IMPORTANT POINT
Before a person can be held guilty of cheating by personation under section 416 IPC, it must be established that he was guilty of cheating under section 415 IPC.

JUDGMENT

V.C. Varma, J. - The applicant was prosecuted for impersonating as Abdul Rehman before the Additional District Magistrate, Bhopal in the matter of obtaining security for release of one Abdul Jalil. It appears in the present case, that Abdul Jalil was apprehended by the police and taken into police custody under section 151 Criminal Procedure Code. How he went before the Magistrate is not known but it appears that on his production before the Additional District Magistrate, he was asked to furnish surety in a sum of Rs. 2,000/- for his release. The applicant Abdul Hamid posing himself as his brother Abdul Rehman furnished that security in a printed form that was accepted and the accused Abdul Jalil was released. Later, it transpired that at the relevant date and time, applicant's brother Abdul Rehman was out of station. The applicant was therefore, prosecuted under section 205 read with section 419, Indian Penal Code. Alongwith, two other persons Mohammad Buksh and Saeed Khan, who arrested the surety bond. One Yogesh Shukla, Advocate was also prosecuted but he was discharged. All the three were convicted by the Magistrate for offence under section 205, read with section 419, Indian Penal Code. In appeal, the conviction of the applicant under section 419, Indian Penal Code alone has been maintained the finding recorded by the Magistrate, based on the evidence of M.S. Khan (P.W. 1), Nirmal Kumar (P.W. 2) and Ram Satish Singh (P.W. 4), is that on the relevant date Abdul Rehman was not in Bhopal. Having accepted this testimony of these witnesses, the learned Sessions Judge opined that it was not of any consequence if Abdul Rahman was not examined by the prosecution, for he was bound to shield his brother. The finding based upon evidence that the applicant impersonated his brother before the Additional District Magistrate and thus got Abdul Jalil released is when supported from the material on record and cannot be disturbed in this revision.

2. It was argued by the learned counsel for the applicant that the learned Magistrate had no jurisdiction to ask for any surety for release of Abdul Jalil who was only detained under section 151, Criminal Procedure Code. Since the Magistrate's direction to furnish surety itself was illegal and without jurisdiction, says the learned counsel, the applicant cannot be said to have cheated anyone even if he has impersonated as Abdul Rehman. In my opinion, this argument has no substance.

3. Section 415, Indian Penal Code defines 'cheating' as follows:

"415. 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 intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if be were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".".

And according to section 416 of the Penal Code, a person is said to "cheat by personation" if be cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. The combined effect of these two sections is that before a person can he held guilty or cheating by personation, it has to 'be established that he is guilty of cheating as defined under section 415 of the Code. If the person is found to have cheated then anyone of the following ingredients must be established before he is held guilty under section 415 of the Code:

(i) pretension by a person to be some other person.

(j) knowingly substituting one person for another.

(k) representation that he or any other person is a person other than he or such other person really is.

In order to bold a person guilty of cheating it has to be first held in terms of section 415 of the Penal Code, that h