Present: Middleton J.

THE KING v. FERNANDO.

Attempting to cheat by false personation-Fraudulent and dishonest- Ceylon Penal Code, ss. 398, 402, and 490.

The accused produced one Isa before a notary and falsely pretended that Isa was one Ligona, and eneavoured to get a deed of mortgage executed by the notary in favour of one Arumugam Chetty with the object of obtaining a loan from him.

Held, that the accused was guilty of attempting to cheat the Chetty.

Middleton J.-As regards the first count (attempting to cheat the notary), there is no evidence given by the notary to prove that a personation would affect his reputation, although I have very little doubt that it might have done so if the personation had succeeded and had been subsequently repudiated by the accused.

THE facts are set out in the judgment of the learned District Judge (J. Scott, Esq.): -

The facts in this case are practically admitted by the defence. The accused in October last came to Negombo with a. title deed of his mistress Ligona in his pocket in order to raise a sum of money on it. Ligona did not accompany him. He went to a Chetty, who agreed to lend the sum of money on a mortgage of a land described in the title deed, provided both accused and his mistress jointly and severally bound themselves by the mortgage bond. Accused said his wife could be produced at once to sign the deed, and so he and the Chetty repaired to a notary and gave him instructions as to the drawing up of the mortgage bond. The notary drew up the deed, and later in the same day accused took a girl, Isa, to the notary's office to sign the deed as his mistress Ligona. The Chetty also attended, but when the deed was

about to be signed it was discovered that the woman present was not Ligona, but was personating her, hence this prosecution of the accused for attempting to cheat by personation both the notary and the Chetty. It is quite clear to me that accused set out with the full intention of substituting some one (probably the woman Isa all along as his mistress Ligona in the signing of the mortgage bond. Neither woman can write, and accused thought it would be easy enough for one woman to make her mark instead of another, and so it would be, and so it is frequently done, I have no doubt. All would have gone well, but for the discovery of the substitution or personation. The only question to decide is whether such personation amounts to cheating by personation as defined in the Penal Code.

By section 398 cheating is defined, first, as fraudulently or dishonestly inducing a person by deception to deliver any property. In this case accused undoubtedly attempted by deception to induce the Chetty to lend him Rs. 125, but was it done with fraudulent or dishonest intention? I think not. He did not intend to defraud the Chetty. He wanted to borrow money from him on a mortgage drawn up in a regular manner; the only irregularity would have been the signing of the bond by Isa instead of by Ligona, because for some reason or other Ligona could not be present. That woman states she consented to her being represented by another; but even if she had not consented, I cannot see that the Chetty was thereby defrauded. It would be rather the woman than the Chetty who would have been defrauded. The Chetty, at any rate, would have his mortgage bond, which he could put in suit and recover on, and if Ligona impugned the bond, the Chetty would still have his legal right to recover the money lent from accused, who is a landed proprietor.

The accused is acquitted of the charge of attempting to cheat the Chetty by personation. As to the charge of attempting to cheat the notary, we must look at the alternative definition of cheating in section 398, which is intentionally inducing any person by deception to do anything which he would not do if he were not so deceived, and which act causes or is likely to cause damage or harm to