1923  Present : Jayawardene J.

THE KING v. SILVA et al.

 22-D. C. Kurunegala, 5,295

Attempt to cheat-Attempt-Preparation- Conspiracy-Abetment-Penal Code, ss. 109, 408, and 409.

The first accused, with the object of playing a confidence trick on H, told him that the second accused was a very wealthy Chetty and that he was fond of gambling, and that a lot of money could be made by playing a game of cards with him. He demonstrated to H that by a certain manipulation of the cards as they were put back in the pack, after they had been dealt out, on the tenth deal and subsequent deals the dealer would get all the picture card*. H was asked to take Rs. 20,000. BE learnt subsequently that by extracting one card from the pack, all the picture cards would have gone to the other player. The second accused was not a rich man. H informed the police, and went to the place indicated by the first accused. Before the play commenced, the police arrived and arrested the first and second accused. The bags brought by the second accused did not contain money, but only pieces of paper. The two accused were convicted with attempting to cheat H.

Held, that the acts done by the first accused amounted only to a preparation to commit the offence of cheating, and did not amount to an attempt to commit that offence.

The Supreme Court held that first accused had conspired with the second accused to cheat, and was guilty of abetment of cheating under sections 100 and 403 of the Penal Code.

"The offence of cheating not having been committed, it seems to be impossible to deal with second accused under any section of the Penal Code."

" It is most difficult, if not impossible, to form any satisfactory and exhaustive definition which would lay down for all cases when preparation to commit an offence ends, and when an attempt to commit that offence begins. In short, the question whether any given act or series of acts amounts merely to preparation, or to an attempt which is punishable under section 490, appears to be one of fact in each case,"

THE facts are set out in the judgment.

H. J. C. Pereira, K.C. (with him R. L. Pereira), for accused, appellants.

Akbar, S,-G. (with him Dias, C.C., and Vythialingam, C.C.), for Crown, respondent.

June 8, 1928. Jayawardene J.-

This case raises a point of some nicety and difficulty. The two appellants have been convicted of attempting to cheat one Mr. Hermon, an offence punishable under sections 403 and 490 of the Penal Code. Their appeal is based on points of law, and the main, point argued on their behalf is that the acts of the accused were only acts of preparation, and that they had done no acts towards the commission of the offence of cheating within the meaning of section 490 of the Penal Code. The main facts are not in dispute, for in the District Court counsel for the accused accepted Mr. Hermon's evidence in its entirety. The first accused is a Sinhalese, and the second is a Natukottu Chetty. The first accused appears to be a resident of Alauwa in the Kurunegala District. Mr. Hermon is a planter in the Kegalla District. The first accused approached Mr. Hermon about the purchase of a coconut estate, which he said a Chetty, who wanted to leave the Island, wished to dispose of, and which could be bought cheap, as the Chetty was in a hurry to go away. The Chetty, he said, was worth lakhs of rupees, and was fond of gambling. In the course of his conversation, the first accused told Mr. Hermon that he could make a lot of money by playing a game of cards with the Chetty. Mr. Hermon asked him how it could be done, and the first accused demonstrated it with a pack of cards Mr. Hermon obtained for him. I need not describe the card trick at length. The betting was to be on the picture cards of an entire pack of 52 cards. By a certain manipulation of the cards as they are put back in the pack, after they had been dealt out, on the tenth deal and s