PETITIONER: KANUMUKKALA KRISHNA MURTHY Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT: 23/03/1964 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. GUPTA, K.C. DAS CITATION: 1965 AIR 333 1964 SCR (7) 410 ACT: Indian Penal Code, 1860 (Act 45 of 1860), ss. 415, 419--Cheating-Public Service Commission, false representations to-If deception of Government. HEADNOTE: The appellant applied for a post advertised by the Madras Public Service Commission, making certain representations in his application which were found to be false. He was convicted under s. 419 Indian Penal Code for having cheated the commission. This conviction was confirmed by the Sessions Judge and the revision was dismissed by the High Court. Held: (i) Cheating can be committed in either of the two ways described in s. 415 Indian Penal Code. 'Deceiving a person' is common in both the ways of cheating. (ii) The appellant's misrepresentation to the Service Com- mission continued and persisted till the final stage of the Government itself was deceived by the misrepresentation made in the application presented to the Service Commission. The Service Commission is a statutory adviser to the Government in the matter of appointment to the Service. Deception of such an adviser is deception of the Government which is expected to pay heed to its advice and act accordingly. State of U.P. v. Manbodhan Lal Srivastava [1958] S.C.R. 533, The Crown v. Gunput, 1868 Punj. Rec. Crl. Case No. 6, P. E. Billinqhurst v. H. P. Blackburn, 27 C.W.N. 821, Legal Remembrancer v. Manmatha Bhusan Chatterjee, & Legal Remem- brancer v. Hridoy Narian I.L.R. 51 Cal. 250, Emperor v. Fazal Din (1906) 4 Cr. L.J. 355, Queen Empress v. Appasami, I.L.R. Mad. 151. Ashwani Kumar Gupta v. Empreror. I.L..R. 1937 (1) Cal. 71 and In re: Hampshire Land Company, [1896] (2) Ch. 743. referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134 of
1962. Appeal by special leave from the judgment and order
dated July 17, 1962 of the Andhra Pradesh High Court in
Criminal Revision Case No. 298 of 1961.
A. S. R. Chari, G. D. Gupta, S. Balakrishnan, R. K. Garg,
S. C. Agarwala, D. P. Singh and M. K. Ramamurthi, for the
appellant.
S. G. Patwardhan and B. R. G. K. Achar, for the respon-
dent.
March 23, 1964. The Judgment of the Court was delivered by
J. RAGHUBAR DAYAL, J.-The facts leading to this appeal, by
special leave, are these:
The Madras Public Service Commission, hereinafter referred
to as the Service Commission, by its notification published
411
in the Fort St. George Gazette dated August 3, 1948, invited
applications for appointment of Assistant Surgeons in the
Madras Medical Service (Men’s Section), from persons who had
rendered temporary service as Assistant Surgeons in that
Service at any time between September 3, 1939 and December
31, 1947 and from persons who had rendered War Service and
possessed the qualifications mentioned in paragraph 3 of the
notification. Paragraph 3 of the notification, inter alia,
reads:
“Applicants must satisfy the Commission–
(a) that they are registered practitioners
within the meaning of the Madras Medical
Registration Act, 1914;
(b) that they possess the L.M.S. degree or
the M.B., B.S., degree of a University in the
Province or an equivalent qualification.”
The appellant, who was at the time serving as a Civil
Assistant Surgeon in the Madras Medical Service on a tempo-
rary basis, applied for the permanent appointment to the
posts -notified by the Public Service Commission. In this
application ‘he made the following representations, which
have been found ;to be false, by the Courts below:
(i) that his name was Kaza Krishnamurthy;
(ii) that his place of birth was Bezwada, Krishna district;
(iii) that his father was K. R. Rao of Bezwada; and
(iv) that he held the degree of M.B.B.S., II Class, from the
Andhra Medical College, Vizagapatam, Andhra University.
On these facts, the appellant was convicted of the offence
under s. 419 I.P.C. for having cheated the Madras Public
Service Commission by personating as Kaza Krishnamurthy and
misrepresenting that he had the necessary qualifications for
the post advertised inasmuch as he held the degree of
M.B.B.S., and that this deception of the Service Commission
was likely to have caused damage to its reputation.
It may now be mentioned that the appellant was also tried
for offences under s. 420 and s. 465 I.P.C. in connection
with certain acts committed by him in June and October,
1944. The trial Court acquitted him of the offence under s.
465, but convicted him of the other offence. He was,
however, acquitted on appeal, by the Sessions Judge, of the
offence under s. 420 I.P.C.
The appellant’s conviction under s. 419 I.P.C. was confirmed
by the Sessions Judge and the revision against that
412
order was dismissed by the High Court. it is against this
order of the High Court that the appellant has preferred
this appeal after obtaining special leave.
