Authored By : John Freeman Norris, Beverley

John Freeman Norris and Beverley, JJ.

1. This was a reference by the Chief Presidency Magistrateunder the provisions of Section 432 of the Code of Criminal Procedure.

2. The facts found by the learned Magistrate are as follows:

3. The accused, a private student, was desirous of beingadmitted as a candidate at the Entrance Examination of the University ofCalcutta to be held in Calcutta in February 1892.

4. The Regulations of the University require that everycandidate for admission to the Entrance Examination shall send, either to theRegistrar of the University, or to a local officer recognized by the Syndicate,an application with a certificate in the following form:

5. (The form is that given above in Exhibit B.)

6. On the 23rd December 1891 the, accused sent by post tothe Registrar a letter, of which the following is a copy. (Set out above,Exhibit A.)

7. Enclosed in this letter was an application andcertificate in the prescribed form.

8. The application was signed by the accused; and thecertificate purported to be signed by "Saranath Chatterjee," who wasdescribed as "Head Master, Pabna Government High English School."

9. At the time he sent the certificate the accused knew orhad reason to believe, as the fact was, that the signature "SaranathChatterjee" was not the signature of the person whose signature itpurported to be.

10. On receipt of this letter and the enclosures theRegistrar forwarded to the accused a receipt for the money-order for Rs. 10,and an "authority" to present himself at the Entrance Examination.

11. At the time he sent the receipt and authority theRegistrar knew that the signature "Saranath Chatterjee" was not thesignature of the person whose signature it purported to be.

12. The accused actually presented himself at theexamination and was permitted by the Registrar "to commence theexamination;" but what he actually did towards "commencing the examination"the learned Magistrate does not state.

13. The accused was subsequently charged before the ChiefPresidency Magistrate with dishonestly using as genuine a forged document, towit, the certificate purporting to be signed by Saranath Chatterjee, the HeadMaster of the Pabna Government High English School (Section 471, Indian PenalCode) and with attempting to cheat (ss. 415 and 511, Indian Penal Code.)

14. The learned Magistrate asks for our opinion as towhether on these facts the accused is guilty on either of the above charges, orof any other offence under the Indian Penal Code.

15. The learned Counsel for the prosecution did not suggestthat any charge other than those mentioned could be sustained, and we so faragree with him. It remains, therefore, only to consider whether, upon the factsstated, the accused is guilty of either or both of those charges.

16. To support a charge under Section 471, Indian PenalCode, the prosecution must prove (i) that the document in respect of which thecharge is made is forged; (ii) that the accused used the document; (iii) thatat the time he used it he knew, or had reason to believe, that it was forged;(iv) that at the time he used it, with such knowledge or belief, he did sofraudulently or dishonestly.

"Fraudulently" in defined by Section 25, IndianPenal Code, to be the doing of a thing with intent to defraud, but nototherwise.

Dishonestly "is defined by Section 24, Indian PenalCode, to be" the doing of anything with the intention of causing wrongful gainto one person or wrongful loss to another person.

"Wrongful gain" is defined by Section 23, IndianPenal Code, to be "the gain by unlawful means of property to which theperson gaining is not legally entitled," and "wrongful loss" isdefined by the same section to be "the loss by unlawful moans of propertyto which the person losing it is legally entitled.

17. In construing Sections 24 and 25, Indian Penal Code, weare of opinion that the primary, and not the more remote intention of theaccused must be looked at.--See the observations of Edge, C.J. in Queen-Empressv. Girdhari Lal I.L.R. 8 All. 653.

18. Now, what was the primary intention of the accusedClearly this. By falsely inducing the Registrar to believe that the certificatewas signed by the Head Master of a Government school under public management tobe permitted to sit for The Entrance Examination.

19. Now, this primary intention of the accused was not, wethink, fraudulent or dishonest within the meaning of Sections 25 and 24, IndianPenal Code.

20. The learned Magistrate does not state the nature of the"authority" forwarded to the accused by the Registrar, nor does hesay that the accused know that such "authority" was necessary.

