Macpherson and Trevelyan, JJ.

1. This is an appeal from an acquittal. The first accusedwas charged with attempting to cheat. The other prisoners were charged withaiding and abetting him in the commission of the offence of cheating.

2. After one witness had been examined for the defence, theMagistrate stopped the case and acquitted the prisoners.

3. When we first heard this appeal the Advocate-Generalappeared for the Grown. At the conclusion of his opening address we held thatthere was no case against Haran Chunder Chatterjee, and accordingly wedischarged him. We then heard Counsel for the other accused and theAdvocate-General in reply. After consideration we discharged the accused JaddubChunder Gangooly, and expressed our opinion that the Magistrate ought not tohave stopped the case for the defence so far as the remaining two accused wereconcerned. We gave them an opportunity of calling evidence before us. We havesince heard such evidence as has been produced on behalf of the accused UmeshChunder Mifcter and Hem Chunder Chatterjee, and must now deal with the case as completed.

4. Although we are told that in dismissing the case theMagistrate made some statement, he did not record his reasons for acquitting,and therefore we have not the advantage of knowing the nature of, or thegrounds for, his opinion.

5. There is no serious difficulty about the facts of thiscase. The chief questions depend upon the effect to be given to those facts,and the inferences to be derived from them.

6. It is contended that the facts proved do not disclose anoffence, and therefore it is desirable to see what are the undoubted facts ofthis case.

7. On the 23rd of May last the principal accused UmeshChunder Mitter sent in to the Currency Office a letter (Exhibit A), enclosingtwo half currency notes for Us. 20 each, stating that the other halves werelost from his box where he kept them, and asking what steps should be taken forthe recovery of the money.

8. On receipt of this letter, Mr. Keene, the AssistantComptroller-General in charge of the Currency Office, caused a search to be madein the Registration Branch of his office to see if there was any other claimagainst the two notes. On such search it was found that the amount of the noteshad been paid to the holder of the other halves.

9. Mr. Keene then caused a document, which is marked ExhibitD, to be sent to Umesh Chunder Mitter. This was sent on the 28th of May, with acovering letter which treated Umesh Chunders letter as an application for thepayment of the value of the notes, and requested him to answer the questionsembodied in the claim.

10. D is a form of claim with questions to be answered bythe claimant.

11. As to his sending this form Mr. Keene states: "Myobject in sending out I) was, believing these men were attempting to cheat, Iwanted them to commit themselves." It is clear that when he sent out D,Mr. Keene did not contemplate paying Umesh Chunder Mitter in respect of thenotes. Within Mr. Keenes experience no notes had been paid a second time, and,as he says, it ought not to happen that they are paid a second time. He wasexamined as to what he would do, in case, after payment to one applicant, asecond applicant were to make out his title, but as such an event had nothappened within his experience his answer is purely hypothetical.

12. The questions contained in this form of claim werefilled in, signed by Umesh Chunder Mitter, and returned to the Currency Officeon the 11th of June. This document, as filled up, is in form and intent anapplication for the payment of the money.

13. In answer to the questions contained in this form, UmeshChunder Mitter stated that he was proprietor of the entire notes, that hereceived them from Haran Chunder Chatterjee of Gobard angah about October 1887,that he himself divided them in halves for the purpose of forwarding them tohis cousin, that in December 1887 he lost the halves from his box, and that thepersons who could give evidence as to his possession of the entire notes or asto the circumstances of the loss were Hem Chunder Chatterjee and Jadub ChunderGangooly.

14. The Currency Office had paid in respect of the otherhalves in 1871. On the 17th of November 1871, those half notes were withdrawnfrom circulation, and on the 18th of the same month they were cancelled. Itfollows from this that the statement made by Umesh Chunder that he received theentire notes from Haran Chunder Chatterjee in October 1887 and divided themhimself is untrue. On the 13th of June another printed form is sent to UmeshChunder Mitter. It asks for a certificate from the party from whom the claimantreceived the whole notes, of his having paid the notes to the claimant, andalso for a declaration of the persons named in the form Exhibit D, settingforth what they know as to the whole notes having been the property of theclaimant and in his possession, and also as to the subsequent loss of the halfnotes in question. In answer to this letter Umesh Chunder Mitter sends in thecertificate and declaration asked for.

