THAKUR MANDAL Vs. EMPEROR

JUDGEMENT

(1.) This is a petition on behalf of one Thakur Mandal who was convicted by a First Class Magistrate under Secs.419-109, Indian Penal Code, and sentenced to one year's rigorous imprisonment. He was tried along with one Borhan Mandal who was convicted under Section 419, Indian Penal Code, and sentenced to one year's rigorous imprisonment. The case for the prosecution is that one Masudan Bind was an employee in the Jamalpur Workshop. His services terminated on 1 April 1938 on account of reduction in the establishment. Masudan Bind was granted a certificate of discharge on 3 April 1938, which is Ex. 13 in the case. This discharge certificate was given by Masudan Bind to the petitioner Thakur Mandal some time in September 1939 as Thakur Mandal has promised to get him re-employed in the workshop. After waiting for about ten months, during which period nothing was done for him, Masudan Bind demanded the certificate back from Thakur Mandal. When Masudan Bind threatened that he would file a petition before the manager, Thakur Mandal said that he should not file such a petition as the certificate of Masudan Bind had been used by Borhan ! Mandal who had been appointed on the strength of the certificate. Thakur Mandal further told Masudan Bind that he would get him appointed on another man's certificate. Masudan then sent two petitions to the D.C.M.E. of the Jamalpur Workshop. No action seems to have been taken on these petitions, but when a third petition was sent by registered post, the D.C.M.E. sent it to the police for investigation. As a result of the investigation the two accused were put on trial and convicted. On appeal the convictions and sentences were affirmed. Thakur Mandal's defence was that he had never used Masudan Bind's certificate and that the whole case against him was false. The defence of the other accused was, whose petition is not before us, that he had two names one of which happened to be Masudan Bind and he had succeeded in getting his appointment in the workshop on his own account and not on the strength of any man's discharge certificate. The charge framed against Borhan Mandal was as follows: That you on or about 24 November 1939 at Jamalpur, pretending to be Masudan cheated Mr. G.W. Browne, D.C.M.E Jamalpur Workshop E. I. Ry. by such personation and thereby committed an offence punishable under Section 419, Indian Penal Code, and within my cognizance.

(2.) The charge against the petitioner Thakur Mandal was as follows: That you on or about 24 November 1940, at Jamalpur abetted the commission of the offence of cheating by personation by Borhan Mandal who pretended to be, Masudan, and thereby cheated Mr. G.W. Browne, D.C.M.E., Jamalpur workshop E. I. Ry. by personation, which was committed in consequence of your abetment and thereby committed an offence punishable under Section 419-109, Indian Penal Code....

(3.) The year mentioned in the charge against Thakur is 1940 but evidently it is a mistake. The lower appellate Court has come to the following findings: (1) that Borhan Mandal "obtained his appointment in the workshop on the basis of that certificate and personating himself as Masudan Bind"; (2) that Thakur Mandal had taken the certificate from Masudan; and (3) that Mr. G.W. Browne, D.C.M.E. of Jamalpur Workshop would not have made the appointment had he known of the false personation. The question that arises for consideration in this case is whether it has been established that Borhan Mandal was guilty under Section 419 and Thakur Mandal under Section 419-109, Indian Penal Code. On the findings arrived at on the evidence of the officers of the Jamalpur workshop it is clear that the discharge certificate with a superimposed thumb mark was produced by the office where it was found; the certificate would not have been there if Borhan Mandal had not produced it, and Borhan Mandal could not have produced it if he had not received this discharge certificate from Thakur Mandal. Prom the evidence of Masudan Bind himself, who was personated, and the other witnesses who came in support of this story there is no doubt that the discharge certificate was handed over to Thakur Mandal. The next question that arises is whether when Borhan Mandal handed over the discharge certificate at the time of his appointment, he was guilty of the offence under Section 419. Section 419 runs as follows: Whoever cheats by personation shall be punished with imprisonment of either description (or a term which may extend to three years, or with fine or with both, and cheating has been defined in Section 415 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.