It has been contended for the appellant that on the facts,
established in the case, no offence under s. 419 I.P.C. is
made out against him, as the appellant’s efficiency as a
surgeon is not in dispute, he having secured good reports
from his superiors during the period of his service and as
therefore there could be no question of the Service
Commission suffering damage in its reputation.
On the contrary, it is urged for the State that the offence
of cheating is made out against the appellant as he deceived
the Service Commission and that such deception was likely to
damage its reputation as he deceived the Service Commission
and obtained from it ‘property’ viz., the admission card
entitling him to sit at the Competitive Examination for the
appointment of candidates for these posts, and as the
appellant also deceived the Government of the State by his
false representations, and dishonestly induced it to appoint
him in service and pay him salary during the period of his
service.
Section 415 I.P.C., defines ‘cheating’ and
reads:
“Whoever, by deceiving any person,
fraudulently ordishonestly 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’.
Explanation-A dishonest concealment of facts
is a deception within the meaning of this
section”.
Cheating can be committed in either of the two ways des-
cribed in s. 415 I.P.C. ‘Deceiving a person’ is common in
both, the ways of cheating. A person deceived may be
fraudulently or dishonestly induced to deliver any property
or to consent to the retention of any property by any
person. The person deceived may also be intentionally
induced to do or to omit to do anything which he would not
have done if not deceived and which act of his caused or was
likely to cause damage or harm in body, mind, reputation or
property.
The Courts below, as already stated, found that the appel-
lant cheated the Service Commission by deceiving that he
held the degree of M.B.B.S. and by intentionally inducing
the:
413
Commission to recommend his appointment to the post of Civil
Assistant Surgeon, 11 Class, and that this act of the
Service Commission was likely to damage its reputation as
the appellant did not really possess the degree of M.B.,B.S.
Assuming, without deciding, that such a deception of the
Service Commission and its recommendation could, in certain
circumstances, cause damage to its reputation, we are of
opinion that in the circumstances of this case there was no
likelihood of the causing of such damage to its reputation.
There is nothing on the record to show that the Service
Commission could have ordinarily detected the deception or
that the appointment of the applicant to the post in the
Medical Service was the appointment of a person who proved
to be inefficient. On the contrary, the evidence on the
record shows that for about 10 years between his appointment
and the institution of this case, he served efficiently and
obtained good reports from the Departmental Superiors. His
incompetency for the post was due to his having not obtained
the minimum academic qualifications prescribed for the
candidates for these posts. We are therefore of opinion
that the appellant has not committed the offence of
‘cheating’ as defined in the latter part of s. 415 I.P.C.,
even though he had deceived the Service Commission by re-
presenting himself to be a duly qualified candidate, and
thus induced it to select him for the post.
It was argued for the State that the Public Service
Commission held a competitive examination and must have
therefore issued an admission card to the appellant
entitling him to sit at that competitive examination and
that therefore the appellant having induced by deception the
Service Commission to deliver to him the admission card
which is ‘property’, committed the offence of ‘cheating’ as
defined in the first part of s. 415 I.P.C. There is no force
in this contention for the simple reason that there is
nothing on the record to indicate that an admission card was
issued entitling the appellant to sit at the competitive
examination. In fact, no examination as such took place,
and the contention for the respondent appears to have been
made under a misapprehension arising out of the letter of
the Secretary of the Service Commission to the Surgeon-
General with the Government of Madras stating that he was
enclosing the list containing the names and other
particulars of 45 candidates who were successful at the
competitive examination held by the Commission for the
direct recruitment of Civil Assistant Surgeons, Class II
(Men) in the Madras Medical Service. It is however clear
from the record that the candidates were simply interviewed
by the Commission. There is nothing on the record to show
that any written examination to which admission was by
admission cards, took place. The judgment of the Magistrate
states:
414
“The accused was interviewed by the Service
Commission as seen from Exhibit P-70, extract
of Service Commission particulars”.
The same statement is made in the judgment of the Sessions
Judge who said:
“The accused sent an application Ex. P-72…..
showing that he passed M.B.,B.S. degree
examination, and on receiving it and
interviewing him, the Public Service
Commission selected him as Civil Assistant
Surgeon, Class 1″.
The High Court states the same in its judgment. It said:
“In 1948 he sent an application to the Madras
public Service Commission for selection as
class 11 Civil Assistant Surgeon and was
selected as such following an interview by the
said body”.
In these circumstances, we cannot hold merely on the basis
of suggestions, that any competitive written examination was
held and that any admission card was issued to the appellant
entitling him to sit at the examination and, consequently,
cannot hold that the offence of cheating by dishonestly
inducing the Service Commission to deliver him property was
committed by the appellant.
