Bashirbhai Mohamedbhai Vs. The State of
Bombay  INSC 80 (19 April 1960)
IMAM, SYED JAFFER
CITATION: 1960 AIR 979 1960 SCR (3) 554
Criminal Law-Attempt to commit
offence-Attempt to cheat The complainant whether must be deceived--Indian Penal
Code, (XLV of 1860), s. 511.
The offence of attempting to cheat may be
committed even though the person attempted to be cheated does not believe in
the representations made to him and is not misled by them but only feigned
belief in order to trap the offender.
Where misrepresentations had been made and
money obtained from the persons sought to be cheated by the misrepresentations,
there is an attempt to cheat and not merely a preparation for committing that
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 55 of 1955.
Appeal by special leave from the judgment and
order dated August 26, 1957, of the Bombay High Court in Criminal Appeal No.
1208 of 1955, arising out of the judgment and order dated March 31, 1955, of
the Sessions Judge, Baroda, in Criminal Appeal No. 13 of 1955.
M. K Ramamurthi and J. B. Dadachanji, for the
R.Ganapathy Iyer and R. H. Dhebar, for the
1960. April 19. The Judgment of the Court was
delivered by SARKAR, J.-The appellant and two others were convicted by a
Magistrate under s. 420 read with ss. 511 and 34 of the Indian Penal Code and
each was sentenced to rigorous imprisonment for 12 months and a fine of Rs. 500
and in default of payment, a further period of imprisonment for four months. On
appeal the accused persons were acquitted by a Sessions Judge. The State then
appealed to the High Court at Bombay and the High Court set aside the order of
acquittal and restored the order passed by the learned Magistrate. Accused No.
1 alone has appealed against the order of the High Court to this Court.
The three accused persons approached one
Ramanlal and the third accused told Ramanlal that accused 555 Nos. 1 and 2 were
proficient in duplicating currency notes and they were prepared to do it for
Ranlanal who should take advantage of the offer. The third accused then asked
Ranianlal to think over the matter and promised to come again. Ramanlal later
mentioned this matter to his friend Champaklal, the complainant, and the two
decided to trap the accused persons disbelieving their (professed) power to duplicate
notes. The third accused again came as promised and met Rtamanlal and
Champaklal. Champaklal promised to find currency notes for Rs. 20,000 for
duplicating and a date was fixed when it was to be done. Thereafter Ramanlal
and Champaklal informed the police. The police hid themselves in the house of
Ramanlal where it had been fixed with the accused that the duplicating would be
done. The three accused arrived duly. The second accused spread bottles, blank
papers, etc., on a carpet and the first accused, the appellant, asked
Champaklal to produce the currency notes.
Champaklal who was carrying a bag supposed to
contain the promised currency notes worth Rs. 20,000, took out two currency
notes of Rs. 100 each from the bag and gave them to the appellant. As soon as
the appellant bad taken the money, Champaklal gave the pre-arranged signal and
the police came into the room and arrested all the accused persons. They were
thereafter prosecuted for the offence of an attempt to cheat upon a complaint
lodged by Champaklal with the result already mentioned.
Three points were argued by the learned
advocate for the appellant. First it was said that the charge was for an
attempt to cheat Champaklal but there was no evidence to -,how that any
representation bad been made by anyone to Champaklal. The Courts below however
found that such a representation had been made and we think that the finding is
clearly supported by the evidence on record.
The next point taken was that there had been
no attempt to commit the offence of cheating but only a preparation to commit
that offence which was not punishable. It seems to us clear that an attempt to
commit the offence bad actually been made. A fals representation had been made
and a sum of Rs. 200 556 had been obtained from Champaklal. These clearly are
acts done towards the commission of the offence within the meaning of s. 511 of
the Indian Penal Code. In fact the making of the false representation is one of
the ingredients for an offence of cheating under s. 420 of the Indian Penal
Code. So also the delivery of property is another of such ingredients. Both
these ingredients took place in this case and the accused brought them about.
Therefore it cannot be said that the accused had only made a preparation and
not an attempt to commit the offence.
The last point argued was that there was no
attempt to cheat because the complainant had not been deceived. It is true that
the complainant bad not been taken in. He had never believed that the accused
could actually duplicate currency notes. He feigned belief only in order to
trap the accused.
That however clearly makes no difference so
far as an attempt to cheat is concerned. The accused had attempted to cheat the
complainant. That they had failed in their attempt is irrelevant in considering
whether they had committed the offence of attempting to cheat. This view of the
matter has been accepted in the High Courts uniformally.
In The Government of Bengal v. Umesh Chunder
Mitter (1) it was observed that " A man may attempt to cheat, although the
person he attempts to cheat is forewarned, and is therefore not cheated."
This is clearly the right view.
This appeal is entirely without merit and it
I.L.R. 16 Cal. 310,116.