D.P.DESAI, J.M.SHETH - (1.) Criminal Appeal No. 522 of 1967 has been filed by the appellant who was original accused No. 1 in a Sessions Case No. 31 of 1967 in the Sessions Court of Kaira at Nadiad. He has been convicted of an offence punishable under sec. 420 of the Indian Penal Code and sentenced to suffer four years rigorous imprisonment and to pay a fine of Rs. 5 0 and in default of payment of fine to undergo one years further rigorous imprisonment. He is also convicted of an offence punishable under sec. 420 read with sec. 511 of the Indian Penal Code and sentenced to suffer one years rigorous imprisonment. Substantive sentences are ordered to run concurrently. This order of sentences and convictions has been passed against him by the learned Additional Sessions Judge Nadiad Mr. J. B. Desai. He was charged with other offences. He has been acquitted of those offences. The State has not filed any appeal against that order of acquittal against this appellant.
(2.) The prosecution case is briefly stated as under:- Accused No. 1 has got a bungalow at Adarsh Nagar in Jullundhar City Punjab State. In some of the back-rooms of that bungalow he had housed the office run in the name and style of Indian Homeopathic College Jullundhar City. He was the sole proprietor of that business run by him. He was giving advertisements in various news-papers throughout India and particularly in the areas of Gujarat State in the newspapers Sandesh and Jansatta. Those advertisements were given through his advertising agency International Publicity. Those advertisements were given in the name of Indian Homeopathic College Jullundhar. It appears that he was giving such advertisements from the years 1959 to 1965. The advertisement published by him in Jansatta of 1st January 1965 EX. 91 was to the following effect:- DOCTOR BANO GHER BETHA TAPAL MARFAT VANCHINE SARKAR DWARA REGISTERED COLLEGEMATHI HOMEOPATHICNI TRAN SARVOCH DEGREEO M.D.H. M.Sc (Homeo) GOLD MEDALIST PRAPT KARO ANE KIRTI TATHA DHAN KAMAO. MAFAT VIVARAN MATE LAKHO:- INDIAN HOMEOPATHIC COLLEGE (J.S.A.) P. B. 89 Jullundhar City. The English rendering of it would be:- Become a Doctor. Obtain the top-most degrees M.D.H. M.Sc. (Homeo) Gold Medallist by taking tuitions by post and reading at home from a college registered by the Government and earn fame (reputation) and earn money. Write for a free prospectus Indian Homeopathic College (J.S.A.) P. B. 89 Jullundhur City. On reading such advertisements according to the prosecution the readers sent for the prospectus which is referred to as Niyamavali Ex. 33 equivalent to Exs. 48 and 64. The readers received such Niyamavali received application forms and money-order forms and relying on the representations made therein to be true they sent different amounts of money. They on reading the advertisements and the Niyamavali believed that they were to get Diplomas of a college registered by the Government of India and on receipt of these Diplomas they would be entitled to practice anywhere as represented therein. They also felt that the representation made to them was that the institution was a real institution and not a bogus institution and the institution was registered by the Government of India indicating that it was an authorised institution or an institution approved by the Government of India or recognised by the Government of India. They parted with their moneys relying on those representations and believing them to be true. They got Diplomas. They moved the registering authority in the State of Gujarat and to their surprise they found that no such institution was recognised and eventually they could not be registered as medical practitioners taking into account the provisions of the relevant Homeopathic Act prevalent in the State. It is the prosecution case that one of the prosecution witnesses Natvarlal who is alleged to be cheated talked to his friend Punambhai who felt that this was a bogus institution and the institution was cheating the people. He thereupon wrote an article Hant Tarang Ex. 232 in Jansatta so that other people at large may not be deceived and cheated. One Satishchandra realising that people were being cheated and an attempt was made to cheat him by accused No. 1 sent the relevant documents received by him from accused No. 1 with his letter to D.I.G. (C.I.D.) Gujarat to make the necessary inquiry and to take action against such cheats. The inquiry was first entrusted to P.S.I. P. D. Patel who made some inquiry and the inquiry was subsequently entrusted to C.I.D. Inspector Upadhyaya. After making the necessary enquiry a complaint Ex. 306 was lodged on 6th July 1965 He made the investigation. He arrested accused No. 1 and had made a search in the aforesaid office rooms etc. of accused No. 1 on different dates commencing from 16th July 1965 to 21st July 1965 and attached several articles under different panchnamas. After the completion of the investigation both the accused were charge-sheeted to the Court of the Judicial Magistrate First Class at Nadiad. The Committing Magistrate after making a preliminary inquiry sent both the accused to the Court of Sessions to stand their trial for the offences referred to above.
(3.) The learned Advocate Mr. B. K. Amin appearing on behalf of accused No. 1 made the following broad submissions:- (1) No offence is committed as there is no wrongful loss or gain caused to anybody. (2) There is no false representation. There is no mis-representation (3) Reading the charge fairly the charge against accused No. 1 was that the cheating was done by this accused by giving forged diplomas instead of genuine diplomas. There was no specific charge against him that certain false representations were made namely regarding the registration or recognition of this college and holding out that persons getting diplomas or degrees from such college will be entitled to practice meaning thereby that right will be conferred on them to practice irrespective of any laws prevailing in different States prohibiting them from practising without themselves being registered as registered medical practioners and which could be done only if they had obtained degrees or diplomas of the recognised institutions under that Act. (4) Accused No. 1 having been acquitted of the offences of forging such diplomas and using the forged diplomas as genuine diplomas the consequence was that he ought to have been acquitted of the offence punishable under sec. 420 of the Indian Penal Code also. (5) At the most it could be said that there was a breach of contract on the part of accused No. 1 and if it was so there could have been a civil liability of accused No. 1 and there could not any criminal liability. (6) At the most even if his other contentions are not accepted it could be said that offence committed by accused No. 1 was a simple offence of cheating punishable under sec. 417 of the Indian Penal Code and he could not have been convicted of an offence punishable under sec. 420 of the Indian Penal Code. (7) In case the Court found that conviction of accused No. 1 was proper sentence awarded was absolutely out of proportion and was very harsh. ... ... ... ... ... ... [His Lordship after discussing the facts and points of law held that it was not correct to say that as accused No. 1 had been acquitted of the offences under secs. 468 471 or 475 I. P. C. the necessary consequence would be that he should be acquitted of offence under sec. 420 I. P. C. His Lordship further observed.] ;