15. The certificate purports to be signed by Haran ChunderChatterjee, and is as follows:

I do hereby certify that about seven or eight months ago Ihave sent two full notes of Rs. 20 each to Baboo Umesh Chunder Mitter ofAreadah, the numbers of which are stated below A/73 21687 for Rs. (20) twenty,A/74 61346 for Rs. (20) twenty.

16. These numbers correspond with the numbers of the halfnotes sent in with the first letter. The statements in this certificate wereunquestionably untrue to the knowledge of Umesh Chunder Mitter.

17. The declaration was written out by the accused HemChunder Chatterjee and was signed by him and the accused Jadub ChunderGangooly, and was as follows:

We declare to the best of our knowledge that two full notes,viz., A/73 21637 and A/74 61346 of rupees twenty each were handed over to BabooUmesh Chunder Mitter of Areadah about eight months ago when we were presentthere.

18. The statements in this declaration were unquestionablyuntrue to the knowledge of Umesh Chunder Mitter and Hem Chunder Chatterjee.

19. On the 10th of July, Mr. Keene wrote to Umesh ChunderMitter, asking him to come and see him at the Paper Currency Office on the 12thof that month at 1 P.M. He came at the appointed time. Mr. Hume, the GovernmentProsecutor, then questioned him. He was asked if the answers in D were true. Hesaid they were. He was asked if he filled in the answers personally. He saidno, but by his nephew Jagadish Chunder Gangooly. He further said that theanswers were filled in under his orders, and in his presence at his dictation,and signed by the witnesses named in the form, which was also signed byhimself. He was then specially asked about answer No. 2. He said: "Yes Iam the proprietor of the entire notes, and 1 received them from Haran ChunderChatterjee of Gobardangah in October 1887." Mr. Hume then asked Umesh ifhe had cut the notes in half. He said: "I think I must have, but am notsure. I have had many notes."" Mr. Hume then showed him thecertificate and declaration. He said that he knew them, and had received thecertificate from Haran Chunder Chatterjee, and the declaration from HemChundei Chatterjee and Jadub Chunder Gangooly, and that he had, sent thecertificate and declaration to the Currency Office through Jadub ChunderGangooly. Mr. Hume then said to him: "Baboo, would you be surprised tohear that the other halves of the notes mentioned in your application werecancelled in the Currency Office in November 1871" He said nothing then,but began to tremble. Mr. Hume said: Baboo you are in a great mess. This is anattempt to cheat." He said: 1 did not intend to cheat." Mr. Humesaid: "You must explain that before a Magistrate." Mr. Hume said:"Why did you tell a lie in your application" He said: I did wrong,sir." Mr. Hume then went with him into Mr. Keenes room, and in Mr.Keenes presence said: "Baboo, can you explain this matter "He said:I am a poor man, I have no money. I received the half notes from Haran ChunderChatterjee, who told me to try and get the money from the CurrencyOffice." There the interview ended.

20. On the next day warrants were issued; when arrested HemChunder Chatterjee produced a Bengali letter to which we shall hereafter refer.

21. This is the case for the prosecution.

22. There was no evidence against Haran Chunder Chatterjee,and the only evidence against Jadub Chunder Gangooly was that he had signed thecertificate to which we have referred. His defence was that he signed thatdocument without reading it and at the request of Umesh Chunder Mitter. Itappears that he has always borne a good character, and although it rarelyhappens that a man signs a, short document of this description without readingit, it is possible that his story may be true, and therefore we thought wecould discharge him. As far as the remaining two accused are concerned, theirdefence is identical. We have heard a most elaborate argument, consisting oftwo main contentions. In the first place it is said that the acts committed atthe most amount to a preparation to commit an offence, and in the second placeit is said that it was the duty of the prosecution to show that the defendantsin what they did acted dishonestly and that that has not been proved.

23. We do not think then: can be any doubt that, apart fromthe second Question to which we shall presently refer, the facts here amount,to an attempt and not merely to preparation. The letter written on the 23rd ofMay is merely a letter of enquiry, and does not amount to an attempt. It isonly a step in the preparation for the attempt. In sending it the writer didnot commit himself. The document D, however, is an application for the paymentof the money, and is the usual form in which such applications are made. Anapplication for money is surely an attempt to obtain money. The application formoney under a false pretence, as a rule, concludes the acts of the offender;unless anything occurs to prevent the payment he gets the money. Whether hegets the money or not, does not necessarily depend uponany future act of his.

