1983L36 (PLP)

The petitioner challenges through this petition the order dated 20th September, 1981, passed by the Disciplinary Committee of the Board of Intermediate and Secondary Education, Lahore (hereinafter called the Board) disqualifying him for the Spring 1980 examination and debarring him from three subsequent examinations. The facts, briefly given. are that the petitioner appeared in F. Sc. (Pre-Medical) examination, held in the year 1979, under Roll No. 3359 and was declared successful, with 524 marks. He again applied to appear in the same examination as a private candidate, without disclosing his first examination. He got a new registered number allotted and attempted the F. Sc. (Pre-medical) examination in 1980. He was allotted Roll No. 5783. That time he improved his position by obtaining 717 marks. He then applied for admission to the 1 st Year M. B., B. S. which was allowed provisionally for the King Edward Medical College, Lahore.

2. The petitioner, thereafter, submitted the `attempt' certificate. It meant to show as to how many attempts were made by him in passing the F. Sc. . Pre-medical) examination. Respondent No. 5 sent it to respondent No. ( for verification and to determine as to how there existed a gap between passing of Matric and F. Sc. examinations. Respondent No. I informed respondent No. 5 that the petitioner had also appeared in 1979 prior to taking 1980 examination.

3. As this fact was not mentioned in the admission form, the petitioner was issued with a charge-sheet dated 20th July, 1981 stating that the omission was an offence under rule 6.9 of the Discipline Rules of the Board. In his reply, the petitioner stated that the allegations could fall under rule 6.7(1) and rule 6.9 was not attracted. The petitioner repeated the same when he appeared before respondent No. 3, the Disciplinary Committee. Respondent No. 3, realising the mistake, on the same date, drafted a fresh charge-sheet under rules 6.7(1) and 6.9. They also asked the petitioner to furnish an immediate reply without adjourning the case further. The Disciplinary Committee then passed the order dated 20th September, 1981 holding that the petitioner was debarred from appearing in three examinations, subsequent to the Spring examination of 1980. His appeal was also rejected on 24th October, 1981, and hence the present writ petition.

4. The learned counsel for the petitioner admits, his alleged omission in the form, which does contain a specific column about it, but contends that as the mere omission to mention, that the petitioner had already appeared in 1979, would not amount to a false representation, it did not entail any consequence whatever, and it could in no way attract such a severe penalty. The learned counsel for the respondent admits that the petitioner was entitled to appear in the second examination of 1980 to improve his marks, even if he disclosed that he had already appeared in 1979 examination. His plea is that the omission was meant to create a possibility for a third attempt. The same position had been taken by the Deputy Controller (Examinations) when he appeared on 21st March, 1982 in pursuance to an order of this Court. He had also stated, in view of rule 15 of the Rules for the Intermediate Examination that no difference would have been made, if the petitioner had disclosed, in his form, that he bad appeared .in 1979 examination also.

5. The above position gives rise to a short question for determination. It is, whether a were omission to disclose a fact entailing no consequence, whatever, can be made the basis of a penalty of the nature, under the relevant rules ? The learned counsel for the respondent has sought support from Miss Farhat Akbar v. Board of Intermediate and Secondary Education, Bahawalpur (PLD1981BJ47) and Muhammad Ashraf Qadri v. Principal, King Edward Medical College, Lahore (PLD1982SC131), to defend the order passed by the respondents. They have been distinguished by the learned counsel for the petitioner on the ground, that the omission/mis-statements in those cases did rightly attract a penalty as the candidates there would not have benefited, if they had disclosed the correct facts in .their forms/ affidavits. The contention of the learned counsel for the petitioner has much weight and I am inclined to agree with him. The above two cases, therefore, do not apply. .6. The relevant provisions of Chapter 6 of the Calendar of the Board, which have been made the basis .of the penalty imposed, read as under : "7: A candidate shall be disqualified from passing the relevant examination and from appearing in the immediately following examination (annual or supplementary), if he is found guilty of (i) making false representation in his admission form or any other document connected with the examination ; (emphasis supplied). "

9. A candidate shall be, disqualified from passing . the relevant examination and appearing in the following five or snore examinations (annual or supplementary) or be declared as not a fit person to be admitted to any future examination of the Board according to the seriousness of the offence and the circumstances of the case, if he is found guilty of ; (i) possessing fire-arms or anything capable of being used as a weapon of offence in or around an examination hall ; (ii) misconduct of a serious nature such as impersonation, abusing, assaulting or threatening to assault any person engaged in the conduct of an examination."