The only other question to determine now is whether the
appellant deceived the Government of Madras and dishonestly
induced it to deliver something in the form of salary to the
appellant. It is urged that the appointment to the post lay
with the Government and not with the Service Commission and
that ‘the Government would not have appointed him to the
post in the Medical Service if it had not believed that the
appellant possessed the necessary qualifications which, in
his case, would be a degree of M.B., B.S., and that such a
belief was entertained by the Government on account of the
deception practised by the appellant in misrepresenting in
his application that he held such a degree. On the other
hand, it is contended for the appellant that the delivery of
‘property’ is to be by the person deceived, in view of the
language of s. 415 I.P.C., and that the person deceived, if
any, was the Service Commission and not the Government, the
application containing the misrepresentation having been
made to the Service Commission and not to the Government.
We accept the contention for the respondent. The ap-
pointments to the Medical Services are made by Government.
The Service Commission simply selected the candidates and
recommends their names to Government for appointment. This
is clear from letter Exhibit P. 47 from the Secretary to the
Service Commission to the Surgeon-General with the
Government of Madras. The letter refers to the enclosing
415
of a list containing the names and other particulars of the
candidates who were successful at the examination, their
names being arranged in order of merit. It refers to the
relaxing of a certain rule in view of the paucity of
candidates and states that they may be appointed, if
necessary, pending receipt of the certificate of physical
fitness and a further communication from the commission.
This is also clear from the provisions of the Government of
India Act, 1935. Section 241 provided that appointments in
connection with the affairs of a Province will be made by
the Governor of the Province. Sub-s. (1) of s. 266 makes it
a duty of the Provincial Public Service Commission to
conduct examinations for appointments to the Services of a
Province. Clause (a) of sub-s. (3) provides that the
Provincial Public Service Commission shall be consulted on
all matters relating to methods of recruitment to civil
services and for civil posts and cl. (b) provides that it
shall be consulted on the principles to be followed in
making appointments to civil services and posts and on the
suitability of candidates for such appointments. The Public
Service Commission is constituted in pursuance of the
provisions of s. 264. It is thus a statutory body and
independent of the Government. This aspect of a Public
Service Commission was emphasized in State of U.P. v.
Manbodhan Lal Srivastava(1) when considering the
corresponding provisions of art. 320 of the Constitution.
This Court said:
“Once, relevant regulations have been made,
they are meant to be followed in letter and in
spirit and it goes without saying that
consultation with the Commission on all
disciplinary matters affecting a public
servant has been specifically provided for in
order, first, to give an assurance to the
Services that a wholly independent body, not
directly concerned with the making of orders
adversely affecting public servants, has
considered the action proposed to be taken
against a particular public servant, with an
open mind; and, secondly, to afford the
Government unbiassed advice and opinion on
matters vitally affecting the morale of public
services”.
It is in view of these provisions that the Public Service
Commission invites applications for appointment to the
various posts under the Government and subsequently makes a
selection out of the candidates for appointment to those
posts. The selection may be after holding a written
examination Dr after interviewing candidates or after doing
both. Names oil the candidates selected are arranged in
order of merit and forwarded to the Government. The
Government is expected, as a rule,
(1) [1958] S.C.R. 533.. 543.
116
to make appointments to the posts from out of the list, in
the same order. It has, however, discretion not to appoint
any part of the persons so selected and securing a place in
the order of merit which would have ordinarily led to his
appointment.
Any representation made in an application for appointments
is really a representation made to the Government, the
appointing authority, and not only to the Public Service
Commission to which the application is presented and which
has to deal with that application in the first instance. up
to the stage ,of selection. The object of the applicant was
to secure an appointment and not merely to deceive the
Public Service Commission and sit at the examination or to
appear at the interview. The deception was practised for
that purpose and therefore there seems to be no good reason
for holding that the deception came to an end once the
Service Commission was deceived and had taken action on it
as a result of the deception. A false representation in an
application to the Service Commission continues and persists
to be so till the application is considered by the final
authority responsible for making the appointments and must
therefore be deemed to be made to that final authority as
well. In the instant case, when the recommendation of the
Service Commission was sent to the Government, the
qualifications of the recommended candidates, including the
fact that the appellant had passed the M.B.,B.S. examination
were mentioned. The Government therefore believed that the
appellant possessed the degree of M.B.,B.S., that as the
Service Commission had scrutinized the application in that
regard and had satisfied itself that the appellant possessed
that degree. The consequence of that is that the Government
were led to believe that fact, which thus became a false
representation.
We are therefore of opinion that the appellant’s misre-
presentation to the Service Commission continued and
persisted till the final stage of the Government passing an
order of appointment and that therefore the Government
itself was deceived by the misrepresentation he had made in
his application presented to the Service Commission.