24. If authority were necessary for this proposition, thecase cited to us of Beg v. Hensler 11 Cox CO. 570 is only distinguishable bythe circumstance that this particular question was not argued in that case. Butthat case, we think, disposes of another brunch of the same contention raisedby the respondents. It is said that because Mr. Keone, before the applicationwas made to him, knew that the other halves were in the Currency Office, andknew that the matters stated by the applicant were untrue, and would not havepaid the money to the applicant, the offence of cheating could not have beencommitted, and therefore the attempt to cheat could not have been committed.What Mr. Keene says only shows that the offence of cheating could not have beencommitted. A man may attempt to cheat, although the person he attempts to cheatis forewarned, and is therefore not cheated. The case we have cited is on thisquestion indistinguishable from the present case.

25. There the prisoner was indicted for attempting to obtainmoney by false pretences in a begging letter. When he paid the money, andapparently when he received the letter, the prosecutor knew its contents to beuntrue. In his judgment the Chief Baron says: "This is an attempt by theprisoner to obtain money by false pretences which might have been so obtained. Themoney was not so obtained, because the prosecutor remembered something whichhad been told him previously. In my opinion, as soon as ever the letter was putinto the post, the offence was committed." In the present case the moneywas withheld because of the information which Mr. Keene obtained in his office.

26. Mr. Gay, who is Mr. Keenes official superior, says thatif the claim, the declaration and the certificate had come to him he would, inthe ordinary course, have ordered payment.

27. In Reg. v. Hensler Fas in the present case, counsel forthe prisoner argued that, as the statutable offence could not have beencommitted, the prisoner could not be convicted of attempting to commit it. Thisargument was answered by two of the Judges in the following words:"Blackburn, J.-You may attempt to steal from a man who is too strong toprevent you, MELLOR, J.-Or an attempt may be made to steal a watch that is toostrongly fastened by a guard. Here the prosecutor had the money, and wascapable of being deceived, and the prisoner attempted to deceive him."

28. One more point was raised on this question of attempt.It appears from Mr. Gays evidence that before money is paid on a currency noteit is usual to take a bond of indemnity from the claimant.

29. It is argued that in this case the attempt was notcompleted because the bond was not signed. We do not think there is anything inthis argument. The application for the money is, we think, the attempt, or atany rate sufficient to constitute an attempt. The execution of the bond ofindemnity is not a portion of the application. It is a precaution taken by theperson sought to be cheated, and is an act which would ordinarily take placebefore the offence of cheating could be completed. As far as the applicant isconcerned he would be willing to take the money without the indemnity. Hisoffence is making the false pretence and asking for the money.

30. It seems to us that the execution of the bond ofindemnity is not an act of the accused forming any portion of the acts whichconstitute the commission of the offence. The offence would be just as completewhether an indemnity was or was not insisted upon. The Currency Officeauthorities may, if they like, dispense with the indemnity. The object of thebond is to secure the re-payment of the money if it has been wrongly paid. Theobject of it is not to prevent the payment, but to indemnify the Government incase any one else claims the money. We have carefully examined the Englishcases cited by counsel for the accused, and we do not think that they have anyapplication to the present case. We think it quite clear that an attempt wasmade.

31. Before considering the second question it will bedesirable to examine the evidence for the defence. It is unquestionably untruethat the whole notes ever belonged to Umesh Chunder Mitter, or that they evercame into his hands. This is the case both for the prosecution and for thedefence. According to the evidence for the defence, it is untrue that thehalves ever came from the hands of Haran Chunder Chatterjee into his hands. Thedefence trace the half notes back. They call in the first place a lady namedDin Tarini Dabee, who is said to have had them in her possession.

32. Almost at the beginning of her exanimation-in-chief, thecounsel examining this lady plied her with leading questions and otherquestions of a nature only allowable in cross-examination. There seems to us tohave been no excuse whatever for this course, and the result is that, so far asher examination-in-chief is concerned, it is difficult to use it at all asevidence on behalf of the defendant calling her, though it may be used asevidence against him. It is, however, clear from the other evidence that thesehalf notes, which were afterwards sent to the Currency Office, came from thislady. She says that she found them in her box about a year and a half ago, andwe do not think that there is any doubt that she gave them to her niece, thewife of the defendant, Hem Chunder Chatterjee.

