Rowland, J.The appellant Sukhamoy Maitra was put on his trial on charges under Sections 120 and 477-A, Penal Code, along with Rajdular Singh who was charged as an abettor, and the trial ended in the conviction of the appellant, who was sentenced to three years rigorous imprisonment, and the acquittal of the co-accused. Of the assessors with whose aid the trial was held, three were of opinion that both accused were guilty and one thought that both should be given the benefit of doubt. The facts have been stated in the clear and careful judgment of the trial Court. I shall outline them as briefly as possible. Most of the facts are admitted and the points of controversy in the appeal have been fairly and fully placed before us in an able argument.

2. The appellant was a Sub-overseer in the Wards and Encumbered Estates Department in the district of Palamau and it was his duty to prepare estimates of repair works to buildings, etc," of the estates under administration, to supervise the works, to measure and certify the amount of work done and calculate what was due to the contractor to whom payment was made on bills prepared by this Sub-overseer. One of the estates under management under the Encumbered Estates Act was Bisrampur, and the charges relate to special repairs to the buildings at Bisrampur where the proprietor and some relatives entitled to maintenance from the estate resided. The buildings had been damaged in the earthquake of January 1934, and, after the preparation and loss of an earlier estimate, repairs were taken up in the financial year 1935-36 on an estimate prepared by the appellant dated 25th June 1935. The estimate amounting to Rs. 2382 was sanctioned in July 1935 by the Deputy Commissioner and the work entrusted to Rajdular Singh for execution. Advances were made to the contractor from time to time, that is to say Rs. 300 on 26th June 1935, Rs. 200 on 9th August 1935, Rs. 300 on 24th August 1935 and Rs. 250 on 20th January 1936. Bricks valued at Rs. 150 were supplied from a kiln belonging to the estate.

3. The rules of account required that the initial advance should be adjusted within six months. To meet this requirement, the appellant in December 1935 prepared a bill for work amounting to Rs. 801.11-0 which he certified to have been done as against the advances hitherto taken amounting to Rs. 800. The rules of account further required that the grant which had been sanctioned for the repairs during the year 1935-36 should be spent before the end of the financial year, otherwise the sanction would lapse and a fresh application for sanction would be necessary.

4. The appellant prepared a bill purporting to be based on measurements made on 25th March 1936. The bill contained a certificate that the work had been satisfactorily completed and had been measured by the appellant on 25th March 1936, measurements being entered at pp. 62-68 of his measurement book and a certificate given on the bill by the General Manager that he had inspected the work and satisfied himself to the best of his ability that it had been satisfactorily done. On these certificates the bill was passed and paid. The managers inspection is said to have taken place on 28th March 1936. The prosecution case is that the appellant on 25th March 1936 did not make any measurement at all; he prepared fictitious entries in his measurement book based not on the work actually done but on the estimate.

5. The work in fact done was much less than that billed for, and the false certificate of measurement enabled the contractor fraudulently to draw Rs. 704 in excess of what would have been found due to him had proper measurement been made. The appellant has admitted that the measurements in the measurement book were fictitious; that he had not in fact measured up the work and that not all of the items specified in the measurement book had been done. But he says that, as the work progressed, the proprietor and the khorposhdars from time to time drew attention to repairs urgently needed and a good deal of work was done which had not been provided for in the estimate. That there was a quantity of work done which is not in the estimate is admitted by the prosecution. Over Rs. 500 worth of such work was in fact measured up by the witness Kali Dyal. The appellants case is that if the whole of the work done by the contractor had been measured up, it would have been found that the contractor in fact had not been overpaid but had done work in excess of the amount billed for.

6. The defence of the other accused was on similar lines except that he disclaimed all responsibility for the preparation of the bill. He says that he had the managers order to do urgent repairs which were not included in the estimate and he alleges that the cost exceeded the estimate, and that proper measurement of the works would show that some amount is still due to him. Thus the charge of cheating is founded on the allegation that the appellant wilfully certified completion of work to the value of Rs. 2400 knowing that much less work had really been done, and intending to cause wrongful gain to the contractor and wrongful loss to the estate. The contractor was charged with abetment of the offence.

