Zahira V. Cooray

 

1941     Present: Howard C.J.

 

ZAHIR v. COORAY.

 

690-M. C. Panadure, 8,382.

 

Cheating-Charge as set out discloses no offence-Proof of different manner of cheating-Conviction bad-Criminal Procedure Code, ss. 171 and 172.

 

Where in a charge of cheating, the manner of cheating set out in the charge did not in law constitute the offence, the charge would be insuffi­cient to sustain a conviction although a sufficient manner of cheating has been proved.

 

Welakka v. Deyonis Appuhamy (8 S. C. C. 56) followed.

 

APPEAL from a conviction by the Magistrate of Panadure.

 

G. P. J. Kurukulasuriya, for the accused, appellant.

M. M. I. Kariapper, for the complainant, respondent.

 

Cur. adv. vult

 

January 28, 1941. HOWARD C.J.-

 

In this case the appellant was convicted and sentenced to pay a fine of Rs. 200 in default three months' rigorous imprisonment for cheating in contravention of section 400 of the Penal Code. The charge was worded as follows : -

 

" Intentionally deceive A. A. M. Zahir, Manager, Razeena Stores, Panadure, by tendering in payment of sundry goods purchased by you during the month of April, 1940, cheque No. 0540 of the 15th May, 1940, drawn by you on the Bank of Ceylon, Colombo, for Rs. 130 and thereby induced the said A. A. M. Zahir to enter up payment of your April account in the said A. A. M. Zahir's books which cheque was dishonoured by the Bank on the 22nd May, 1940, as you had closed your account in the said Bank, and that you thereby committed an offence punishable under section 400 of Chapter 15 of Legislative Enactments."

 

The offence of cheating is defined in section 398 of the Penal Code. In order to establish such an offence it must be proved that the deceit induced the person deceived to do or omit to do something which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage to that person in body, mind, reputation or property. In this case it was alleged that the deceit of the appellant induced the complainant to enter up payment of the appellant's April account in his books. It was not established that such entering up of payment had caused or was likely to cause damage to the complainant.

 

The Magistrate in his judgment, realizing that the charge as framed did not disclose an offence, agreed with Counsel for the appellant that it was defective. He held, however, that an offence under the section of cheating" had been established inasmuch as the complainant in his evidence had stated that as the result of receiving the appellant's cheque he was induced to give further goods on credit, a thing that he would never have done but for this dishonest inducement. The Magistrate further

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