33. There is some conflict of testimony between the aunt andthe niece as to what took place when the half notes were handed over. The auntsays: "One day we were seated together, and I told my niece that there wassome goolmal in respect of the numbers of a 20- rupee note. She asked me if Ihad shown this note to any one. I said yes, I showed it to a person who hadcalled a few days previously to receive money. My niece said if you give thenote to me I will show it to my husband. Five or six days later, when my niececame home, she took the note away from me; nothing further took place.

One day I met her in Calcutta. She spoke to me about thisnote and asked me whence I got the note. I said I did not remember, but Ibelieved I got it in the course of my money-lending business.

34. She is then asked in examination-in-chief somequestions, most of which are objectionable in form. They are as follows:

Q. What else did your niece say to you or you to her

A. Nothing.

Q. Did you want to get money on these pieces of note

A. No mention was made about obtaining money.

Q. Did you wish to get the money

A. If the note was cashed, and the money paid to me, I wouldhave taken it.

Q. By whom was the note to be cashed

A. I gave no direction to my niece as to by whom the notewas to be cashed. I made the note over to her that she might show it to herhusband.

Q. Why did you want the note to be shown

A. Because my niece said give it to me and I will show itto my husband.

Q. But what did you understand by your nieces wanting to showthe note to her husband

A. I understood that it was taken to be shown to herhusband.

Q. For what purpose !

A. Because he is a man of education, and knows how to readand write. I have a sircar in the house; he can read and write Bengali.

35. The niece has been called before us and she now says-

When she gave me the notes she said these notes have beenlying with me; I dont know for how long, and I dont know what has become ofthe other halves of the notes. She said give these notes to your husband, andask him to change these notes and send me Rs. 40.

36. Of these two statements we have no hesitation inpreferring that given by the aunt. The husband of the niece is one of theaccused, and she is therefore much interested. The aunts story was told at thetime when the details of the events must have been fairly fresh in her memory,and it is pretty clear that her story is substantially accurate.

37. On getting the notes the niece says that she handed themto her husband, saying: "Your aunt-in-law has asked me to hand over to youthese two notes; you change them and send her 40 rupees." Her husband,addressing Umesh Chunder Mitter, who was then present, said: "I havehardly any leisure be go out of my office. Will you change these notes and sendthe money to me at my house" The application seems then to have beenmade.

38. It does not appear that the aunt ever said that she hadhad the corresponding halves in her possession. The niece does not say that sheor her husband told Umesh Chunder Mitter that Din Tarini had ever had the wholenotes in her possession, or indeed said anything about the whole notes.

39. In spite of this, Umesh Chunder Mitter, in the letterwhich he first wrote, said that the other halves were lost from his box wherehe kept them. This was untrue, as far as he was concerned; and as far as DinTarini was concerned, it does not appear whether it was true or not. He wasapparently aware that he could not recover the money unless he satisfactorilyaccounted for the loss of the other halves of the notes. It was for this reasonthat he invented this falsehood.

40. The inference from this falsehood is that Umesh ChunderMitter knew that Din Tarini had never had the other halves. If he had known, orlearnt of it, there is no real reason why he should not have told the truth.The form D is then sent to Umesh Chunder Mitter, and then occurs an incidentwhich has been much relied upon by the defence. It is said that a letter waswritten to which the Bengali letter, produced by Hem Chunder, was an answer.The Bengali letter produced appears to have been written in the name of theaunt to her niece in answer to a letter addressed to Din Tarini, and therefore,although the evidence of the sending and of the contents of such letter is of amost suspicious character, we do not think we ought to repudiate such letter,and we accept the story as true.

41. The witness who speaks to it refers to the contents asfollows:

The writer of the letter was enquiring in reference to thenotes which had been given to her as to how long they were with the person whosent it, and where he or she got it from. I dont remember anything more thanthis.

42. In answer to this letter, the following letter waswritten at Din Tarinis request to her niece:

I have received the particulars of your letter. The note (ornotes) about which you wrote to me, that note (or those notes) I received inthe course of my money-lending business. Who gave it (or them) I dont know. Ithas (or they have) been with me for many days, that 1 know.

