1923. JAYAWARDENE J.

The King v.
Silva

cards had been handed to Mr. Hermon, or even before the game had commenced, an act had been done towards the commission of the offence of deceiving him and inducing him to deliver property? If the offence attempted to be committed had been to induce Mr. Hermon to lend money to the second accused, or to enter into any contract of a similar nature, the false representation that the second accused was a wealthy man-while he was in fact a pauper— would have had a direct tendency to deceive him, or would have amounted to the deception itself. As to the statement that Mr. Hermon could win a large sum of money from the second accused at a game of cards, I fail to see how this could be regarded as an act done in the attempt to deceive or cheat, although it was urged as an inducement to him to join in the game of cards. The act need not be the penultimate act, but I incline to the opinion that the act must be done in the attempt to commit an offence. As pointed out in the commentaries on the Penal Code, it is not always easy to say whether an act amounts to an attempt or is merely preparation, but I doubt very much whether the acts referred to in the indictment are acts done towards the commission of the offence of cheating in the very peculiar circumstances of this case. They appear to me to be acts done in planning and arranging for a deception or cheating, but not acts done towards the commission of the offence in the attempt to commit it.

66

The learned Solicitor-General relied strongly on the case of In the Matter of the Petition of MacCrea.1 That was also a case in which the accused was charged with attempting to cheat under section 511 of the Indian Penal Code which corresponds to section 490 of the Ceylon Code. There the accused attempted to obtain delivery of a Government promissory note as the property of one Asad Ali Khan, deceased. The deception the accused had to practise was to convince the person holding the note that the note was the property of Asad Ali Khan. The note was in fact not the property of Asad Ali Khan, but of one Muhamid Asad Ali Khan. With this object the accused did certain acts, and the acts done, as Blair J. said, were acts bearing and intended to bear upon the mind of another person. These acts having been done, that mind was left to operate. If, therefore, that which was done amounted to the commission of an act towards deceiving in a case where such deception would operate as an inducement to the person deceived to deliver any chattel or to do or omit to do any of the things mentioned in section 415 (396), then I think within the meaning of section 511 read together with illustration (a) an attempt to deceive, and thereby induce within the meaning of that section, has been proved in this case." There the deception was to bring about a certain conviction by operating on the mind of the person sought to be deceived, and the acts done by the accused were held to have

1
1 (1893) 15 Al. 173.

been done with that intention.

But here the deception was not to produce a certain impression on the mind and thus induce the delivery of property, but to practise a deception in the course of a game of cards. No doubt, for the purpose of inducing the person to join in the game of cards, certain false statements had to be made, but these statements formed no part of the deception itself, and did not tend directly towards the deception.

If, as I have said above, the object of the accused had been to induce Mr. Hermon to lend money to the second accused, then the false representation that the second accused was a wealthy Chetty would have been intended to operate on the mind of Mr. Hermon so as to lead him to do an act which he would not have done if the false representation had not been made, and there would have been an attempt to deceive him, and the false representation would have tended directly to induce the deception, and would thus amount to an act done towards the commission of the offence. But where the acts were done with a view to inducing Mr. Hermon to join in a game of cards, at which the deception was to be practised, I fail to see that the acts can be said to be done in the attempt to practise the deception. The deception sought to be practised in MacCrea's case is certainly different from the deception contemplated here, and the reasoning there can have no application to the present

case.

In the local case of The King v. Jeeris Appu,1 which is also a case of attempting to cheat, the facts are not given fully in the report, but according to the judgment the first accused proposed to the complainant, the shroff of the Kandy Kachcheri, that he should circulate counterfeit notes which he said the second accused could make. The complainant informed the police, and the accused were led on. The first accused brought the second accused to the complainant, and an exhibition of what was said to be the method was given. Finally, the accused proposed that the complainant should obtain 600 ten-rupee notes from the Kachcheri and bring them to the accused. The complainant agreed. The next morning the first accused again saw the shroff, and inquired whether the notes would be ready. Later the same day both accused went to the shroff, and a day was fixed, but before it arrived, the police arrested the accused. Ennis J. held that there were several acts of preparation, but the request for 600 notes passed from preparation to attempt. After that the offence would have been completed by delivery of the property. The learned Judge, in the course of his judgment, observed: "To prove the offence punishable under section 490 of the Penal Code, it is sufficient to show that an act has been done towards the commission of the offence in the attempt to commit it. In order to distinguish between an act of preparation before the attempt and an act towards the commission of the

1
1 (1918) 5 C. W. R. 271.

1923.

JAYAWAR

DENE J.

The King v.

