Report No. 29

135. Position in English Law.-In England, at common law, short delivery was held not to be "cheating" (in the absence of use of false measures etc., as a general course of dealing, or to many customers, or unless there is a conspiracy to cheat)1-2. The act was regarded only as an unfair dealing. It was stated, that fraud, to be the object of a criminal prosecution, must be calculated to defraud numbers.

This rule of the common law was altered, to some extent, by section 32, Larceny Act3-4. The relevant portion of the section runs as follows:-

"32. Every person who by any false pretence (1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered, to himself or to any other person for the use or benefit or on account of himself or any other person; .................................................................................................................................................................................................................................................................................... shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for any term not exceeding five years."

The expression "false pretence" includes a pretence by act or conduct, without words spoken5.

1. R. v. Wheatly, (1761) 2 Burr 1125 (1127), cited in Archbold Criminal Pleadings, etc., (1962 Edn.), para. 2001.

2. See also Russell on Crime, (1964) Vol. 2, pp. 1163 and 1164.

3. See section 32, Larceny Act, 1916 (6 and 7 Geo. 5, C. 50).

4. See Russell on Crime, (1964) Vol. 2, pp. 1165 and 1166.

5. Russell on Crime, 1964 Vol. 2, p. 1176.

136. Kinds of malpractices.-In one of the comments1 received by us, it has been stated that there are three kinds of malpractices that have come to notice-

(a) The contractor, in collusion with the inspectors of Government, committed illegal acts in getting stores of an inferior quality passed as if they were of the specifications specified in the contract, and supplied the same and induced the Government to part with the value thereof.

(b) The contractor, after getting the stores passed by the inspectors, despatched unpassed stores in place of passed stores, and thus defrauded the Government by inducing it to part with the value of the passed stores.

(c) The contractor, by furnishing false particulars and quoting fictitious numbers of Railway Receipts, cheated the Government and obtained 90 per cent. price of the goods without supplying them.

1. The comment, however, adds that practically all these are covered by the existing penal provisions in sections 415 and 420, read with sections 109 and 120B, Indian Penal Code.