TMI Blog1970 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... s under these sections and was awarded a cumulative sentence of three years' rigorous imprisonment and a fine of 3,000/-, in default, two years' rigorous imprisonment. He went in appeal before the High Court 'of Allahabad. The High Court came to the view that the appel- lant had at least committed an offence punishable under section 419 read with s. 109, I.P.C., even if the other charges, for which he had been convicted, may not be established. On this view, and relying on the power of the Court to convert his conviction to appropriate sections of the Indian Penal Code, the High Court substituted the conviction of the appellant under S. 419 read with 9. 109, I.P.C., for the conviction recorded by the trial court, and reduced his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cheat the office of the District Relief and Rehabilitation-cumSettlement Officer, Saharanpur, by dishonestly inducing the office to adjust the debits of Madan Lal and Chuni Lal against the claim of Govind Ram and of using, the forged affidavits in that connection. The trial court convicted the appellant for all these charges, and the appeal in the High Court was against that conviction. The High Court, on appeal, however, convicted the appellant for the offence punishable under section 419 read with S. 109, I.P.C., on 'the finding that the appellant had at least abetted the execution of one false affidavit of Govind Ram which, in fact, was signed by some person other than Govind Ram and that person was wrongly identified by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt did not even care to examine in detail whether all the ingredients of the offence had been established by the prosecution evidence. The only finding of fact was that the appellant, who was known to the Oath Commissioner, wrongly identified some other person as Govind Ram and got the affidavit attested by the Oath Commissioner as if it was being sworn by Govind Ram. This act of wrong identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in section 415, I.P.C., which is as follows Whoever, by deceiving- any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under section 419, substantively or with the aid of section 109, I.P.C., could only have been justified if the facts proved constituted all the ingredients of the offence of cheating. In recording the conviction, the High Court neglected to see whether all those ingredients were proved. On the face of it, though the Oath Commissioner was induced to attest the affidavit by wrong identification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputation or property, so that the Oath Commissioner was never c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of fine; the High Court, thus, made an order which was clearly illegal and in contravention of s. 65, I.P.C. The trial Court had, of course, committed no error in awarding the sentence of two years'rigorous imprisonment in default of payment of fine, because that Court had recorded conviction for five different offences, each punishable with imprisonment for seven years, and the fine of ₹ 3,000,/- was a part of the cumulative sentence for commission of those five offences. We have only pointed out that this error occurred, because the High Court adopted the extraordinary course of convicting the appellant for an offence with which he had never been charged, for which he had never been tried, and without examining wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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