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(1893) 78. R 3 1,000 due to Mr. Morton by a payment of Rs. 12 in view of exchange.
Mr. Morton's explanation was to the effect that he had received the sum
due to him by a cheque on the date mentioned in the certificate which he
had filed in the case, but he had not up to that time, namely, the 13th
of June 1892, negotiated that cheque. That an attempt which he
had made ended in an offer to negotiate on the condition that Mr.
* Morton should endorse the cheque. For this reason, and also on
account of the heavy discount charged by [172] the bank, Mr. Morton
declined to negotiate the cheque ; and he ended his evidence with the
statement that up to the present be had not been paid, but proposed to
present the cheque through an agent in England. Upon this and other
evidence the Subordinate Judge ruled that as no fees actually were paid
to Mr. Morton no costs could be allowed on the certificate. I have gone
into the evidence at this length, though I might have contented myself
with the finding of the Subordinate Judge, because the point raised is an
important one and affects the proceedings of Subordinate Courts, and I
think it well that the exact nature of the evidence on which the Judge
acted should be fully set out. The learned counsel who apoeared for the
petitioners contended that, in thus going behind the order of Mr. Laggatt,
Mr. Greeven acted without jurisdiction, and that if he did not act without
jurisdiction he acted illegally. It should be noted here that Mr. Greeven
appears to have passed his order under Rule 221 of the Rules of this Court.
That was of course an error. The order by which Subordinate Courts are
guided in this matter is Circular Order No. 5 of 1889- There is not, how-
ever, in any material ooint affecting this case any difference between Rule
221 of the Rules of this Court and the provisions of Circular Order No. 5 of
1889, The latter requires that when costs are taxed between party and
party no fee to any pleader shall be allowed unless, prior to bhe commence-
ment of taxation, a certificate dated and signed by the pleader has been
filed certifying that the fee claimed by him was actually paid to him by
the client. -Looking to the terms of the Circular Order and also to the fact
that on the 21st of March 1892, when Mr. Laggatt passed his order, costs
had not been taxed, I am clearly of opinion that Mr. Greeven had juris-
diction to consider the certificate and whether or not payment had been
made. The taxation of costs was a matter subsequent to the 21st of March
1892, and by the Circular Order ib was the duty of the Subordinate Judge
of Dehra Dun to exercise proper caution that no fee was allowed in the
bill of costs the payment of which had not been certifiad in the manner
required by this order. The Court therefore acted with jurisdiction and
acted legally in the exercise of its jurisdiction. I agree in finding with
the Subordi-[173]nate Judge that in face of that evidence and in consi-
deration of the manner in which the so-called payment was made, that it
was not an actual payment as required by the Circular Order.
The petition before me will stand dismissed with costs.

Application rejected.

828



YII] In re PETITION OP R. MACCREA 15 All. 174

15 A 173 = 13 A.W.N. (1893) 71.
APPELLATE CEIMINAL. FEB. 24.

Before Mr, Justice Knox and Mr. Justice Blair. APPFT

LATE

IN THE MATTER OF THE PETITION OF K. MACCREA. CRIMINAL

[24th February, 1893.J

Letters Patent, s. 32 Act XLV 0/1860, ss. 415, oil Attempt Acts necessary to consti- 15 A- 173 =
tute an attempt. . 13 A.W.N.

Section 511 of the Indian Penal Code wa8 not meant to cover only the penulti-
mate act towards completion of an offence and not acts precedent, if those acts
are done in the course of the attempt to commit the offence, or done with the
intent to commit it and done towards its commission.

Whether any given act or series of acts amounts to an attempt of which the
law will take notice or merely to preparation is a question of fact in each case.

[R., 25 B, 90 (97) ; 2 A.L.J. 718 (719}.l

[N.B, For a later stage of the case, see 15 A. 310, infra.!

THE facts of this case sufficiently appear from the judgment of the
Court.

Mr. A. H. S. Reid, for the applicant.

JUDGMENT.

KNOX, J.- This is an application under s. 32 of the Letters Patent of
1866, praying that the case of one Robert MacCrea, who was convicted
and sentenced at a Criminal Sessions of this Court held in the month of
June, 1892, might be declared a fit case for appeal to Her Majesty in
Council on the grounds

1st. That the evidence that the said Robert MacCrea acted with
guilty knowledge and intention, was most unsatisfactory and totally
inadequate to justify the conviction.

