P L D 1957 Dacca 255 (PLP)

ELLIS, C. J.‑--In this case a Rule was issued on the District Magistrate of Dacca at the instance of one Jogesh Chandra Guha, the petitioner. Jogesh Chandra Guha, a man 50 years of age, was placed on trial before Mr. S. A. Rawoof, a Magis trate of the 1st Class of Manikganj, on charges under sections 417/511, 193/511 of the Penal Code and under section 64 of the Pakistan Postal Act. He was found not guilty of an offence under section 64 of the Postal Act but was found guilty under sections 417/511, 193/511 of the Penal Code and was sentenced to rigorous imprisonment for three months on each count. His appeal to the Sessions Judge was dismissed by Mr. V. Hossain on the 3rd of May 1954, and on the 21st of June 1954, he approached this Court in the exercise of its Criminal Revisional Jurisdiction and obtained the present Rule on ground No.

4. Ground No. 4 reads: "For that the facts did not make out any case under section 417/511, P. P. C., as the Postal authorities were not liable to pay any compensation under the law and the sender was at liberty to put in anything inside a registered letter unless it was contraband and prohibited article and as such the conviction and sentences are liable to be set aside." It is the case for the prosecution that the petitioner Jogesh Chandra Guha, a. middle‑aged man of 50, on the 6th of September 1948, presented two insured covers to Khitish Chandra Dey, the then Post‑Master of Bonkhuri Branch Post Office under Baira Sub‑Post Office within Manikganj Subdivision for dispatch and transmission to two addressees in Calcutta. One of the letters was addressed to Babu Jitendra Kumar Chandra at 91, Raja Dinendra Nath Street, Calcutta, the other was addressed to Babu Prafulla Kumar Dutta, 140, Ashutosh Mukherjee Road, Calcutta. Each of the two covers bore an endorsement that it was insured for Rs.

600. When the convers were presented to Khitish Chandra Dey, the Post‑Master, he examined them and found that they bad been sealed with a four‑anna coin. He accordingly informed the petitioner that this manner of sealing was irregular and he refused to accept the covers. On the petitioner's assuring him that he would take back the insured cover if the higher Postal authorities refused to accept them, on that condition the Branch Post‑Master accepted those covers and granted the petitioner two Kachcha receipts therefore. Under the Postal rules he was not entitled to grant Pucca receipts for the two covers as such receipts were to be granted by the Post‑Master of Baira Sub‑Post Office. The Branch Post Master thereafter dispacthed the two insured covers to the Baira Sub‑Post Office. But the Post‑Master there, taking the same view that the method of sealing was irregular and could not be accepted, returned the same to the Branch Office at Bonkhuri. The petitioner was then called to take back the insured covers according to his promise to take them back if they were returned to him intact. The petitioner, at first, declined to take back the insured covers and the Branch Post‑Master referred the matter to the Inspector of Post Offices who came to the Branch Post Office on the 14th of September 1948, and there held an enquiry in the presence of the petitioner. The petitioner refused to take open delivery of the insured covers and so, the Inspector of Post Offices opened them himself and inside one cover he found 14 pieces of blank papers and in the other one, nine pieces of blank papers. An inventory of the contents of the two covers was drawn up in the presence of the witnesses, but the petitioner refused to sign the inventory. The Inspector then made over the opened insured covers and their contents to the Police and lodged a formal complaint. Three charges were framed against the petitioner. The first one was a charge under section 417/511 of the Penal Code and it was couched in the following terms: "That you, on or about the 6th day of September 1948, at Bonkhuri, P. S. Manikganj, District Dacca, falsely represented to the authority of Bonkhuri P. O., that your insured covers, viz., Exhs. 1 and 2 contained Rs. 600 each although these did not contain such money at all and attempted to get Pucca receipts for the same so that you could claim the said amount from the Postal authority and as such you attempted to cheat the Postal authority out of that sum and thereby committed an offence punishable under section 417/511 of the P. P. C." The second charge was a charge under section 193/511 of the Code. "That you, on or about the same day of the same year at the same place, attempted to obtain Pucca receipts from the postal authority in respect of Rs. 600 each in each said insured covers by the manner as aforesaid and knowing that you did not put Rs. 1,200 in the covers and as such attempted to create false evidence to use same subsequently by means of judicial procedure and thereby committed an offence punishable under section 193/511 of the I. P. C." The third charge was the charge under section 64 of Postal Act and it runs as follows: "That you, on or about the same day of the same year at the same place, made false declaration under the Postal Act to the effect that Exhs. 1 and 2 contained Rs. 600 each and that the said declaration was false to your knowledge or you had reason to believe the same to be false and thereby committed an offence punishable under section 64 of the Pakistan Postal Act." The defence which was taken in the Court below was that the petitioner never presented the two covers with waste paper as their contents and it was suggested that the real contents of the covers might have been abstracted and the waste paper substituted therefore by the Branch Post Master Khitish Chandra Dey for his own illegal gain. This defence was negatived both by the Magistrate who decided the case and by the Sessions Judge who heard the appeal. We accept, therefore, that the petitioner actually did present the two covers, with 14 pieces of blank papers inside the one and 9 pieces of blank papers inside the other, to the Postal authority at Bonkhuri. It remains then to be seen whether he has been 'rightly convicted under section 417/51 l and under section 193/511 of the Penal Code. We may observe that the petitioner was fortunate in that the learned Magistrate held that an order of discharge in regard to the offence under the Postal Act operated as an acquittal and, therefore, acquitted the petitioner of the charge under section 64 of the Pakistan Postal Act. The petitioner has been represented before us by Mr. P. C. Bose while Mr. Salahuddin Ahmad, Deputy Legal Remembrancer has appeared for the Crown. The burden of Mr. Bose's argument is that if the peti tioner has committed any offence at all in enclosing blank pieces of papers in insured covers and representing them to the Postal authorities to be worth Rs. 6C0 each, then he has committed an offence under the Postal Act but not one under section 511 of the Penal Code. Mr. Bose has taken us through certain sections of the Postal Act and has claimed that his client is not prohibited from sending blank papers through the Post Office if he felt so inclined, and if he was liable at all for such conduct, then he was liable under the Postal Act for submitting a false declaration. Mr. Bose has also commented on the fact that if the petitioner by his conduct ultimately intended to obtain compensation from the Postal Department, that prospect was far too remote to be construed as an immediate object of any offence under section 511 of the Penal Code. The learned Magistrate was of opinion that the case is one on the same lines as the case of Sadho Lal v. Emperor (34 I C 992). The facts of the case under report are that the accused owed the complainant a sum of Rs.

