitioner had never caused any damage to him.

8. The trial Court, however, took the view that in saying this all that P. W. 2 meant was that he as an individual person had not been injured in his private capacity, but the facts and circumstances clearly disclosed that he as the District Health Officer had suffered damage in property. In this view of the matter, the trial Court convicted the petitioner.

9. The appeal preferred against the said conviction has also been dismissed by the learned. Sessions Judge of Dacca, who has agreed with the findings of the trial Court.

10. The learned Advocate appearing in support of this Rule contends that both the Courts have been led into error in convicting the petitioner, for, on the facts proved no case of cheating had been made out by the prosecution evidence. It is urged that the Courts below were wrong in holding against the positive evidence of P. W. 2 himself that he had suffered any damage or harm either in person or in mind, reputation or property. Without this there could be no conviction at all, even assuming that the silence of the petitioner regarding his real name did deceive and was meant to deceive the Health Officer. The damage or harm it is contended, must be the proximate and natural result of the act or omission.

11. In the present case the petitioner was not appointed by the District Health Officer but the appointment, according to the prosecution evidence itself, was given by the Vice‑Chairman, Awlad Hossain. In pursuance of that appointment, the petitioner gave his joining report, and was continuing to work under the Health Officer, and to draw his salary month by month there. His work was in every way satisfactory, for, by is the evidence of P. W. 2 that there is no adverse report against him. In the circumstances, there could be no question of the said health Officer being in any way injured or suffering any harm either in body, mind, reputation or property, for, he had no hand in the appointment of the petitioner, and there is nothing to show that he was in any way aware of the fact that the petitioner was not the real Syed Mozharul Huq. Again, the fact that the petitioner was not a Matriculate was immaterial, for, according to the prosecution evidence, even non‑Matriculates could have been appointed to the said post. The salary drawn by the petitioner was paid by .the District Board and not by the Health Officer. The pecuniary loss or loss of property, if any, therefore, was caused to the District Board and not to the Health Officer.

12. Although, there is no evidence to show that the said Health Officer was deceived in any way at the time of the appointment, but I think it is possible to contend that when the petitioner gave his joining report and signed the service book as Syed Mozharul Huq before the Health Officer, he did deceive him by so doing, and again, every month when he drew his salary by signing as Syed Mozharal Huq he did deceive the said District Health Officer.

13. Section 415 of the Pakistan Penal Code; however, requires that it must be established (1) that deception was practised on a certain person ; (2) that by that deception the person deceived had been induced to do or omit to do anything which he would not have done, or omitted to do ; and (3) that such deception had caused or was likely to cause to such person damage or harm in body, mind, reputation or property. In the present case, as I have indicated earlier, the last element has not been established. The Courts below were not, in my opinion, entitled to totally ignore the positive evidence of P. W. 2 himself that he had not been cheated or suffered any damage in any way, when there was no evidence of any proceeding being drawn up against the said Health Officer or of any explanation being called for from him on this account. For this view, I find support also from a Division Bench decision of the Lahore High Court in the case of Muhammad Baksha and another v. The Crown (1). In that case Muhammad Baksha was said to have represented himself to be one Ilahi Baksha Sahol before the Naib‑Tahsildar of the Tahsil for getting is transfer of certain properties purported to have been made by the said Ilahi Baksha Sahol in favour of one Allah Wasaya recorded in the name of Allah. Wasaya by mutation in the land records. By reason of the vagueness of the answers given by the said Muhammad Baksha, the suspicion of the Naib‑Tahsildar was aroused, and he did not sanction the mutation on the ground that the whole consideration had not been paid to the vendor. The Lambardar who had mistakenly also identified the said Muhammad Baksha as Ilahi Baksha Sahol before the Naib‑Tahsildar later came to know that Muhammad Baksha was not Ilahi Baksha Sahol, and reported this matter to the Patwari. The case was then reported to the Police by the Naib‑Tahsildar, and Muhammad Baksha along with others were prosecuted for cheating by impersonation. Abdul Rashid J., who delivered the judgment of the Court after reviewing a large number of decisions, came to the view that in those facts since the damage of harm in property was likely only to be caused to Ilahi Baksha Sahol and not on the Naib‑Tahsildar, even if he had allowed the mutation to go through, the offence of cheating the Naib‑Tahsildar by impersonation had not been made out.