Silva

1923. JAYAWAR. DENE J.

The King v.
Silva

offence in an attempt to commit it, the definition must be looked at.
Some offences consist of a single act (criminally intended), others
of a series of such acts. The offence of cheating come under the
latter category. Section 398 defines it
. . The offence
begins with inducement by deception. The act of deceitful induce-
ment forms part of the series of acts which would constitute the
offence, and an inducing by deceit to the end that the offence of
cheating may be committed is an attempt to cheat." There, too,
it will be seen that the deception consisted in bringing certain facts
to bear on the mind of the person sought to be deceived-nothing
else had to be done. The operation of these facts on the mind was
to result in his being induced to part with his property, and so the
request for the 600 notes was held to be an act in the attempt to
cheat. The shroff pretended to the accused that their statements
and exhibition had operated on his mind, and that he was con-
vinced that the accused were able to perform what they had suggested,
that is, that he had been deceived. The request for the money was
an attempt to obtain delivery of the property. It is to be noted
that the learned Judge did not hold that the statements of the
accused, that they could counterfeit notes, or that the exhibition
they gave, were acts done towards the commission of the offence.
He was inclined to regard them as merely preparatory acts. Perhaps,
it was not necessary to consider whether these acts amounted to
acts done towards the commission of the offence, as the accused
had gone a step further and actually asked for the delivery of the
property, that is, the money. I need not refer to the other cases.
But, as I find that the accused intended to cheat Mr. Hermon, the
question remains whether the first accused did not conspire with
the second to cheat Mr. Hermon. In many cases when more than one
person join in a conspiracy to commit an offence, and acts are done
in pursuance of such conspiracy, such acts although mere acts of
preparation which have not reached the stage of an attempt, the
conspirators have been found guilty of abetment. (See The King-
Emperor v. Padala Vandikatuswami1 and The King-Emperor v.
Ragunath. Now, under the Penal Code, section 100, a person is
said to abet the doing on a thing who, "secondly, engages in any
conspiracy for the doing of that thing," and explanation 2 to the
section says: "A conspiracy for the doing of a thing is when two or
more persons agree to do that thing or cause to procure that thing
to be done."

2

From the facts which I have set out above there is proof, both ample and clear, of a conspiracy between the two accused to cheat Mr. Hermon. The corresponding section of the Indian Penal Code, section 107, is different from our section, and requires that an act or legal omission should take place in pursuance of the conspiracy and in order to the doing of the thing. If such an act is required 2 (1889) Unreported Criminal Cases, Bom. 470.

1 1881 3 Mad. 4.

under our law, too, there is proof of several acts done in pursuance of the conspiracy and in order to carry out the object of the conspiracy. On the evidence in the case, therefore, I find that the first accused conspired with the second accused to cheat Mr. Hermon, and he is guilty of abetment of cheating under sections 109 and 403 of the Penal Code. The conviction of the first accused of abetting the second accused to cheat Mr. Hermon raises a difficulty with regard to the conviction of the second accused. The offence of cheating not having been committed, it seems to be impossible to deal with the second accused under any section of the Penal Code. In India this omission has been made good by the addition of certain sections included in chapter V. A of the Penal Code. These sections render all persons, principals and accessories, engaged in a conspiracy, guilty of an offence. These sections have not been added to our Penal Code. Therefore I am compelled to allow the appeal of the second accused. This, however, is not a matter for much regret, as the second accused is a pauper picked up by the first accused from the highway, and made to pose as a wealthy Chetty. The first accused is the principal offender, and, evidently the only person who stood to benefit by the cheating.

I alter the verdict, and find the first accused guilty of abetment of cheating under sections 109 and 403 of the Penal Code. The sentence of one year's rigorous imprisonment passed on him is confirmed. The second accused is acquitted.

I regret that absence on circuit has delayed the preparation of this judgment.

Varied.

1923.

Present: Schneider J.

FERNANDO v. FERNANDO.

74-C. R. Colombo, 83,340.

Jurisdiction-Courts of Requests—Inquiry under section 327, Civil
Procedure Code-Value of land over Rs. 300-Scope of inquiry.

The appellant made complaint by petition that the respondents had resisted the execution of a decree of the Court of Requests, directing that F be ejected from certain premises and the appellant be placed in possession. The respondents stated that they were in possession of the premises on their own account, and not under the judgment-debtor (F). The premises were over Rs. 300 in value.

Held, that the Court of Requests had no jurisdiction to investi. gate the claim under section 327 of the Civil Procedure Code.

Section 327 has not by its provisions vested Courts of Requests with a higher jurisdiction than that conferred on them by the Courts Ordinance.

It is not the question of ownership, but of possession which should be the subject-matter of the investigation under section 327. Actual or physical possession as well as constructive possession, such as a possession through a tenant, come within the scope of the inquiry; not only the fact of possession, but also the title of possession are within the scope of the sections.

THE facts are set out in the judgment.

Nagalingam, for appellant.

H. V. Perera, for respondents.

June 11, 1923. SCHNEIDER J.

A new and interesting point in the construction of section 327 of the Civil Procedure Code, and a point of importance in practice, is raised by this appeal. The appellant, as judgment-creditor, made complaint by petition that the respondents had resisted the execution of a decree of the Court of Requests of Colombo, directing that one William Fernando be ejected from certain premises and the appellant placed in possession. The respondents admitted the resistance complained of, and stated that they were in possession of the premises on their own account, and not under the judgment-debtor. The proceedings were regarded by both parties as if the complaint were numbered and registered as a plaint, though I am unable to find from the record that this was in fact done.