Bhargava, J. - (1.) The appellant, Ram Jas, was tried along with four others. Madan Lal, Inder Singh, Badri Nath and Ram Nath, on charges under Section 120-B of the Indian Penal Code and Sections 420/511, 467, 468 and 471 read with Section 120-B of the Indian Penal Code. He was convicted for offences under these sections and was awarded a cumulative sentence of three years' rigorous imprisonment and a fine of Rs.3,000/- in default, two years' rigorous imprisonment. He went in appeal before the High Court of Allahabad. The High Court came to the view that the appellant and at least committed an offence punishable under section 419 read with S.109, I.P.C., even if the other charges, for which he had been convicted, may not be established. On this view, and relying on the power of the Court to convert his conviction to appropriate sections of the Indian Penal Code, the High Court substituted the conviction of the appellant under S.491 read with S.109, I.P.C. for conviction recorded by the trial Court, and reduced his sentence to two years' rigorous imprisonment, while maintaining the fine of Rupees 3,000/-. The appellant has now come up in appeal to this Court against this judgment of the High Court by special leave.
(2.) Before dealing with the correctness of the conviction recorded by the High Court, we may take notice of the fact that the High Court, in its judgment, did not examine the evidence relating to the offences for which the appellant had been convicted by the trial Court and has not recorded any findings on the facts which, according to the prosecution, constituted the commission of those offences. It is not necessary to reproduce the ingredients of all the offences with which appellant was charged. It is sufficient to mention three charges which are relevant to the question whether the conviction recorded by the High Court is justified. One of the charges was under S.468 read with Section 120-B, I.P.C., in respect of forgery of three affidavits of Govind Ram, two dated 7th February, 1959, and one dated 16th February, 1959, committed with the intention of using the affidavits for the purpose of cheating. The second charge under S.420 read with S.120-B, I.P.C., related to cheating two persons, Madal Lal and Chunni Lal, by dishonestly inducing them to deliver certain sums of money so as to get their debts adjusted against the claim of Govind Ram who was refuge from Pakistan; and the third charge under Section 420/115 read with S.120-B, I.P.C., was of attempting to cheat the office of the District Relief and Rehabilitation-cum-Settlement Officer, Saharanpur, by dishonestly inducing the office to adjust the debits of Madan Lal and Chunni Lal against the claim of Govind Ram and of using the forged affidavits in that connection. The trial Court convicted the appellant for all these charges, and the appeal in the High Court was against that conviction. The High Court, on appeal, however, convicted the appellant for the offence punishable under Section 419 read with Section 109, I.P.C., on the finding that the appellant had at least abetted the execution of one false affidavit of Govind Ram which, in fact, was signed by some persons other than Govind Ram and that person was wrongly identified by the appellant before the Oath Commissioner and, as such, the appellant was held guilty of abetting the offence of cheating by personation constituting the offence punishable under Section 419 read with Section 109, I.P.C.
(3.) In recording this finding and conviction, the High Court lost sight of the fact that no such charge was framed against the appellant in the trial Court. As we have indicated above, the persons, who were cheated or attempted to be cheated, referred to in the charge framed against the appellant, were Madan Lal, Chunni Lal, or the office of the Relief and Rehabilitation-cum-Settlement Officer, Saharanpur. There was no charge at all relating to any cheating or attempting to cheat the Oath Commissioner. In fact, the case was never brought to the Court with the intention of obtaining conviction of the Appellant for any offence of cheating in respect of the Oath Commissioner. Not only was there no charge in this respect, but, in addition, the appellant when questioned under Section 342 of the Code of Criminal Procedure after the prosecution evidence had been recorded, was not asked to explain evidence relating to such a charge of cheating the Oath Commissioner. No doubt, there was mention of commission of forgery of affidavits; but the mention of the commission of that offence could not possibly lead the appellant to infer that he was liable to be convicted for abetting the offence of cheating the Oath Commissioner. Further, in recording this conviction, the High Court did not even care to examine in detail whether all the ingredients of the offence had been established by the prosecution evidence. The only finding of fact was that the appellant who was known to the Oath Commissioner, wrongly identified some other person as Govind Ram and got the affidavit attested by the Oath Commissioenr as if it was being sworn by Govind Ram. This act of wrong identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in Section 415, I.P.C., which is as follows:- "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything 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 or harm to that person in body, mind, reputation or property, is said to "cheat"." The ingredients required to constitute the offence of cheating are: (i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or omit to do any thing which he would not do or omit if he were not so deceived; and (iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. In the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to atleast the affidavit by the deception practised by the appellant in wrongly identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation of property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under Section 419, substantively or with the aid of Section 109, substantively or with the aid of Section 109, I.P.C., could only have been justified if the facts proved constituted all the ingredients of the offence of cheating. In recording the conviction, the High Court neglected to see whether all these ingredients were proved. On the face of it, though the Oath Commissioner was induced to attest the affidavit by wrong identification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputation or property, so that the Oath Commissioner was never cheated. Clearly, therefore, the High Court fell into an error in recording the conviction of the appellant for the offence under Section 419 read with Section 109, I.P.C., and substituting that conviction for offences for which he had been punished by the trial Court.;