2nd. That one of the witnesses for the prosecution had stated that,
so far as he was aware, no application had been made by the said
MacCrea for payment of interest or renewal of any Government promissory
note, and that the acts of the said MacCrea had simply amounted to an
asking for information and to the despatch of a money order with a view
to obtain that information.

[174] 3rd. That these acts of the said MacCrea, even if they had
been accompanied with guilty knowledge, do not amount to more than a
preparation for an attempt to cheat, and that such an attempt is not an
offence under the Indian Penal Code.

4tb. That no other acts attributed to the appellant could be held to
constitute the offence of attempting to cheat under the Indian Penal
Code.

5bh. That with the substantive charge the charge of abetment must
fail.

6th. That, even if the conviction on the charge of abetment be good,
the sentence passed was illegal.

The charges upon which the petitioner was convicted were three in
number. They consisted of :

(1) An attempt to cheat, and thereby fraudulently to induce the
delivery of a valuable security.

(2) Conspiracy with one Asad Ali, and thereby abetment of the
offence of cheating and thereby inducing the delivery of a valuable
security.

829



IS All. 175 INDIAN DECISIONS, NEW SERIES [Yol.

1893 (3) Abetment of on attempt to cheat, committed by the aforesaid

FEB. 24. Asad AH.

Upon conviction of the three offences thus charged, MacCrea was
APPEL- sentenced to rigorous imprisonment for two years.

LATE NO argument was addressed to us upon the fifth and sixth grounds

CRIMINAL, taken in this petition. The first ground is directed to matters of fact

" " which were distinctly within and were left to the decision of the jury.

' ~ There was evidence upon which such a finding could be based. That

' ' ' evidence was found by a majority of the jurors to be satisfactory and

sufficient for a conviction.

The only question really pressed upon our consideration was
whether the jury had been rightly directed when told that if they
were satisfied that the acts covered by the evidence and said to have
been committed by the said MacCrea were so committed, those acts
[175] performed with guilty intent did amount to an attempt at cheating
under the Indian Penal Code.

It is important first to set out to that portion of the charge which re-
lated to the first charge on the charge-sheet, viz., the attempt to commit
'an offence under s. 420 of the Indian Penal Code. A careful note of this
portion of the charge was made before it was delivered to the jury, and
the jury were directly charged from the note thus recorded. The instruc-
tion to them was that before they could find the prisoner MacCrea guilty
of an attempt at cheating as charged, they must satisfy themselves that
there was proof of an intention on his part to cheat and thereby induce
the delivery to himself or to Asad AH of a Government promissory note
which he knew to be the property not of the late brother of Asad AH but
of one Muhammad Husain AH Khan.

That, coupled with proof of such intention to cheat on his part, there
was proof of an act or acts done by the said MacCrea towards such
cheating.

That those acts if proved, were sufficientiy important to be taken
notice of by the law, and also that they were sufficiently near to the act
of cheating intended and contemplated.

The various acts deposed to on the part of the witnesses for the Crown
were then detailed, and the evidence bearing on them pointed out and
commented on, and it was left to the jury to find and to pronounce whe-
ther the evidence proved chat those acts had been committed by the
prisoner, and whether they were evidence of an intention on his part to
cheat and thereby induce delivery of a valuable security.

As to whether the acts, or any of them, were sufficiently great for
tihe law to take note of, the jury were instructed that, if they were satis-
fied'that MacCrea had, as alleged by the Crown, towards the offence of
cheating, used the letters of administration granted by the Subordinate
Judge of Lucknow, knowing them to be false in the material point that
they set out Government promissory note No. 9764 to have been the
property of Husain AH Khan, Cbabuk [176] Sawar, this was an act
sufficiently great for the law to take note of, and an act which it would
take note of.

As regards proximity, the jury were instructed to consider whether
any of the acts were sufficient to excite reasonable apprehension that the
act attempted would be carried out and accomplished with the intent to
cheat.

830



YII] In re PETITION OP B. MACCBEA 15 All 177

Tt is contended by Mr. Reid who aopears for the petitioner, that no 1893
act committed by MacCrea amounted to more at the outside than a pre- FEB. 24.
paration for an attempt to commit the crime, and that no act was punish-
able under the Indian Penal Oode as an attempt, unless it was an act APPEL-
which, if successful, would have resulted in the commission of the crime LATE
attempted. CRIMINAL.