7. It is clear from the above provisions that the plea of the petitioner, in his reply to the charge-sheet, that rule 9 was not applicable was-well founded. The charge did not contain any allegation which could come close to that rule. What remains to be considered then is whether the allegation P is referable to rule 7(l) at all ? Rule 7(l) imposes penalty on a student who makes `false representation' and it is that connotation which needs attention. According to the Webster's Third New International Dictionary `false representation' means inter alia 'an untrue representation willfully made to deceive another to his damage'. 8. `False representation' has also been equated to `fraud' in the same Dictionary to say 'an intentional misrepresentation, concealment, or non-disclosure for the purpose of inducing another in reliance upon it to, part with some valuable thing belonging to him or to surrender a legal right : a false representation of a matter of fact by words or conduct by false or misleading allegations, or by the concealment of what should have been disclosed that deceives or is intended to deceive another so he shall act upon it to his legal injury-called also actual fraud-fraud in equity : an act, omission to act, or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another (as an act in violation of a relationship of trust and confidence)--called also equitable fraud. Meaning of 'Fraudulent representation' as given in the said Dictionary is a representation that a past or present material fact is true which is made in any manner or form with the intention of inducing someone to act thereon and by one who either knows of its falsity or is ignorant of its truth or falsity or who acts recklessly without regard to its truth and which in some jurisdiction requires an actual intention to deceive for one to be held liable for damage but which is even without such intention sometimes fraudulent in law and ground for avoiding a contract.

9. The 'false representation' is also an essential ingredient of cheating as defined in section 415, P. P. C. The requirements of section 415, P. P. C. have been considered by the courts of this sub-continent at various occasions. One may, therefore, also rely on the judicial interpretation of that concept to understand more about it. A Patna Court, in Deodharf Mahto v. KingEmperor (A I R 1921 Pat. 80), held that according to the definition of the term 'cheating' as given in section 415 it is essential to prove that the person, who delivers property, had been induced to do so fraudulently and dishonestly, in order to make out a case of cheating. In Mata Prasad v. Emperor (A I R 1.920 All. 66), the court opined that before an offence can be established under section 420, P: P. C. it is for the prosecution to prove that there had been not only an act of cheating, on the part of the accused but also that by that very act of cheating the person cheated was induced to deliver property and the act of cheating was deliberate.

10. In Ali Hussain v. Emperor (1), the court held that the fact that the accused wore a `khaki' shirt and threatened to take the complainant to the `Thana', it was a sufficient false representation and did amount to deception when the complainant had been induced on that account to part with a sum oJ' Rs. 40.

11. In Matilal Chakravarty v. The King (2), the Court held that a person may be induced to do something on a false representation made to him and if the person making the representation honestly believed the representation to be true, there can be no question of cheating. However, if the representation was false to his knowledge and he made it with a view that other person should act upon it then the same would amount to cheating.

12. The Indian Supreme Court in Mahadeo Prasad v. State of West Bengal (3), held that if the conduct of the appellant is sufficient to hold that at the time when he took delivery of the goods he had no intention to pay but merely promised to make cash payment to induce the complainant to part with the goods a case for cheating was made out.

13. Again, in Aparli Charan Ray v. Emperor (4), a husband who had been given general permission by his wife to file papers in court on her behalf, was not held to have forged a plaint in which he forged her signatures to save the suit from becoming barred by limitation. Allababad High Court in Chandu Lai v. Emperor (5), observed that fabrication of a false document is criminal only when certain intention can be attributed to a person who fabricates it.

14. The above dictionary meanings and the case law requires proof o the following ingredients essentially to establish a case of false representation or cheating :-. "(a) There must be an untrue representation or wilful concealment o some material facts. (b) It must be made wilfully and deliberately. (c) There should be an intent to induce the victim to deliver property o other valuable thing of right belonging to him or his master or to cause legal injury, which the victim would not had the representation not been made." It has also been held that false representation may be made by conduct which may be by way of omission to do something.