43. After the receipt of this letter D was filled up andsent to the Currency Office. There is nothing in the letter which gives thesmallest colour for the false statements in the claim, in the certificate andin the declaration. This is the whole of the evidence. It is noticeable thatDin Tarini never claimed to have possessed the other halves, and that no oneever told either Horn Chunder Chatterjee or Umesh Chunder Mitter that shepossessed them. On the contrary, the falsehood of their statements shows thatthese persons were aware that Din Tarini never possessed the other halves, andit was necessary for them to tell these untruths in order to account for theother halves.

44. On this state of facts it was contended that no case hasbeen made out. It was said that, although the false pretence was made out, itwas necessary for the prosecution to show that the attempt had been madedishonestly. There is, we think, no doubt that the prosecution must show thatthe act was done dishonestly. "Dishonestly" is defined in the PenalCode as follows:

Whoever does anything with the intention of causing wrongfulgain to one person, or wrongful loss to another person, is said to do thatthing dishonestly.

45. The definitions of "wrongful loss" and "wrongfulgain" show that what the prosecution has to prove is that the Governmentwas as against the applicant legally entitled to the 40 rupees, or that theapplicant was not entitled. Unquestionably the means used by the applicant wereunlawful within the meaning of the Penal Code. If the applicant had any realreason to suppose that he or the person for whom he was acting was legallyentitled to the rupees 40, he would not have committed the offence charged. Wedo not think there can be any doubt that Government is entitled to retain the40 rupees, that is to say, is entitled in law to the money until it is claimedby a person who has been the holder of the full notes. They are not obliged topay the money to the holder of the half notes except as being the personentitled to the whole notes. It was contended that the prosecution should showthat somebody, other than Din Tarini, was the owner of the full notes. Thisargument might possibly apply if "dishonestly" only included"wrongful gain," but it includes in the alternative "wrongfulloss." Government being entitled to retain the money, in the absence ofproof of ownership of the full notes, the definition of "wrongfulloss," and consequently the definition of "dishonestly," is heresatisfied. In this case the statement that the applicant owned the whole notesis unquestionably false, and false to his knowledge.

46. The accused have both borne a good character for sometime. If they were to profit at all by the offence-and of this there is somedoubt-the profit would have been small as far as these notes were concerned.Both these are circumstances which, in criminal cases, have occasionally greatweight, but neither of them can dispose of clear and undisputed facts. So faras the evidence of good character is concerned the false statements seem to usto dissipate at once the effect of that evidence, except so far as the questionof punishment is concerned. A man who has to his credit an unblemishedcharacter may, of course, claim that it be considered on the question ofpunishment. It is sad to see men who have by honest work earned the respect oftheir employers, and of those associated with them, inconsiderately bringingthemselves within the grasp of the Criminal law, but the record of many of suchcases is to he found in Criminal Courts. We do not think that there is any realdistinction between the cases of the two accused. Hem Chunder Chatterjee wroteout the certificate, and there is reason to suppose that he induced UmeshChunder Mitter to make the application.

47. There is one more contention with which we must deal: Itis argued that we ought not in an appeal lightly to set aside the order of theMagistrate. We agree with this contention. We do not think we ought tointerfere unless we are fully satisfied from the evidence that the crime hasbeen proved, and are also satisfied that the Magistrate had no reasonableground for acquitting the prisoners.

48. Assuming that the reasons which actuated the Magistratein discharging the prisoners coincide with the arguments which have beenaddressed to us by counsel for the respondents, we think that the Magistratehad no reasonable ground for acquitting the prisoners, and that the crime wasfully proved. We convict the accused Umesh Chunder Mitter under Sections 420and 511, Indian Penal Code, and convict Hem Chunder Chatterjee of abetting theoffence committed by Umesh Chunder Mitter.

49. As to sentence, we think that, considering all thecircumstances of the case, and especially the good character which the accusedhave heretofore borne, the ends of justice will be satisfied by the inflictionof a fine. We sentence each of the accused to pay a fine of Rs. 200; in defaultto suffer simple imprisonment for the period of two months.

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The Government of Bengalvs. Umesh Chunder Mitter and Ors.(06.11.1888 - CALHC)