1947 Present : Howard C.J.

DE ALWIS, Appellant, and SELVARATNAM, Inspector
Of police Respondent

454- M. C , Colombo, 48,955

Cheating - Ingredients which should be proved - Penal Code, ss e33400.

The appellant was charged under section 400 of the Penal Code with cheating a Proctor and Notary by falsely representing to him that certain premises described in the schedule to a mortgage bond attested by him were free from all encumbrances when, in fact, the said premises were subject to a mortgage.

There was no proof that damage or harm was caused to the Proctor in body, mind, reputation, or property.

Held, that to constitute the offence of cheating under section 400 of the Penal Code the damage of harm caused or likely to be caused to the person deceived must be the necessary consequence of the act done by reason of the deceit practiced or must be necessarily likely to follow there from. The possibilities of damage or harm to mind or reputation were too remote to be in the contemplation of the enactment.

APPEAL against a conviction from the Magistrate's Court , Colombo.

L. A Rajapakse, K.C. (with him E. D. Cosme and E. O. F . De Silva), for the 1st accuse, appellant.

E. H. T Gunasekara, Acting Solicitor- General ( with him J. G. T. Weeraratne, C.C.), for the Attorney-General.

Cur. adv. vult.

March 3,1947. HOWARD C.J.-

The accused was convicted of cheating, an offence punishable under section 400 of the Penal Code , and sentenced to six months' rigorous imprisonment," The exact wording of the charge was as follows:-

"You did at Hultsdorf Colombo, on 26th September 1941, being the first accused, deceive one R. Muttusamy, Proctor and Notary, by falsely representing to him that the premises described in the schedule to mortgage bond No.2123 dated 26th September , 1941 , attested by him , the said R. Muttusamy, as Notary , were free from all encumbrances whatsoever , whereas in truth and in fact, the said

premises were on the 26th September , 1941 , subject to a mortgage created by you in favour of one F. V. L. Drieberg of Borella, and fraudulently induce the said R. Muttusamy to attest the said deed No.2123 in his capacity as Notary Public which the said Notary would not have done had he not been so deceived and which act was likely to cause damage or harm to the said R. Muttusamy in body, mind , reputation or property and that the said 1st accused above named did commit an offence punishable under section 400 of Chapter 15 of the Penal Code."

It has been contended on behalf of the appellant that the representation alleged to have been made by the appellant to Muttusamy did not induce the latter to attest the deed and that Muttusamy would have attested the deed if it had not been for the representation of the appellant. It is also maintained that it has not been established that the act was likely to cause damage or harm to Muttusamy in body, mind, reputation or properly. In finding the appellant guilty of the offence the Magistrate states that it is idle to suggest that because Muttusamy has not in fact suffered any harm, or damage, the act of the appellant was not likely to cause damage to Muttusamy in mind ,reputation or property Counsel for the appellant contends that the possibilities contemplated by the Magistrate were too remote and the facts do not constitute at offence under the section. In this connection he had referred me to the Case of Mojey and others v. The queen-Empress 1[Indian Decisions, 17 Calcutta 606.]

The headnote of this case is as follows:-

"To constitute the offence of cheating under s.415 of the Indian Penal Code the damaged or harm caused or likely to be caused to the person deceived to mind, body reputation, or property must be the necessary consequence of the act done by reason of the deceit practiced, or must be necessarily likely to follow therefrom."

Where therefore, certain persons were charged under s.419 of the