7. I may here explain that the buildings at Bisrampur for which estimate had been prepared are in three blocks standing on a garh or mound. In these blocks the proprietor and members of the family resided. Outside and below the garh were a number of out-buildings and the contractor asserted (1) that he had done extensive repairs to these out. buildings in addition to what he had done in the three blocks on the garh, (2) that the work done in those three blocks themselves was more than what credit has been given for.

8. The repairs which had been done and paid for in the year 1935-36 were not sufficient to put the buildings in a thoroughly good state of repair, and on 13th July 1936 the appellant wrote to the Assistant Manager asking him to come to Bisrampur and inspect the buildings and see the necessary repairs for which a further estimate would be needed. The Assistant Manager went there, and on 20th June 1936 submitted a report not to the General Manager but to the Deputy Commissioner in which he said that it appeared to him that very little repair was done in comparison with the amount of Rs. 2400 spent, and requested that before estimates for further repairs were sanctioned the measurements might be checked and verified. The Deputy Commissioner who had previously impounded the appellants measurement book sent it on 30th June to Babu Kali Dayal, Sadar Overseer, District Board. He asked that officer to check and verify the measurements in the presence of the Sub-Overseer and contractor concerned and some reliable khorposhdars and if necessary in the presence of the Sub-Inspector of Police of Bisrampur. Measurements were made on 2nd and 3rd July by Babu Kali Dayal in presence of the Sub-Inspector of Police and of the appellant Sukhamoy Maitra, but not of the contractor. The Overseer on measuring the work shown to him prepared a comparative statement concluding that the contractor had been overpaid by Rs. 704. The Deputy Commissioner passed an order on 7th July 1936 directing the Wards Estates Deputy Collector "to scrutinize the papers and lodge information with the police". The Deputy Commissioner did not call for any explanation from the contractor nor did his order leave it open to the Wards Estates Deputy Collector to exercise any discretion or to call for explanation from the contractor or the appellant. The Deputy Collector did not spend long in scrutinizing the papers to see whether there was a prima facie case; he obeyed orders and lodged a first information the next day, 8th July 1936. The information is not sent to the officer in charge of the police station in the ordinary way, but direct to the Circle Inspector, Sadar Circle, whom the letter requests to "investigate the matter personally" and insists that "prompt steps are necessary". The Inspector thought fit to take the orders of his Police Superintendent before complying with this request; the necessary order was obtained the same day. The Inspector visited Bisrampur in presence of the District Board Overseer and of the proprietor and some khorposhdars of the estate, but in the absence of both the accused. Charge sheet was submitted by the Inspector on 9th August 1936 not only against the appellant and the contractor against whom the information had been laid but also against a third accused, namely Babu Hemendra Nath Gupta, the General Manager of the Wards and Ennumbered Estates.

9. It has been suggested for the appellant that the General Manager was made an accused because he was a person who, if this bad not been done, was a necessary witness in the case and his evidence would have demolished the prosecution case. It is suggested that the Assistant Manager and the Deputy Commissioner were anxious to secure the conviction of the appellant because he had incurred their displeasure. Hence criminal proceedings were launched without giving either him or the contractor an opportunity to explain. (His Lordship after discussing relevant evidence at length proceeded.) I do not think it necessary to go into every detail of these items for the substance of the charge of cheating is that the appellant in order to cause wrongful gain to the contractor wilfully and fraudulently certified work known by him to be substantially less than the amount for which he drew the bill; and I have said enough I think to show that the evidence falls short of establishing this. As already stated, at no time were measurements taken in presence of the contractor, though the defence repeatedly asked for this during the commitment proceedings. A procedure certainly not fair to the contractor, was perhaps induced by over-anxiety to secure by all means the conviction of the appellant. So far as the conviction u/s 420 is concerned, I would allow the appeal and acquit the appellant on this charge.