650. He filled a registered envelope with blank sheets of papers and insured it for Rs. 650 and then posted it to the complainant in order to create evidence of the discharge of his debt to the complainant. He was convicted under section 420 of the Penal Code but their Lordships altered the conviction to one under section 417 read with section 511, inasmuch as the acknowledgment of a receipt of an insured parcel was not a valuable security within the meaning of the definition and so the charge under section 420 of the Code could not be maintained in law. It is, however, to be noticed that in the case under report the accused was charged apparently with cheating the complainant and was ultimately convicted by the High Court for attempting to cheat the complainant to whom through the Post he dispatched blank sheets of papers representing them to be worth Rs.

650. Mr. Bose before us has placed great reliance on the case of Kunju alias Vaithinathasani lyer (28 Cr. L J 70). In this case also the accused, a debtor sent to his creditor a registered insured packet purporting to contain currency notes but in reality containing only waste papers. The addressee v, as thereby induced to acknowledge the receipt of the insured cover. In a suit on the debt by the creditor, the debtor applied to have the Postal acknowledgment admitted in evidence in support of a plea of discharge. It was held by his Lordship that the facts did not constitute an offence of cheating or attempting to cheat and it was held that the actual transaction in such a case is the fraudulent defence of the suit for recovery of the debt and until this is com menced there is no attempt of cheating and the facts merely show preparation to commit an attempt. Mr. Bose also referred us to the decision of Davis J. C. of the Sind Judicial Commissioner's Court in the case of Ayodhya Parsed Sital Parsad v. Emperor (40 Cr. L J 61). This was a case in which previous decisions on the moot point as to whether the sending of a bogus insured letter amounts to cheating or not, are discussed to a considerable length and we find ourselves substantially in agreement with the observations of his Lordship in the case under report. The facts of the present case are that the petitioner filled two insured covers with blank papers and attempted to dispatch them through the Post Office to two persons resident in Calcutta. When the Postal authorities declined to forward the letters on the ground that they had been sealed with a four‑anna piece which was not recognised as a valid form of sealing the petitioner was called upon to take back the two covers and when he declined to do so, they were opened and it was discovered that they contained nothing but blank sheets of papers. Now, it is quite clear that in so doing, the petitioner was making preparation for committing an offence. He was preparing to cheat somebody. But the evidence does not establish that lie went any further than that and it does not show that he made an attempt to cheat anybody. As we have already pointed out, in the case reported in 34 I C 992, the object of the accused was to cheat the com plainant by trying to obtain evidence that he had forwarded him the sum of Rs. 650 in satisfaction of a debt which he owed to tile complainant. In the present case it is not impossible to hold that the petitioner's ultimate object was to cheat Babu Jitendra Kumar Chandra and Babu Prafulla Kumar Dutta, the two addressees of the two insured covers. Of course, it is quite possible that he did intend to cheat the Postal Department and ultimately when it was reported by the addressees that they had received nothing but waste papers inside the two covers, to start proceedings to recover the amount of the insurance. But Mr. Bose has pointed out that any attempt on his part to recover the sum of Rs. 600 for which he was insuring the registered covers, would be hedged about with considerable difficulties. In any case even if the ultimate object of the petitioner was to cheat the Postal authorities, it certainly cannot be said that by representing that the two covers each contained Rs. 600 and getting the Postal authorities to accept them for dispatch to their destinations, he was thereby attempting to A cheat the Postal authority. The prospect of his ultimately obtaining compensation from the Postal authority, is in oui opinion, too remote to be construed as a "causa causans" of the present offence under section 417/511 of the Penal Code. As we have already observed, the petitioner obviously was preparing to cheat somebody but on the evidence, there is nothing to show that it was a definite attempt to cheat anybody and in that view of the matter, he cannot be con victed under section 417/511 of the Code. Still less can he be convicted under section 193/511. The learned Sessions Judge in respect of this charge states: "His conviction to attempt to fabricate false evidence by presenting such bogus insured covers and to set up his claim by such for getting Pucca receipts from the Baira Post Office so that be might dishonestly claim the alleged amount of Rs. 1,200 of the insured covers from the Postal authority later on, in a sub sequent legal proceeding as obviously contemplated by him as well‑established by evidence and circumstances must also be upheld." It is, in our opinion far too remote a consideration to warrant any conviction under section 193/511 of the Penal Code. There in nothing to show at all that the petitioner had in contemplation any 'object of instituting legal proceedings in order to claim the sum of Rs. 1,200 from the Postal Depart ment. In this view of the matter, the Rule is made absolute and the conviction and sentences are set aside. We direct that the petitioner be discharged from his bail and the fine, if paid, be refunded. BADIUZZAMAN, J.‑

I agree K. B. A. Rule made absolute.