TMI Blog1893 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for an attempt to cheat, and that such an attempt is not an offence under the Indian Penal Code. 4th.--That no other acts attributed to the appellant could be held to constitute the offence of attempting to cheat under the Indian Penal Code. 5th.--That with the substantive charge the charge of abetment must fail. 6th.--That, even if the conviction on the charge of abetment be good, the sentence passed was illegal. 2. The charges upon which the petitioner was convicted were three in number. They consisted of:-- (1) An attempt to cheat, and thereby fraudulently to induce the delivery of a valuable security. (2) Conspiracy with one Asad Ali, and thereby abetment of the offence of cheating and thereby inducing the delivery of a valuable security. (3) Abetment of an attempt to cheat, committed by the aforesaid Asad Ali. 3. Upon conviction of the three offences thus charged, MacCrea was sentenced to rigorous imprisonment for two years. 4. No argument was addressed to us upon the fifth and sixth grounds taken in this petition. The first ground is directed to matters of fact which were distinctly within and were left to the decision of the jury. There was evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government promissory note No. 9764 to have been the property of Husain Ali Khan, chabuk sawar, this was an act sufficiently great for the law to take note of, and an act which it would take note of. 11. As regards proximity, the jury were instructed to consider whether any of the acts were sufficient to excite reasonable apprehension that the act attempted would be carried out and accomplished with the intent to cheat. 12. It is contended by Mr. Reid who appears for the petitioner, that no act committed by MacCrea amounted to more at the outside than a preparation for an attempt to commit the crime, and that no act was punishable under the Indian Penal Code as an attempt, unless it was an act which, if successful, would have resulted in the commission of the crime attempted. 13. In the argument which he addressed to us, the learned counsel drew our attention mainly and almost entirely to the various letters which were addressed by MacCrea to the Comptroller-General's office, and passed by without comment the various other acts committed by MacCrea in the interval between the 17th day of June and the 18th day of October 1891. His contention was two fold; first, that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he arrived at that conclusion not without some doubt, and that he considered the endorsement no part of the document intended to be forged, and that the act of the prisoner in procuring the endorsement would not immediately lead to the forgery. He further observed that the prisoner had had a most narrow escape. The grounds upon which he acquitted the prisoner were, because he considered that no act proved against him went beyond the stage of preparation. 17. We were next referred to the case of The Empress v. Riasat Ali, I.L.R., 7 Cal., 352. In that case the learned Chief Justice appears to have acted upon English precedents, and those precedents, precedents of no modern date. So far as I am concerned, I feel myself unable to follow the English law, because there appears to me a wide difference between the meaning of the word 'attempt' as understood by English lawyers in the phrase attempt to commit, a felony, and the word attempt as actually defined in the Indian Penal Code. 18. If there be such a difference, I have no hesitation in affirming that we are bound to follow the Code. In Reg. v. Cheeseman, one of the cases followed by Sir R. GaRTH, it is laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted for the purpose and with the intent to bring all his preparations to bear upon the mind of the person to be deceived; that with those acts, beginning with the procuring of letters of administration setting out Asad Ali Khan as the lawful owner of Government promissory note No. 9764, the forwarding of those false letters of administration and draft notice for publication in the Gazette, had begun an attempt to cheat; that in that attempt he had committed more than one act of distinct crime and sufficiently near towards completion to arouse apprehension and alarm that the attempt, if not interrupted, would end in the commission of the offence. I do not hold, and have no hesitation in saying, that s. 511 was never meant to cover only the penultimate act towards completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, are done with the intent to commit it and done towards its commission. 21. It is no doubt most difficult to frame a satisfactory' and exhaustive definition which shall lay down for all cases where preparation to commit an offence ends and where attempt to commit that offence begins. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sound one. I do not think the case a fit case for appeal and reject the application. Harrison Falkner Blair, J. 25. I wish to add a few words upon the sections of the Indian Penal Code applicable to this case. 26. The offence, an attempt to commit which was the subject of the charge before us, is created by s. 415 of the Indian Penal Code. The words run as follows:-- Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property or to do certain other acts. Converting that section into a section dealing with attempts it would read:-- Whoever by deceiving or attempting to deceive any person fraudulently or dishonestly attempts to induce, c. 27. That which is done in furtherance of the dishonest attempt, is to attempt to deceive, the act being one which must have a tendency to induce the person so deceived to do that which is dishonestly desired by the deceiver. 28. The definition of attempt is conveyed in s. 511, Indian Penal Code. The words are whoever attempts to commit an offence punishable by this Code -- or to cause such an offence to be committed, and in such attempt does any act towards the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby induce within the meaning of that section has been proved in this case. 32. It may be that further acts having a tendency to deceive might have been required to complete the influence intended upon the mind of the deceived. It may have been that preliminary inquiries and steps of other kinds must have intervened between the act of deception and its entire success; but that would not, in ray opinion, render an act tending directly towards deception the less an attempt within the meaning of s. 511, even though a further act of deception did not follow, which might probably have been required to complete the offence of attempt within the meaning of the English law. 33. The difficulty with s. 511 might easily have been removed by saying that where in such an attempt, using the word in the larger sense, any person does any act cowards the commission of an offence he shall be held to have committed an attempt within the meaning of this section. That I take to be the real meaning and drift of the section, differentiating in a marked manner the definition of attempt in the Indian Penal Code and the accepted English doctrine. 34. I agree that this is not a fit case to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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