10. The second charge, that of an offence u/s 477-A, remains to be considered. Taking the view of the facts most favourable to the accused, that on inspection of the repairs he formed a genuine impression in his mind that work had been done of a value not less than that of the work estimated for, the fact remains both proved and admitted that he did not measure the work but entered in his book fictitious figures of measurements he had not made. The point to be seen is whether this wilful falsification of books and accounts was done fraudulently or with intent to defraud within the meaning of Section 477-A, I.P.C. A reference to Section 25 of the Code shows that the expressions "fraudulently" and "with intent to defraud" are synonymous; but there is no further definition of their meaning in the Code. In the result there have been different view expressed at different times as to acts which are or are not fraudulent. Most of the decisions are with reference to section of the Code dealing with forgery and forged documents, but where the elements that go to make up fraud are discussed, we may get assistance from them. In the matter of Dhunum Kazee 1883. 9 Cal. 53 Norris J. said:

Let a persons title to property be ever so good, yet if in the course of an action brought against him to gain possession of the property he uses by way of supporting his title, though there be no necessity for the use of it, a forged document such as this I am dearly of opinion that he uses it fraudulently.

11. I do not find that any of the later cases go so far as this. In a later decision of the same Court, Queen-Empress v. Haradhan 1892.19 Cal. 380 the extreme view on the other side is taken, namely that making or using a false document wilt not be considered fraudulent unless there be intention to cause wrongful loss or wrongful gain. The document was a forged certificate or testimonial. This dictum which does not seem to accord with Illustration (k) to Section 464, I.P.C., was overruled by a Full Bench of the same Court in Queen-Empress v. Abbas Ali (1898) 25 Cal. 512. It was there pointed out with reference to the use of the expressions "dishonestly" and "fraudulently" that one could hardly suppose the latter expression to be mere surplus age, as it would be if the element of deprivation of property was a necessary ingredient in fraud; and it was held that

it is not an essential quality of the fraud mentioned in the section that it should result in or aim at the deprivation of property.

12. The document was a false certificate of competency as an engine-room Tindal used to obtain admission to an examination. This view has been generally accepted. In Queen-Empress v. Muhammad Saeed Khan (1899) 21 All. 113 the accused, a head constable, had inserted false entries in his character roll, with the intention of scouring advancement in the service for himself at the expense of others. This was held to be fraudulent. An extract was cited from Sir James Fitzjames Stephens History of the Criminal Law of England which has since been used in several of the later decisions, and in which it is said that two elements-are essential, namely:

First deceit or an intention to deceive or in some cases mere secrecy; and secondly, either actual injury or possible injury or intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.

13. It was added that when the author of the deceit seeks some advantage to himself it can generally be assumed that there is an equivalent in loss or risk of loss to some one else, and if so there was fraud. The Full Bench decision of the Calcutta High Court in Queen-Empress v. Abbas Ali (1898) 25 Cal. 512 and the view of Banerji J in Queen-Empress v. Muhammad Saeed Khan (1899) 21 All. 113 were approved and followed by a Full Bench of the Madras High Court in Kottamraju Venkatrayudu v. Emperor (1905) 28 Mad. 90. The accused had attempted by the use of a false document to obtain admission to a University examination. It was said, the University prescribed certain qualifications including a certificate of respectability. This, of course, is to protect the University against private candidates who are not respectable. If the candidate who fabricated the certificate did so with the intention that the University should take action on it, it must be taken that he did so with intent to cause loss or detriment to the University. The majority of the Full Bench took this view. Subrahmania Ayyar J. differed, being "unable to gather what could be the loss or the risk of loss, in a case such as this". He does not appear to have questioned the principle that if loss or risk of loss was intended, that would amount to fraud. It would seem that the difference between an act done dishonestly and an act done fraudulently is this. If there is the intention by the deceit practised to cause wrongful loss that is dishonesty; but even in the absence of such an intention, if the deceitful act wilfully exposes anyone to risk of loss, there is fraud. A case is stated in Illus. (e) to Section 464:

A draws a bill of exchange on himself in the name of B without Bs authority, intending to discount it as a genuine bill with a banker and Intending to take up the bill on maturity. Here as A draws the bill with intent to deceive the banker by leading him to suppose that he had the security of B and thereby to discount the bill, A is guilty of forgery.

