# RAM JAS v. stATE OF U.P

- **Citation:** [1971] 2 S.C.R. 178
- **Court:** Supreme Court of India
- **Decided:** 1970-09-11
- **Bench:** V. Bhargava·, I .. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-jas-v-state-of-u-p-5310
- **Pages:** 6

## Headnote

C1:in1{naJ. ~Trial-Indian Penal Code,-1860, s. 419 read '.Vifh s. 109
High Court chariging conviction 1o one -0/ abetting cheating .by persona~
tion when no charge was framed and izlsq mgintaining fine and in default
2 years R.l. awarded by the trial court-Propriety of-lnducing Oath
C(ornrnisliont:r to attest affidavit •Of per.son lvrongly hlt·1uif.ed-If an1ounts
to offence of c:heafing:
The appellant· and.four othhs were charged under s. !70B I.P.C. and
ss. 420, 511, 467, 468 and 471 read with s. 120B •of r:t>:c.
TI1c trial
court convicted the . app.ell"1!,t and . awarded a cucpulatiye sentence of 3
years' risorous imprisonment and~iffi_pose,d a fine .aqd in default two years
rigorous inlprisonmenf. ln appeal tbe High Court was of the view that
the appellant bad· committed an .offel\Ce punishable under s. 419 read with
s. 109 J.P.C., even if the. other' charges, for which 'he had been convicted,
may mlt be .establis\_>ed.
On this view and relying on the power of th6
couft·to 'Convert his convicti6n to ~ppropriate sectior\.s of the Renal Codei
the High Court substituted'for'the conviction recorded by tlie Vial .co11rt -
a convictioa~un~cr s. 419 read \Vith s. 109 l.P.C. and reduced the sen·
tcnce to t\Vo years' rigorous im!.)risonn1ent, while maintijining the fine.
The Court did riot ex:::.mine the c,videnc.:: relating to the offences for
\vhich th.e a;;pellant had been coi'lvicted by the trial court and did' not
record 8.ny findings. on the facts which, according to the prosecut!on:
constituted the com'mission Of those . offences. The court found that the
appeUant h::d ~t lc:ist nhettcd th:e execu'ti.on of on~ false affidavit of G,
\vhich in fc:.ct ,\,.ns· ·signed by so1ne person other than G and that person
\\'as wrongly
i<l~ntified by the appellant before the Oath Commissioner.
and, as Suci1. the appellant \vas held ·g'uilty of abetting the offence of
cheating by pcrson3.tioD: conStit.utittg the offence nunishable Under s. 419
read vYith s. 1-09. l.P.C .. Settip.g aside the conviction,
BE'(.D.: The High Court .Jost sight of the fact that no charge unde'r
s. 419 read with S, 109 I.P.C. was framed against the. appellant in the
trial co1.1rt.. Jn addition the appellant, when questioned. under s. 342 of
th!! Code of Criminal Procedure;· after the prosecution evidepce had· been
recorded, was· no~ ai:;ked to exp.lain the evidence relatin2 to a chafge of
cheating the Oath Commissioner.
Though there was mention of comA
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n1isSion of forgery. of affidavits, mere mention of the commission of that
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offence could not poSllib!y. lead the appellant to infer that he 'Yas liable
to be convicted for abetting the offence
of cheating the Oath Commissioner. [180 H-18·] BJ
Further in the instant case the facts found did not constitute the
qffence of cheating at all.
The finding of fact recorded only showed
that the Oath Commissionc'r was induced to atrest the ilffidavit by the
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deception practised by the appellant in wrongly· identifyin~ ·a person.
HI
The act done by the Oath Commissioner of attesting the ilffidavit could
not, however, possibly cause any dathage or harm to the Oath Com·
missioner in body, mind, reputation or property. The Oath Commissioner
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RAM JAS v. U.P. STATE (Bhargava, I.)
179
was ob~iou•!Y n?t induced to deli':er any propctty to anybody by this
wrong 1dent1fication, nor was he mduced to consent that any penon
should retain any property. [182 A-CJ
In approving the sentence of two years' imprisonment in default of
payment of fine, the High Court, made an order which was clearly illegal
and in cont'ravention of s. 65 l.P.C. The High Court made no order with
regard to imprisonment in default; but, by upholding. the fine awarded
by the. trial court, the High Court impliedly affirmed the imprisonment
to be undergone in default of payment of fine.
In affirming this sentence
of imprisonment in default of payment of fine, the High Court failed to
notico that the sentence of imprisonment in default becam~ ille

