Abeyewardene V. Muttunayagam

1945 Present: Jayetileke J.

ABEYEWARDENE (P. S. 2666), Appellant, and
MUTTUNAYAGAM, Respondent.

1,539-M. C. Colombo, 48,854.

Attempt-Charge of attempt to cheat-Awareness of complainant that he would be cheated by accused-Quilt of accused-Penal Code, ss. 403, 490.

A person may be guilty of an attempt to cheat although the person he attempted to cheat was aware of the true facts and was, therefore, not cheated.

APPEAL against an order of acquittal made by the Magistrate of Colombo.

V. T. Thamotheram, C.C., for the complainant, appellant.

No appearance for the accused, respondent.

Cur. adv. vult.

December 19, 1945. JAYETILEKE J.-

The accused, who is a clerk employed in the Tyre Controller's Office, was charged under section 403/490 of the Penal Code with having attempted to cheat one Perera. The evidence shows that on November 6, 1944, he represented to Perera that his motor car had been placed in category C and that he could get it transferred to category Bl if he was paid Rs. 50. After some discussion the accused agreed to accept Rs. 25. Later Perera learnt from another clerk that the representation made by the accused that his car was placed in category C was false, and he reported the matter to the Tyre Controller. The latter got the Police to take action and a trap was laid for the accused. On November 8, 1944, Perera produced before Police Sergeant Abeyewardene two ten rupee notes bearing Nos. J/5 474008 and J/6 726599 and a five rupee note bearing No. F/4 66428 and informed him that he intended to give

them to the accused in payment of the amount he demanded. Police Sergeant Abeyewardene noted the numbers on a piece of paper and requested Perera to give them to the accused. Perera handed the notes to the accused on the pavement outside the office, and the accused gave him a piece of paper on which he had noted the category assigned to the car. Perera and the accused went back 'to the office and a little later Police Sergeant Abeyewardene came on the scene and wanted to search the accused. Thereupon the accused dropped the money he had in his hand. Police Sergeant Abeyewardene picked up the notes and found that they corresponded with the notes which Perera had produced before him. On further search Police Sergeant Abeyewardene found in the note book of the accused an entry which had the number of Perera's car. The accused did not give evidence on his own behalf. The Magistrate held that, as Perera knew at the time he handed the money to the accused that the representation which the accused had made to him was false, the charge of attempt to cheat could not be maintained and acquitted the accused. This appeal is taken against that order with the sanction of the Attorney-General.

Mr. Thamotheram submitted to me three decisions which show that the order of the Magistrate is wrong. In Regina v. Hensler [1 11 Cox's Reports of Cases (1867-71) 570. ] the accused was indicted for attempting to obtain money by false pretences in a begging letter. In reply to the letter the prosecutor sent the accused five shillings. But he stated in his evidence at the trial that he knew that the statements contained in the letter were untrue. Kelly C. B. said-

" This is an attempt by the prisoner to obtain money by false pretences which might have been so obtained. The money was not so obtained because the prosecutor remembered something which had been told him previously. In my opinion, as soon as ever the letter was put into the post the offence was committed."

In Rex v. Light [2 24 Cox's Reports of Cases (1913-15) 718.] Rowlatt J. said-

"It is quite clear that on the charge of obtaining goods or money by false pretences, no conviction is possible unless it is shown that the mind of the prosecutor was misled by the false pretence, and that he was thereby induced to part with his money or goods. But it is a fallacy to suppose that the same principle appl

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