15. In the case in hand the petitioner did fill up column ( 10 ALIF) though it was meant only for those students appearing for the first time. Further, he omitted to fill up column (10 BAY) though it specifically pertained to him. He got another registered number though he had been allotted one already. He appeared as a private candidate. It is thus quite clear that the petitioner made misrepresentation in some way and also concealed other facts which he ought to have disclosed. Again had he filled the form correctly, it would have been known that he was not appearing in his examination for the first time but it was his second attempt. (I) A I R 1933 Cal. 308 (2) A I It 1949 Cal. 586 (3) AIR 1954 SC724 (4) AI R 1930 Patna 271 (5) AIR?940Al1.551

16. The factual position given above shows that the petitioner did make representations which he knew were untrue and concealed facts. It can also be said that he made those untrue representations knowingly and wilfully as he must have understood the contents of the above said two columns. The last ingredient however is not there at all. The petitioner, as admitted by the learned counsel and the Deputy Controller quite rightly, had a right to appear again in the examination under rule 15 and the respondents were not being induced to do something which they would not do had he not made the said untrue representations. They were, therefore, not induced by the representation to part with anything at all which otherwise they would not have done.

17. A case, State of U. P. v. Joti Prasad (1), involving a similar question of law came up for consideration before the Allahabad High Court. The learned Judges relied on section ?5,

1. P. C. to say that a person is said to do a thing fraudulently only if he does the thing with an intent to defraud but not otherwise. It was further observed that. if any wrongful gain or wrongful loss is not caused then a thing is not done dishonestly. Similarly, if a person is not defrauded then a thing is not done fraudulently. It was a case where the accused had anti-dated a certificate, but no intention was proved that he did so with an intent to defraud. The Court also referred to the case of Kali Prasad Banerjee v. Empetor (2), where it was held that mere signing of a telegram in another's name where it is not shown to have been done with intent to injure him and where it does not actually injure him does not constitute the offence of forgery even though the signature may have been made without the authority of such person. Reference was also made to Manika Asari v. Emperor (3). The accused in that case was held not guilty though he altered a document intending thereby to secure a plot to which he bona fide believed himself to be entitled and which was in his possession. There was thus no culpable false representation in this case also.

18. Another objection of the respondents is that the acts of omission and commission of the petitioner were meant to get a third chance to improv marks as against two provided under rule 15 referred to above. That objection could be taken or a charge levelled only if the petitioner had in fact taken a third chance or even done anything about it. Admittedly, no such step has C been taken by the petitioner and so not even an attempt was made to induce the respondent to give him that chance. The contention, therefore, is too remote and far-fetched. It was held in Emperor v. Muhammad Shah an another (4), that to constitute the offence of cheating under section 415, Indian Penal Code, the damage or harm caused or likely to be caused to the person. deceived in mind, body, reputation or property, must be the necessary Consequence of the act done by reason of the deceit practised, or must be necessarily likely to follow therefrom. Further held that there being only a possibility that M might suffer annoyance owing to the discovery that the recruits had already been rejected and to the fact that his explanation might not be believed at once by the recruiting officer, the accused were not guilty of cheating under section

415. I. P. C.

19. In Ratan Singh v. Emperor (5), the Court observed that it is settled law that in order to bring a case within :he second part of section 415, damage or barm caused, or likely to be caused, must be the necessary (1) A I R 1962 All. 582 (2) A I R 1915 Cal. 786 (3) A I R 1915 Mad. 826 (4) A I R 1919 Lah. 473 (5) (1935) 36 Cr. L J 274 consequence of the fact done, by reason of the deceit practised or must be necessarily likely to follow therefrom, and the law does not take into account remote possibilities of such a result. The same view was taken by Tek Chand, J., in Ratan Singh v. The Crown ((1934) 35 P L R 666). In Harendra Nath Das v. Jyotish Chandra Datta ((1925) 52 1 L R 188), it was held that as no loss to property or harm to the manager' reputation resulted proximately and necessarily, from the act itself which he was induced to do, the case did not fall within the second part of section

415. It was further observed that under section 4i5 of the Penal Code, the intention at the time of the offence and the consequences of the act or omission itself, have to be considered. Further, the damage or harm caused, or likely to be caused, must be the necessary consequences of the act induced by the deceit, or must be such as is necessarily likely to follow therefrom, and not any remote possibility flowing from that.

20. In view of the above, it is quite clear that the petitioner did not make any such false representation on account of which the respondent was induced to do an act which he otherwise would not have done, had the correct facts been brought to his notice. The impugned order is, therefore, declared to be without lawful authority and of no legal effect. The respondent shall also pay the costs. s. A. H. Petition allowed.