## Text

RAM .. JAS
v.
stATE OF U.P.
September 11, 1970
[V. BHARGAVA·AND I .. D. DUA, •JJ.]
C1:in1{naJ. ~Trial-Indian Penal Code,-1860, s. 419 read '.Vifh s. 109
High Court chariging conviction 1o one -0/ abetting cheating .by persona~
tion when no charge was framed and izlsq mgintaining fine and in default
2 years R.l. awarded by the trial court-Propriety of-lnducing Oath
C(ornrnisliont:r to attest affidavit •Of per.son lvrongly hlt·1uif.ed-If an1ounts
to offence of c:heafing:
The appellant· and.four othhs were charged under s. !70B I.P.C. and
ss. 420, 511, 467, 468 and 471 read with s. 120B •of r:t>:c.
TI1c trial
court convicted the . app.ell"1!,t and . awarded a cucpulatiye sentence of 3
years' risorous imprisonment and~iffi_pose,d a fine .aqd in default two years
rigorous inlprisonmenf. ln appeal tbe High Court was of the view that
the appellant bad· committed an .offel\Ce punishable under s. 419 read with
s. 109 J.P.C., even if the. other' charges, for which 'he had been convicted,
may mlt be .establis\_>ed.
On this view and relying on the power of th6
couft·to 'Convert his convicti6n to ~ppropriate sectior\.s of the Renal Codei
the High Court substituted'for'the conviction recorded by tlie Vial .co11rt -
a convictioa~un~cr s. 419 read \Vith s. 109 l.P.C. and reduced the sen·
tcnce to t\Vo years' rigorous im!.)risonn1ent, while maintijining the fine.
The Court did riot ex:::.mine the c,videnc.:: relating to the offences for
\vhich th.e a;;pellant had been coi'lvicted by the trial court and did' not
record 8.ny findings. on the facts which, according to the prosecut!on:
constituted the com'mission Of those . offences. The court found that the
appeUant h::d ~t lc:ist nhettcd th:e execu'ti.on of on~ false affidavit of G,
\vhich in fc:.ct ,\,.ns· ·signed by so1ne person other than G and that person
\\'as wrongly
i<l~ntified by the appellant before the Oath Commissioner.
and, as Suci1. the appellant \vas held ·g'uilty of abetting the offence of
cheating by pcrson3.tioD: conStit.utittg the offence nunishable Under s. 419
read vYith s. 1-09. l.P.C .. Settip.g aside the conviction,
BE'(.D.: The High Court .Jost sight of the fact that no charge unde'r
s. 419 read with S, 109 I.P.C. was framed against the. appellant in the
trial co1.1rt.. Jn addition the appellant, when questioned. under s. 342 of
th!! Code of Criminal Procedure;· after the prosecution evidepce had· been
recorded, was· no~ ai:;ked to exp.lain the evidence relatin2 to a chafge of
cheating the Oath Commissioner.
Though there was mention of comA
c
F
n1isSion of forgery. of affidavits, mere mention of the commission of that
G
offence could not poSllib!y. lead the appellant to infer that he 'Yas liable
to be convicted for abetting the offence
of cheating the Oath Commissioner. [180 H-18·] BJ
Further in the instant case the facts found did not constitute the
qffence of cheating at all.
The finding of fact recorded only showed
that the Oath Commissionc'r was induced to atrest the ilffidavit by the
/
deception practised by the appellant in wrongly· identifyin~ ·a person.
HI
The act done by the Oath Commissioner of attesting the ilffidavit could
not, however, possibly cause any dathage or harm to the Oath Com·
missioner in body, mind, reputation or property. The Oath Commissioner
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RAM JAS v. U.P. STATE (Bhargava, I.)
179
was ob~iou•!Y n?t induced to deli':er any propctty to anybody by this
wrong 1dent1fication, nor was he mduced to consent that any penon
should retain any property. [182 A-CJ
In approving the sentence of two years' imprisonment in default of
payment of fine, the High Court, made an order which was clearly illegal
and in cont'ravention of s. 65 l.P.C. The High Court made no order with
regard to imprisonment in default; but, by upholding. the fine awarded
by the. trial court, the High Court impliedly affirmed the imprisonment
to be undergone in default of payment of fine.
In affirming this sentence
of imprisonment in default of payment of fine, the High Court failed to
notico that the sentence of imprisonment in default becam~ illegal .when
the conviction was altered to one unde'r s. 419 read with s. 109 I.P.C.
Under that section the maxin1um sentence ·of. imprisonment tha'n can
he awarded is three years. and. consequently,
under s. 65
l.P.C. the
maximum term of imprisonment in default of payment of fine· that could
he prescribed was nine months. being one-fourth of three years. [182 GJ
[The case was remitted to the High Court for rehearing in respect of
the offence for which the appellant was convicted by the trial court.]
CRIMINAL APPELLATE JURIS[)lCTION: C.nmina\ Appeal No.
J 13 or 1967.
Appeal by special leave from the judgment and order dated
December 14, 1966 of the Allahabad High Oiurt in Criminal
Appeal No. 1971 of 1964.
S. C. !lgruwal. R. K. Garg, S. Chakravarti, JI. I. Francis and
N. Nelter, for the appellant.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J.
The appellant, Ram .Jas, was tried along with
four others, Madan Lal. lnder Singh, Badri Nath, and Ram Nath,
no charges under section 120-B of the Indian Penal Code and sections 420.151 L 467, 468 and 471 read with section 120-B of the
Indian Penal Code.
He was convicted for offences uader these
sections and was awa1ded a cumulative sentence of three years'
rigorous imprisonm.~nt and a fine of 3,000/-, in default, two years'
rigorous imprisonment.
He went in appeal before the High Court
of Allahabad. The Hii;h Court came to the view that the appellant had at least committed an offence punishable under·section
419 read withs. 109, l.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. 419 read with
s. 109, l.P.C., for the convictiqn recorded by the trial coui:t, and
reduced his sentence to two vears' ri.l!orous imprisonment, while
mainiaining the fine of Rs. 3,000/-. The appellant has nOW come
180
SUPREME COURT REPORTS
[ l 97 l J2 S.C.R.
·up in appeal to this Court against this judgment of the High Court
