P L D 1967 Dacca 826 (PLP)

"For the purpose of this sub‑section `appropriate Govern ments' shall mean the Government which at the time of the Commission of the offence was the appropriate Government." If the intention of the Legislature was that no sanction would be necessary for the prosecution of a Government servant who left the service of the Government under which he was working at the time of commission of the offence, then this explanation G would not be necessary. "We accordingly hold that in this case sanction of the appropriate Government namely, the Government of East Pakistan for the prosecution of the appellant was necessary even though he was not serving under the said Government but was serving under the Central Government on the date of taking of cognizance by the learned Senior Special Judge." It follows from the above that in the absence of sanction the prosecution was incompetent. Mr. Abdus Salam Khan, assails the conviction under section 419, P. P. C. on another ground. His contention is that the essential requisites of cheating, inter alia, are that a person should be deceived and intentionally induced to do or omit to do anything, which he would not do or omit to do if he were not so deceived. It has been urged that in the present case there is no evidence that the appellant deceived the appointing authority and intentionally induced such authority to appoint him or continue to employ him as an Assistant Teacher in the Motijheel Free Primary School. It has been submitted that the appellant did nothing but gave out his name as Md. Obaidullah instead of his real name Md. Shafiullah. This, according to Mr. Abdus Salam Khan, does not constitute an offence under section 419 of the Penal Code. This point does not call for determination in this case regard being had to the fact that we have already held that the Trial was incompetent in the absence of necessary sanction from the appropriate Government; but as the point has been raised we deem it proper to dispose of the same. Mr. Abdus Salam Khan's argument appears to be based on a misconception of the offence of cheating by personation. Section 419 provides for punishment of a person who `cheats by personation.' Cheating as defined in section 415 is not a pre requisite to a conviction under section 419 inasmuch as cheating by personation has been separately and independently defined in section 416, P. P. C., which reads as follows:‑ "A person is said to `cheat by personation if be cheats by pretending to be some other person, or by knowingly substitut ing one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.‑The Offence is committed whether the individual personated is a real or imaginary person." Section 415 which defines cheating runs as follows:‑ "Whoever, by deceiving any person, fraudulently or dis honestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'. Explanation.‑A dishonest concealment of facts is a deception within the meaning of this section." Section 415 requires: (1) Deception of any person. (2) (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property, or (b) intentionally inducing that person to do or omit to do B anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, repu tation or property. The essential requirements of section 416 on the other band, are: (1) Pretension by a person to be some other person. (2) Knowingly substituting one person for another. (3) Representation that the person representing or any other person is a person other than be or such other person really is. "To 'personate' means to pretend to be a particular persons." It is clear from a close reading of both the sections, namely sections 415 and 416 of the Penal Code that "cheating by personation" is different from "cheating" pure and simple. The contention of Mr. Abdus Salam Khan that the appellant did not commit an offence under section 419 of the Penal Code because it is not the prosecution case, nor is there evidence on record that he intentionally induced the appointing authority to appoint him as an Assistant Teacher of the Motijheel Free Pri mary School is without substance. In view of the fact that the trial of the case was incompetent for want of requisite sanction, the conviction and the sentence passed on the appellant cannot be maintained. We have given our thoughts to the question as to whether the appellant should be retried after obtaining sanction from the appropriate Government. Our considered view is that the appellant should not be subjected to the hazard of a fresh trial for no fault of his inasmuch as it was for the prosecution to obtain the necessary sanction before putting him into trial, and for default on the part of the prosecution the appellant should not suffer. For this reason, we refrain from ordering fresh trial in this case. The appeal is accordingly allowed. The conviction of the appellant under sections 419 and 420, Pakistan Penal Code, and sentence passed on him under section 419, P. P. C. are hereby set aside. He is directed to be released forthwith from his bail bond. ABDUL MOUDUD, J.‑I agree. S. Q. Appeal allowed.