14. According to this decision, it had to be established that the deception was practised on the Naib‑Tahsildar, and that it was he who as a result of this deception entered the mutation in the mutation register, and that such deception was caused or was likely to cause damage or harm in body, mind., reputation or property to the said Tahsildar. In that case the Naib‑Tahsildar had acted in accordance with the rules, and he could not be made to suffer if it was subsequently discovered that he had been deceived.

15. In the facts of the present case also since the Health) Officer could not be made legitimately to suffer either in mind, 1 (1) I L R 22 Lah. 718 body or reputation upon the discovery that the petitioner was not the real Syed Mozharul Huq, the offence under section 419 of the Pakistan Penal Code was not complete, for the loss of property, if any, that occurred in the present case occurred to the District Board, and not to the Health Officer.

16. In this case again since no application for appointment had been proved, and the prosecution witnesses admitted that the said Syed Awlad Hossain knew the family of the petitioner, there was no evidence that any deception had been practised even on the said Awlad Hbssain. Even, apart from this as I have earlier indicated, each time the petitioner signed Syed Mozharul Huq, he represented falsely that he was Mozharul Huq, and that amounted to deception.

17. The learned Advocate it may be mentioned, also challenged the locus standi of the Sub‑Inspector of the District Anti‑Corruption Branch to lodge this complaint, for, according to him, the complaint must be lodged by the person deceived, for, no one else can lodge a complaint in respect of an offence of cheating. In support of this contention he placed reliance on a decision of the Baghdad‑ul‑Jadid High Court in the case of Sahibzada Muhammad Hayat Khan v. Ghulam Muhammad (6 D L R Lah. 177) In that case a learned Single Judge of the said High Court accepted the contention that a person who is not the actual person cheated, has no locus standi to bring a complaint for cheating, I am, however, unable to agree with this view,' for the offence of cheating under section 419 of the Pakistan Penal Code is a cognizable offence, and I see no reason why it cannot be taken cognizance of like other such offences.

18. Although it may be that if the person who has actually been cheated does not complain of the same, the proof of the deception may become difficult. But I can see no legal bar to any other person giving information of such a cognizable offence.

19. The learned Advocate also contended that the charge framed was bad for multi furiousness. According to the charge, the said P. W. 2 Health Officer, was alleged to have been fraudulently induced to deliver Rs. 77 per month for over four years. Each monthly delivery of the salary drawn by the petitioner, according to the learned Advocate, constituted by itself a complete offence of cheating, and, as such, there could be no justification for the lumping up at least forty-eight such offences in one charge and trying the same together. It could also, by no stretch of imagination, be said that these acts of cheating were done in the course of the same transaction: The charge as framed is certainly defective. But in so far as the petitioner has only been convicted of one offence of cheating and not on forty‑eight counts of cheating, I do not think that this is really a case of misjoinder of offences.

20. The complaint with regard to the improper examination of the petitioner under section 342 of the Code of Criminal Procedure is also justified in the present case. The record shows that only one brief question was asked, namely, that you have heard the evidence, what have you to say ? The answer was as usual, that he was innocent. It is not necessary,' however, for me to say anything further with regard to this matter, as I am of the view that on merits this application in revision must succeed. In the absence of anything in the record to show that the District Health Officer suffered any damage or harm of any kind what soever, there was no material upon which the Courts below could come to the inference that he must have suffered damage in property by permitting the petitioner to draw his salary every month from the District Board.

21. This Rule is accordingly made absolute, the conviction and sentence of the petitioner are set aside, and he is acquitted of the charge made against him. He should now be discharged from his bail bond. The fine, it appears, has already been remitted by the learned Session Judge. K. B. A. Rule made absolute.