The fact that the Service Commission is an independent
statutory authority has no relevant bearing on this
question. It is a statutory body as it is constituted under
he provisions Of -a statutes. It is independent of the
Government in the sense that in its selection of candidates
or in its tendering advice to the Government it does not
take any hint or instructions or due from the Government.
It brings to bear its own independent mind to judge the
comparative merits of the candidates and their suitability
to the posts they apply for. Its function is to advise the
Government on the suitability of the candidates. It is
therefore a statutory adviser to Government in the matter of
appointment to the Services. Deception of such an adviser
is
417
deception of the Government which is expected to pay heed to
its advice and act accordingly.
There have been cases in which servants or agents of an
authority have been deceived while the loss has been
suffered by the authority concerned. In such cases, the
person deceiving the servants or agents has been held to
have deceived the authority concerned, though no direct
question was raised about the deception being made not to
the authority but to is servant. The principle of the
cases, to our mind, fully applies to the case of candidates
deceiving the Public Service Commission and thereby
deceiving the Government in believing that they satisfied
the various conditions prescribed for candidates for those
appointments. We may refer to some such cases.
In the Crown v. Gunput(1) the accused who had produced a
railway pass with an altered number before the ticket
collector when traveling by a train, was held to have
thereby dishonestly induced the railway company to do or
omit to do what they otherwise would not have done or
omitted by the production of the altered pass. The
deception of the ticket collector was considered to be
deception of the railway company.
In P. E. Billinghurst v. H. P. Blackburn(2) certain bills
were presented by a company for payment. They were checked
by Government officials who were deceived by certain repre-
sentations made by subordinate officials through whom the
bills had passed, and consequently payments were made in
satisfaction of the demands under the bills. The persons
concerned in causing the deception were convicted of
cheating the Government.
In Legal Remembrancer v. Manmatha Bhusan Chatterjee and
Legal Remembrancer v. Hridoy Narain(3) it was held that if
the evidence showed that responsible officers of the East
Indian Railway Company and its Asansol Office were deceived
and induced either to allot wagons to a certain colliery
which would not otherwise have been allotted or to make out
wagon chalans for the colliery which would not otherwise
have been made, it was sufficient to support the allegations
in the charges that the railway company was, by reason of
deceipt, induced to act in a certain way. The deception of
the responsible officers was thus taken to be the deception
of the railway company, the possible damage to whose
reputation was remote.
In Emperor v. Fazal Din(4) it was held that the deception
practised was likely to cause damage or harm to the person
on
(1)1868 Punj. Rec. Col. Case No. 6. (2) 27 C.W.N. 821.
(3)I.L.R. 51 Cal. 250 (4)1906 4 Crl. L.J. 355.
L/P(D)ISCI-14
418
whom it was practised or to the railway authorities whose
agent he was in the matter of appointments.
In Queen-Empress v. Appasaimi(1) the act of the accused in
obtaining, by personation, a hall ticket from the
Superintendent at a University Examination and in signing
the name of another person on the examination papers was
held to indicate an intention on his part to lead the
University authorities to believe that the examination
papers were answered by the other person. This again is on
the principle that the deception of the Superintendent who
was working for the University was a deception of the
University itself.
Similarly, in Ashwini Kumar Gupta v. Emperor(2)
the accused personated another person at a University
examination cheating the Registrar. It was held that this
not only damaged the reputation of the Registrar, but also
that of the University. Reference may also be made to the
case reported as In re: Hampshire Land Company(3) in which a
Society had lent money to a company on the borrowing of the
directors of that company who were not competent to borrow,
the resolution conferring on them the power of borrowing
being invalid for certain reasons. It was held that the
Society had a right to assume, in a case like that, that all
the essentials of internal management had been carried out
by the borrowing company. On the same principle it can be
said that the Government of the State had a right to assume
that the Service Commission had verified that the candidates
selected by it for appointment by the Government possessed
the necessary qualifications and in that view the scrutiny
by the Service Commission can be said to be on behalf of the
Government.
The Government appointed the appellant to a post in its
Medical Service on being induced by deception that he was
fully qualified for the appointment. In consequence of the
appointment, Government had to pay him. the salaries which
fell due. It is clear therefore that the appellant, by
deceiving the Government, dishonestly induced it to deliver
property to him and thus committed the offence of cheating
under s. 415 I.P.C. as he pretended to be Kaza Krishnamurthy
which he was not. The offence really committed by him was
‘cheating’ by personation, punishable under s. 419 I.P.C.
The conviction of the appellant for this offence is
therefore correct. We accordingly dismiss his appeal and
order that he will surrender to his bail and serve out the
sentence.
Appeal dismissed.
(1) I.L.R. 12 Mad. 151. (2) I.L.R. 1937 (1) Cal. 71.
(3) 1896 (2) Ch. 743.
419