14. Evidently, the banker, though no loss was intended to be actually caused to him, is put to a risk of loss in consequence of the deceit; and that makes complete the ingredients of fraud. In agreement with this principle, it has been held that the promulgation of false statements in a statutory report of a company, not intending thereby to cause loss to anyone but to induce members of the public to invest money in the Company, that is to say to take a risk of loss, is fraudulent: Ram Chandra v. Emperor A.I.R.1926. Lah. 385.

15. On this view of the law, it is no answer to the charge for the accused to say that accused did not know that wrongful loss would be caused to Government or wrongful gain to the contractor when ha certified the correctness of a claim which accused believed, or shall we say hoped was not exaggerated. There are indications that accused at the time may not have regarded himself as doing a gravely criminal act. In his written statement, he says that the procedure followed by him was known to the General Manager who though at first annoyed, acquiesced in order to avoid hardship to the contractor. The General Manager has not been examined: there is an order in his handwriting endorsed on the bill Ex. 18, in these terms: "Estimate should be correctly made with the deviations done" and a note in the writing of appellant as to there being some deviations from the estimate, on the last page of the bill. These are relied on by the defence as showing that the Manager was aware of the procedure followed by the appellant. The prosecution denounce them as forgeries subsequently interpolated by conspiracy between this accused and the Manager who is regarded as being equally guilty. The only witness who could have said whether these writings were or were not on the bill when it was passed for payment was the accountant and he was not asked that question; this part of the prosecution case is left resting on inference. It is not necessary to decide it here; there are sufficient indications elsewhere that the accused admitted to the Manager that the entries in pp. 62-68 of his measurement book were bogus entries.

16. Again, when Kali Dayal went to check the work on 2nd and 3rd July, and found the accuseds entries of measurement to be an almost exact reproduction of the quantities in the estimate, he asked S. Maitra and the latter then and there said that he had not measured the work on the spot. It may be that the appellant when he falsified his measurement book did not realize that he was committing the serious crime for which Section 477-A, I.P.C., provides the punishment: but it can hardly be that he was unaware that it is an offence punishable with six months rigorous imprisonment u/s 182 of that Code to give to any public servant any information which he knows or believes to be false, intending to cause such public servant to do anything which he ought not to do if he had full knowledge of the true facts.

17. It is suggested in the cross-examination of Kali Dayal that to avoid the lapsing of grants, and resulting delay and extra correspondence, it is no uncommon thing for bills to be prepared by copying the estimates without measuring the work done; in other words,, that the consciences of many are as insensitive to scruples on such a matter as the conscience of accused. It was denied, and there is no evidence to prove the suggestion. If there is any such wide-spread laxity, it is indeed deplorable.

18. For, on the principles which can be deduced from the relevant sections of the Penal Code and the decisions which I have examined, it is impossible not to hold that such acts as are proved against the accused are fraudulent and amount to the offence punishable u/s 477-A of the Code. He wilfully falsified the measurement book and bill with the intent that the contractors bill might be passed without actual measurement. Proof by actual measurement is the safeguard against excess claim, overpayment and consequent loss to the Estate and the Department. When the accused made the entries indicating that the claim had been proved by measurement and the Estates interests had been protected, he thereby wilfully exposed the Estate to risk of loss. This is fraud. All the elements necessary to constitute the offence of fraudulent falsification of accounts being thus established, I would maintain the conviction u/s 477-A, I.P.C., but in the circumstances would reduce the sentence to one of six months rigorous imprisonment.

Varma, J.

I agree.