SERGEANT A R MILTON Vs. MRAND MRSSHERMAN

JUDGEMENT

(1.) In this case a Rule was issued at the instance of Sergeant R. Milton calling upon the Chief Presidency Magistrate to show cause why the conviction of and the sentence passed on the petitioner should not be set aside on grounds 1 and 2 mentioned in the petition. The grounds referred to are (1) that upon the facts of this case no offence under Section 417, Indian Penal Code, has been made out against the petitioner, and (2) that the learned Magistrate s judgment is vitiated by the admission of evidence subsequent to the alleged cheating, and the said evidence has materially influenced the learned Magistrate s decision.

(2.) Now, this is a case out of the ordinary; and, the facts may be shortly stated.

(3.) It appears that before the 23rd of March of this year the petitioner had become engaged to a girl called Mildred Dorothy Sherman, the daughter of Mr. P.J. Sherman, who lived at 10 Sadder Street. Apparently, either on the 23rd of March or shortly before the 23rd of March, according to the case for the prosecution, the petitioner proposed to the girl s father for the hand of his daughter, and thereupon Mr. Sherman asked the petitioner if he was unmarried, and the petitioner is alleged to have assured him that he was bachelor. The learned Magistrate has found in favour of the prosecution story in that respect, and has held that that question was asked by Mr. Sherman and that the petitioner replied by saying that he was unmarried. The petitioner s case was that he did not say what Mr. Sherman swore that he had assured him. To my mind that is quite immaterial, because it is clear that the petitioner was asking the father s leave to be engaged to his daughter and if he did not specifically say that he was unmarried, he impliedly represented that he was an unmarried man. The very fact of his asking the father to be allowed to be engaged to his daughter involved an implied representation that he, the petitioner, was unmarried. The father gave his consent to the proposal, and the petitioner was admitted to the father s house and was accepted as his future son-in-law until on or about the 24th of April, when certain information was brought to the father, in consequence of which the father charged the petitioner by a letter with being a married man having a wife and two children in England. Upon such charge being made the petitioner admitted the fact, and, as I understand, wrote two letters, one to the father and one to the girl, admitting that he had been wrong, but asserting his devotion to the girl, saying that he had never really cared for his wife and that he was under the impression that she was suffering from an incurable disease and it would not be long before she would depart this life. It appears that in one of his letters he went so far as to say that he was prepared to take a beating from the father if he wished to give him one. These two letters were delivered, as I understand, on the morning of the 25th of April. On the 26th, so we are informed, there was a dispute at Mr. Sherman s house between the parents and the son on the one hand and the girl on the other. We are told by Mr. Norton that the effect of it was that the girl was told that either she must give up the petitioner altogether or she must leave the house. The result was that on the 27th the girl of her own accord did leave the house and she went to the petitioner. That night she slept at the house of a certain Mrs. Leighton and in the room of Mrs. Leighton, and, on the following morning, the 28th, at Mrs. Leighton s request she left Mrs. Leighton s house: it is said that on the previous day a room had been engaged in some house at Dhurumtollah, but the girl had to leave it in consequence of the intervention of her mother, and the result was that on the 28th a room at the Trocadero Hotel was engaged which contained two beds in which the petitioner and the girl are alleged to have spent the night.