NARAIN RAO Vs. REX

JUDGEMENT

(1.) This is a criminal revision. The applicant Narain Rao was convicted by a Magistrate of the First Class under Section 417 read with Section 511, Indian Penal Code, and sentenced to a fine of Rs. 200 and in default of the payment of the fine to six months rigorous imprisonment. His appeal was dismissed by the learned Sessions Judge of Benares and he has now come to the High Court in revision from the order of the learned Sessions Judge.

(2.) The findings of fact upon which the applicant's conviction is based are that he owed some money to the complainant Makund Lal who had obtained a decree against him for a sum of Rs. 78. The applicant was in Military service at Jubbulpore and the Military authorities there had agreed to the payment of the decree in monthly instalments of Rs. 10 each which were to be deducted from the applicant's pay. When the first instalment did not arrive, the complainant complained about it to the Military authorities at Jubbulpore, but before, he could receive a reply, on 26 September 1945, a postal cover was received from him insured for a sum of Rs. 70. His brother, Bhola Nath, took delivery of the insured cover and" signed the postal receipt for him in his absence from the shop. When the cover was opened, It was found to contain seven currency notes of rupee one each along with four blank sheets of paper. When the complainant returned to the shop in the evening and came to know of what had happened, he went and made a report el the incident at the police station at 6.45 P.M. and followed it up by a complaint in Court on 9 October 1945. It may also be mentioned that the evidence is that the applicant after the delivery of the insured cover to the complainant gave notice to him calling upon him to set off the sum of Rs. 70 alleged to have been sent by him under the insured cover against the total amount due from him under the decree.

(3.) A question of law has been raised on behalf of the applicant and it is said that on these findings he cannot be convicted of an offence of cheating or an attempt to cheat. Reliance is placed upon the case in Tularam V/s. Emperor 11 A.I.R. 1924 All. 205 in which Sulaiman J. in similar circumstances held that no offence under Section 417 read with Section 511, Indian Penal Code, had been committed.