21. But if the "authority" consisted of someprinted or written paper separate and distinct from the receipt, or of a metaltoken, or if it was contained in some words printed or written above or below,or on the back of the receipt, the accuseds primary intention was not toobtain this authority.

22. If he had any intention at all about it, it was anintention to use it as a means of carrying out his main and primary intention.

23. The point is not devoid of authority.

24. In Jan Mahomed v. Queen Empress I.L.R. 10 Cal. 584 [LQ/CalHC/1884/54] thefacts were these:The appellants, in order to obtain from the Settlement Officera recognition of their right to the title of Loskur, filed before thatofficer a sunnud purporting to be a grant of that title to their father by theRajah of Cachar. They were convicted under Section 471, Indian Penal Code. Onappeal the convictions were quashed. In delivering the judgment of the Court,Mitter, J. said: "Further, on accepting all the facts as correctly foundby the Sessions Judge, I do not think that the appellants are guilty of any offenceunder the Penal Code. The facts are simply these: The appellants, in order toget a recognition from a Settlement Officer that they are entitled to the titleof Loskur, produced a sunnud purporting to have been granted by the Rajah ofCachar. The document is found not to be genuine. The question is, supposing theappellants used this document, knowing it to be not genuine, with intent toobtain recognition of their alleged Loskur title from the Settlement Officer,is it an offence under Section 471 of the Indian Penal Code or under any otherpenal law of the country The Sessions Judge found the appellants guilty underSection 471 of the Indian Penal Code. In using this document, if they had nofraudulent or dishonest intention, they cannot be guilty under Section 471 ofthe Indian Penal Code.

Section 24 of the Code defines the word dishonestly. It isto the following effect: Whoever does anything with the intention of causingwrongful gain to one person or wrongful loss to another person, is said to dothat thing dishonestly," Now the intention of the appellants was not tocause wrongful gain or wrongful loss to any person.

The word fraudulently is thus defined in Section 25 of theCode: A person is said to do a thing fraudulently if he does that thing withintent to defraud, but not otherwise.

In this case evidently the intention of the appellants wasto produce a false belief in the mind of the Settlement Officer that they areentitled to the dignity of Loskur, and in order to produce this belief theyproduced the sunnud A, which has been found to be not genuine. Withoutdefining precisely what would constitute an intent to defraud, we are clearthat it cannot be held in this case that the appellants produced the sunnud todefraud the Settlement Officer, and therefore it cannot be said that theyused the document fraudulently, as defined in Section 25 of the Indian PenalCode. We are therefore unable to agree with the Sessions Judge that theappellants are guilty under Section 471 of the Indian Penal Code. Nor does theact of the appellants in our opinion amount to any other offence. We thereforeset aside the conviction and acquit the appellants.

25. In Queen-Empress v. Munsab Ali Khan Cr. Ref. No. 19 of1891 (unreported) a reference from the Sessions Judge of Patna under Section307, Code of Criminal Procedure, decided by this Bench on the 22nd Decemberlast, the facts were these. The accused was desirous of entering the TempleMedical School at Patna, which under the rules of the Institution he could notdo unless he satisfied the Principal that he had a good knowledge of theEnglish language. With a view of showing that be possessed such knowledge hepresented to the Principal a certificate purporting to be signed (but which asa matter of fact he knew was not signed) by the Head Master of the ChapraAcademy, which stated that he (the accused) had a good knowledge of the Englishlanguage. We held that the accused could not be convicted under Section 471,Indian Penal Code, as there was no dishonest or fraudulent intent.

26. We are therefore of opinion that, upon the facts stated,the accused was not guilty of an offence under Section 471, Indian Penal Code,inasmuch as his use of the forged document, with the knowledge or belief thatit was forged, was not fraudulent or dishonest.

27. The foregoing observations are equally applicable to thecharge of attempting to cheat.

28. The essence of the offence of cheating is a fraudulentor dishonest intention; and the act done towards the commission of the offence,which is requisite to establish the attempt to cheat, must be done with afraudulent or dishonest intent. For the reasons given above we are of opinionthat the facts of the case do not disclose any such intent on the accusedspart.

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Queen-Empress vs. Haradhan (20.04.1892 - CALHC)