In the argument which he addressed to us, the learned counsel

drew our attention mainly and almost entirely to the various letters which K

were addressed by MacGrea to the Comptroller-General's office, and ' ' '
passed by without comment the various other acts committed by MacGrea
in the inverval between the 17th day of June and the 18th day of Octo-
ber, 1891. His contention was two-fold ; first, that none of the communi-
cations addressed to the Comptroller-General, did, as a matter of fact,
deceive that officer, or any of the officers through whose hands they passed,
and, second, that beyond those acts there would necessarily have followed
several other acts, some of them to be done by himself or by Asad Ali,*
extending over a period of time which might have amounted to two years,
before the Comptroller-General would have paid over either the principal
or the interest due upon the Government note No. 9761.

But the notes of my charges to the jury show that their attention
was directed to various other acts which the Crown sought to establish,
and notably to the acts committed by the prisoner in making use of the
letters of administration granted to Asad Ali Khan and in the preparation
of a so-called copy of the lost note and its production before the city
Magistrate in October 1891.

In support of his contention, the learned counsel referred us to the
ease of The Queen v. Ramsarun Chowbey (1). That was a case [177] in
which upon the findings that a prisoner intending to procure a forged
document had directed a servant to purchase blank stamped paper on
which the document might be executed, and to describe himself to the
stamp vendor as the person who, the prisoner wished it to be deemed, was
the executant of that document, and that the stamp vendor has endorsed
upon the bond an endorsement stating that he had sold the stamp paper
to the person personated by the servant, the said prisoner was convicted
of an attempt to forge a valuable security. Sir Charles Turner in that
case held that the provisions of s. 511 of the Code would not extend to
make punishable, as attempts, acts done in the mere stage of preparation,
" although," he continued, " such acts, are doubtless done towards the
commission of the offence, they are not done in the attempt to commit the
offence, in the construction which I think should be put on the term
' attempt ' as used in this section. I regard that term, as here employed, as
indicating the actual taking of those steps which lead immediately to the
commission of the offence, although nothing be done or omitted which of
itself is a necessary constituent of the offence committed.."

In considering this case, it is to be noted, first, that the learned Judge
who arrived at this decision confesses that he arrived afc that conclusion
not without some doubt, and that be considered the endorsement no part
of the document intended to be forged, and that the act of the prisoner in
procuring the endorsement would not immediately lead to the forgery.
He further observed that the prisoner had had a most narrow escape.
The grounds upon which he acquitted the prisoner were, because he

(1) N.W.P.H.C.B. (1872) 46.
831



15 All. 178 INDIAN DECISIONS, NEW SERIES [Vol.

1893 considered that no act proved against him went beyond the stage of
FEB. 24. preparation.

We were next referred to the case of The Empress v. Riasat Ali (1).

APPBL- i n that case the learned Chief Justice appears to have acted upon English

LATE precedents, and those precedent,?, precedents of no modern date. So far

CRIMINAL, as I am concerned, I feel myself unable to follow the English law, because

there appears to me a wide difference between the meaning of the word

15 A. 173= ' attempt ' as understood by [178] English lawyers in the phrase " attempt

13 A.W.N. to commit a felony," and the word "attempt" as actually defined in the

(1893) 71. Indian Penal Code.

If there be such a difference, I have no hesitation in affirming that
we are bound to follow the Code. In Reg. v. Cheeseman, one of the cases
followed by Sir R. Garth, it is laid down that if the actual transaction
had commenced which would have ended in the crime if not interrupted,
there is clearly an attempt to commit the crime. In McPherson's case,
^the second case followed, it is said that " the word 'attempt' clearly conveys
with ifc the idea that if the attempt had succeeded, the offence charged
would have been committed. An attempt must be to do that which,
if successful, would amount to the felony charged." Now it is im-
possible to read these definitions of attempt and to fail to see that the
language used differs very greatly from the language used in s. 511 of tha
Indian Penal Code. Sir Charles Turner in the case just cited (The Queen
v. Ramsarun Chowbey (2) points out that in his opinion the language and
the illustrations used in s. 511 were designed to extend to a much wider
range of cases than would be deemed punishable as offences under the
English law. With all respect therefore to the learned Judges who
decided the case of The Empress v. Riasat Ali, I have no doubt myself that
the interpretation laid down by them is not a sound and exhaustive
interpretation of the word "attempt " as used in s. 511.

