K R KUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE three accused persons in S. C. 22 of 1959 on the file of the Court of Session, Trichur, appeal against their conviction for offences of conspiracy to cheat, cheating, and forgery. Criminal Appeal 348 of 1959 is the appeal by the 1st accused, Criminal Appeal 339 of 1959 that by the 2nd accused and Criminal Appeal 344 of 1959 that by the 3rd accused.

(2.) THE 1st accused is a homoeopathic practitioner living in Trichur and running a dispensary at a place called Mannuthi about four miles from Trichur. The 2nd accused, it is said, was his compounder while the 3rd accused was an agent of the Lakshmi Insurance Company and later, after lite insurance was nationalised, of the Life Insurance Corporation doing business in the Trichur area. In 1956 there was a man by the name of Gopalan Nair but called Kochubala Menon and hereinafter referred to as Gopalan Nair who was living in the 1st accused's dispensary as his dependant and was generally assisting the 1st accused. This man was in failing health and was not expected to live long in fact he died on 20 -11 -1956. The case as found by the learned Sessions Judge is that in the middle of 1956 and thereafter the three accused conspired to cheat the Lakshmi Insurance Company and the Life Insurance Corporation by insuring this dying man as a first class life so that, on his death, they could get the sum assured by the policy without having had to pay much more than the first premium. The charge is of conspiracy to cheat the officers of the Lakshmi Insurance Company and of the Life Insurance Corporation. This, I think, is as it should be, for, to be cheated just as much as to cheat, involves the exercise of mental faculties - the victim has to be deceived and thus induced to act - of which only a natural person is -capable. Strictly speaking therefore an artificial person like a corporation cannot be cheated; it is always the human person through whom it functions that is cheated; and, if he also is a party to the fraud, the offence would be criminal breach or trust and not cheating. But, for the present purposes; it would be correct enough to describe the Lakshmi Insurance Company and the Life Insurance Corporation as the victims. In pursuance of this conspiracy a registered will - of which Ext. PI is a certified copy - was obtained from Gopalan Nair, who by this will left all his properties to the 1st accused. Six days later, on 22 -6 -1956, the proposal, Ext. P2, was got up for insuring the life of Gopalan Nair with the Lakshmi Insurance Company for a sum of Rs. 10,000/ -. This proposal, in the usual printed form, was filled in by the 2nd accused and the signature of the proposer, Gopalan Nair, was forged therein by the 1st accused, the signature being attested by the 2nd accused. The proposal was forwarded to the company through the agency of the 3rd accused who himself wrote down his name, address, and agent's number in Ext. P2 in the column provided for the purpose. On 27 -6 -1956, the 3rd accused as agent of the Lakshmi Insurance Company took the 1st accused to Dr. Raman Menon an authorised medical examiner of the company who has been examined as P. W. 18 at the Government hospital to which he was attached and introduced the 1st accused to him as the proposer, Gopalan Nair. The doctor examined the 1st accused as requested by the 3rd accused and prepared the medical report, Ext. P24, filling in the personal statement therein on the basis of answers furnished by the 1st accused. In this personal statement there is a declaration to be signed by the proposer and this was signed by the 1st accused as Gopalan Nair. The 1st accused signed also in the place intended for the specimen signature of the proposer, and both these signatures were affixed in the presence of P. W. 18. P. W. 18, as a result of his examination of the 1st accused, certified the proposer as a first class life and forwarded his medical report to the company which, in due course, issued the policy Ext. P61 in favour of Gopalan Nair, On 8 -12 -1956, eighteen days after the death of Gopalan Nair, the 1st accused sent the letter, Ext. P44, to the Lakshmi Insurance Company reporting the death of Gopalan Nair and claiming the sum due under the policy as the legatee as also the nominee of Gopalan Nair. This he followed up with, the letter, Ext. P45 dated 12 -12 -1956, giving fuller particulars and enclosing the policy and other documents as required by the insurers by their reply dated 13 -12 -1956 to his first letter. On 19 -1 -1956 life insurance was nationalised and on 1 -9 -1956 the newly formed Life Insurance Corporation took over the business of all the companies. The reply to Ext. P44 was by the Life Insurance Corporation and Ext. P45 was addressed to it. Being an early claim, the Life Insurance Corporation instituted enquiries, and the Delhi Special Police Establishment getting wind of the matter also commenced an investigation of their own. On 14 -3 -1957 the 1st accused sent the lawyer's notice Ext. P70 to the Life Insurance Corporation repeating his claim, but the claim was not paid,

(3.) ABOUT a week before 19 -11 -1958, fee accused went to Pw. 28, Civil Surgeon, Government Hospital, Alwaye, at the hospital and introduced him -self as an insurance agent and said that he would the bringing cases to Pw. 28 for examination. Pm. SB had been an authorised medical examiner for over 15 years of seven or eight insurance companies he continued to examine cases for the Life Insurance Corporation on an oral assurance by the Secretary of its Ernakulam Office that he examine cases upto Rs. 30,000/ - although he got the formal written authority only some time later. On 19 -11 -1956, the 2nd accused took the 'M accused to him at the hospital and introducing him. as Gopalan Nair, said that he was a business may who wanted to get his life insured for a swm of Rs. 30,000/ -. The 2nd accused had brought 2 blank medical report form, the personal statement in within he proceeded to fill up in Pw. 28's presence and the declaration appended to which the 1st accured signed as Gopalan Nair in Pw. 28's presence. Pw. 28 then examined the 1st accused and fill -ed up the lest of the form and signed it overflying the proposer as a first class life. The completed form, Ext. P23, Pw. 28 forwarded to the Life Insurance Corporation, Ernakulam, but Gopalan Nair having died the following day, somewhat permanently' for their purposes, the accused did not prosecute the matter any further. Pw. 25 who had sent the letter, Ext. P50. On 25 -11 -1956, to the Life Insurance Corporation, & Mr. kulam, informing them of the proposal flat Rs. 30,000/ - and had received the reply Ext f5Hi to the effect that although the medical report that reached the Corporation the proposal and the agents report had not come, asked the 1st and 2 once or twice when he met them as to happened, but neither of them would give proper reply.