Cheating
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 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 (or any other person) in body,
mind reputation or property, is said to “Cheat”. Section 415.
Intention
In
order to constitute cheating it must be established that some one is made to
part with some property on the promise of another to return something in lieu
thereof which the latter had no intention to give. The initial intention to
deceive, therefore must be established in order to justify conviction for
cheating. Where there was a reasonable possibility that accused may be acting
without dishonest intention there can be no conviction under this segment. In
aim to trick can be assembled from surrounding circumstances.
Deceit
Dishonest
concealment of facts is a deception within meaning of Section 415. The
essence of a charge of cheating is that the complainant should have been
deceived. The acts of deceiving and thereby dishonestly or fraudulently
inducing the person deceived are acts which must precede the delivery of any
property.
Fraudulent
or dishonest inducement
Whenever
the words “fraud” or “with intent to defraud” or “fraudulently” occur in the meaning
of a crime, two components at any rate are key to the commission of the crime,
- Deceit or an intention to deceive or , in some cases mere secrecy and
- Either actual injury or possible injury or an intention to expose some person either to actual injury or risk of possible injury by means of that deceit or secrecy. The term “fraudulently” may be defined to imply an intent to deceive in such a manner as to expose any person to loss, or risk of loss. The term “dishonestly” implies a deliberate intention to cause wrongful gain or wrongful loss.
Inducement
by acts and conduct
To
constitute an offense of tricking misleading may be by conduct or implied in
the nature of the transaction itself.
Punishment
for cheating
Whoever
cheats shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both. Section 471.
Cheating
and dishonestly inducing delivery of property
Whoever
cheats and thereby dishonestly induces the person deceived to deliver any
property to any individual, or to make, modify or crush the entire or any part
of a valuable security, or a anything which is marked or fixed, and which is
equipped for being changed over into a valuable security, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
Essentials
The
ingredients of an offence under Section 420 are that the person deceived
delivered to someone a valuable security or property, that the person to
deceived was actuated to do along these lines, that such individual followed up
on such prompting in consequence of his having been deceived by the accused,
and that the accused acted fraudulently or dishonestly when so inducing that
person. In other words the representation on the basis of which a person
transferring property was induced to transfer his property must be false.
The
person can be said to have done a thing dishonestly if the does so with the
intention of causing wrongful gain to one person or wrongful loss to someone
else. Wrongful increase to an individual means an addition to him by unlawful
means of property to which the person gaining is not legally entitled. There
are the two facets of the definition of dishonestly and it is enough to
establish the existence of one of them. The law does not oblige that both ought
to be established.
Intention
For
a conviction under Section 420 criminal intent at the time of the offence must
be established. Onus to establish means rea is on prosecution.
The
test in cases of cheating is not what the accused did months a short time
later, however what was in his psyche when he received the money, and the
circumstances in which he did so and whether the accused then indented to pay
what he promised to pay. Therefore a complaint under this section should show
that intention of the accused was fraudulent from the very beginning.
For
the purpose of cheating, dishonest intention at the time of performing an act
or promise is to be inferred and not from subsequent non-fulfillment of the
promise. Where dishonest intention at the time of the transaction was not
clear, consequent behavior of the charged can't make the transaction amount to
cheating.
Fraud
and Misrepresentation
Question
of criminality depends on intention of accused and the would be guilty of
offence of fraud or misappropriation if he commits an act with intention to
commit fraud or misappropriation. Where fraud is alleged, it is absolutely
essential that there should be clear evidence of intention to defraud or to
cheat before the opposite party may be allowed to be harassed with a criminal
prosecution, because in absence of proof of means rea, no presumption can be
drawn against accused and conviction recorded against him would not be
sustainable. The misrepresentation intention is make a cheating so
misrepresentation is a guilty of an offence under Section 420.
Concealment
of facts
Every
concealment of fact is not fraudulent. It becomes fraudulent only when it is
dishonest and when it causes damage or loss to the other party. In a particular
case the silence of the accused may be rendered into dishonest concealment by
circumstances of the case and it may amount to deception within the section.
Property
The
word “to deliver any property” imply that the word ‘property’ means movable
property. The fact that a thing is of on money value to the person who acquires
it by cheating. Thus an import licence is property because though it is of on
value in the hands of the licensing Authority yet it has great value in the
hands of the licensee who acquires it by cheating.
Valuable
security
A
valuable security is a document which entitles a person or which evidences the
title of a person to any property or valuable right. Therefore an import
licence obtained from the officer of the Chief Controller of imports is a
valuable security because it is evidence of title of the person possessing it
to import foreign goods into Pakistan. But a “decree”, or receipt for goods
delivered obtained by handing over a post-dated check, or the acknowledgement
receipt of a protection parcel is not valuable security.
Cheating
by agent
With
regard to the offence punishable under section 420, P.P.C. the general
principle would apply namely, that no criminal liability would attach to the
principle for any act or omission of his agent unless the principle himself participates
in, or approves or schemes at such act or omission.