by special leave.
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
o!"ences. It is not necessary to rcprodu·~c the ingredients of all
the offences with which the 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 s. 120-B, 1.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 ch1rge under s. 420 read with s. 120-B.
T.P.C., related to cheating two persons, Madan Lal and Chuni Lal.
by dishonestly inducing them to deliver certain sums of money so
as to get their debts adjusted against the cl~im of Govind Ram
who was a refugee from Pakistan; and the third charge under section 420/115 read with s. 120-B, l.P.C., was of attempting
to
cheat the office of the-Districl
Relief and
Rehabi!itation-cumSettlenient Officer, Saharanpur. by dishonestly inducing the office
to adjust the .debits of Madan Lal and Chuni 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 1hat conviction. The
High Court, on appeal, however, convicted the appellan! for the
offence punishable under section 419 read with s. 109. I.P.C., on
the finding that the appei1ant had at least abetted the execution of
one false affidavit of Govind Ram which, in faci, was signed by
some person 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 withs. 109. I.P.C.
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 v,e have indicated above. the persons.
who were cheated or attempted to be cheated, referred to in the
charges 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 atiempting to cheat the Oath Commissioner. In fact,
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llAM JAS v. U.P. STATB (Bhargava, /.)!
181
the case was never brought to 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 or
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 Comtnis:
sioner. Further, in recording this conviction, the High Court did
not even care to examine in detail whether all the ingredients of
the offence had be:m 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 Commissioner 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, l.P.C., which is as follows :-
"Whoever, by deceiving any persou, 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) !he person so deceived should be intentionally
mduced to do or omit to do anything 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
d:1mage or harm to the person induced in body.
mind, reputation or property.
·
182
SUPREME COURT REPORTS
[1971] 2 s.c.&.
Jn the present case, the finding of fact recorded only shows that
the Oath Commissioner was induced to attest 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 or 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, 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 neglecied
to see whether ail those ingredients were proved. On the face of
it, though the Oath Commissioner was induced to attest the affidavit by wrong id~ntification made by the appellant, there was no
likelihood of any damage or harm to him in body, mind, reputation or property, so thai the Oath Commissioner was never
cheated. Clearly, therefore, the High Cot!tt fell into an error in
recording the conviction of the appeliant for the offence under
section 419 read with section 109, I.P.C., and substituting that
conviction in place of the conviction for offences for which 'he
had been punished by the trial Court.
We may, in this connection, take note of another error committed by the High Court, though it is not material to the result of
this appeal.
The Higl\ Court upheld the sentence of fine of
Rs. 3,000/- awarded by th~ trial Court to the ·appellant. The
trial Court had directed that, in default of payment of fine, the
appellant was to undergo two ·years' rigorous. imprisonment. The
High Court made no order with regard to imprisonment in default;
but. by upholding the fine awarded by the iria,I Court, the High
Court impliedly also affirmed the imprisonment to be undergone
in default of payment of fine. In affirming this sentence of imprisonment in default of payment of fine, the High Court failed
to notic.~ that the sentence of imprisonment in default became
illegal when the conviction was altered io one under s. 419 read
withs. 109, I.P.C.
Under that section, the maximum sentence of
imprisonment that can be awarded is three years and, consequently, under section 65, I.P.C., the maximum term of imprisonment in default of payment of fine that could be prescribed was
nine months, being one-fourth of three years. In approving the
sentence of two years' imprisonment in default of paymeniof fine;
the High Court, thus, made an order which was clearly illegal and
in contrn.vention of s. 65, I.P.C. The trial Court had, of course,
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RAM JAS v. U.P. STATE (Bhargava, J.)
183
committed no error in awarding the sentence of two years' rigorous imprisonment in default of payment of , fine, because that
Court had recorded conviction for · five different offences, ea'ch
punishable with imprisonment for seven years, and the fine of
Rs. 3,000/- was a part of the cumulative sentence for commission
of those five offences.
We have only pointed out that this error
occurred, because th~ High Court adopted the extraordinary course
of convicting the appellant for an offence with which he had never
been charged, for which he had never been tried, and without
examining whether the ingredients of that offence were established
and what was the maximum punishment that could be awarded for
it.
Jn adopting this course, the High Court, as we have indicated
curlier, failed to record a clear finding whether th·: offences, for
whi~h the appellant .had been convicted by the trial Court, were
proved or not.
Jn these circumstances, the 11ppeal is allowed, the convictton
under section 419 read with s~ction I 09 of the Indian Penal Cnde
is set aside.
The case will now go back to the High Court for rehearing the appeal nnd giving a decision on the appeal in respect'
of the offences for which the appellant wns convicted by the trial
Court.
Y.P.
Appeal allowed.