The case of The Queen- Empreess v. Dhundi (3), which was next cited
to us, is not a case in point. The Judge who referred that case and
whose reasons were adopted by this Court, points out that the person
upon whom the fraud had to be perpetrated had not been approached in
any way by the prisoner Dbundi.

The words used in s. 511 by which whoever attempts to commit
an offence punishable by the Code and in such attempt does any act
towards the commission of the offence, is guilty of an attempt,
appear to me to be quite wide enough to cover the acts committed
by MaoCrea. There was a stage in which he was undoubtedly only
making preparations, and had not got beyond the stage of pre-
paration. These were such acts as those when he first commenced
[179] making inquiries from the Public Debt Office to find if the note
No. 9764 was still outstanding ; when he instituted inquiries at the
Babrampur Hospital as to the death of Husain Ali Khan and the disposal
of his bedding.. These were acts in the preparation stage. But a
majority of the jury have found, and I agree with them, that MacOrea
committed a long series of acts subsequent to that which showed a
distinct intention to cheat ; acts committed for the purpose and with the
intent to bring all his preparations to bear upon the mind of the person
to be deceived : that with those acts, beginning with the procuring of
letters of administration setting out Asad Ali Khan as the lawful owner
of Government promissory note No. 9764, the forwarding of those false

(1) 7 C. 352. (2) K.W.P.H.C.R. (1872) 46. (3) 8 A. 304.

832



YII] In re PETITION OP R. MACCREA 15 All. 180

letters of administration and draft notice for publication in tbe Gazette, 1893
had begun an attempt; to cheat ; that in that attempt he had committed FEB. 24.
more than one act of distinct crime and sufficiently near towards comple-
tion to arouse apprehension and alarm that the attempt, if not interrupt- APPEL-
ed, would end in tbe commission of the offence. I do not hold, and have LATE
no hesitation, in saying, that s. 511 was never meant to cover only the CRIMINAL

penultimate act towards completion of an offence and not acts precedent,

if those acts are done in tbe course of the attempt to commit the offence, 15 A. 173 =
are done with the intent to commit it and done towards its commission. 13 A.W N,

It is no doubt most difficult to frame a satisfactory and exhaustive (1893) 71.
definition which shall lay down for all cases where preparation to commit
an offence ends and where attempt to commit that offence begins. The
question is not one of mere proximity in time or place. Many offences
can easily be conceived where, with all necessary preparations made, a
long interval will still elapse between the hour when the attempt to commit
the offence commences and the hour when it is completed. The offence of
cheating and inducing delivery is an offence in point. The time that may
elapse between tbe moment when the preparations made for commit-
ting tbe fraud are brought to bear upon the mind of the person to be
deceived and the moment when he yields to the deception practised
upon him may be a very considerable interval of time. There may
[180] be the interposition of inquiries and other acts upon bis part. The
acts whereby those preparations may be brought to bear upon the mind
may be several in point of number, and yet tbe first aot after preparation
completed will, if criminal in itself, be, beyond all doubt, equally an
attempt with tbe ninety and ninth act in the series.

Again, the attempt once begun and a criminal act done in pursuance
of it towards the commission of the act attempted, does not cease to be a
criminal attempt, in my opinion, because tbe person committing the offence
does or may repent before the attempt is completed. The attempt to
defraud a widow of valuable security commenced by an aot of criminal
intimidation committed in such attempt and towards the fraud does not
cease to be an attempt because the perpetrator repents and abstains from
completing the attempt.

The question whether the act is an act of preparation or an act in
the attempt and towards commission is a fact to be determined upon the
evidence. It is in most cases a question for the jury to distinguish be-
tween an act before attempt has begun, an act after attempt begun, and
towards commission of the offence attempted, and an act independent of
the attempt altogether. It cannot be said that there was not evidence in
this case upon which the jury could find under which of these heads the
acts committed by MacCrea properly fell.

I gave the case most careful consideration before I charged the jury.
I have listened with minute care and attention to the very able and
lengthened argument of the learned counsel who appeared for MacCrea
and have given that argument most careful consideration ; but I do not
find in it all one word which makes me hesitate or doubt that the convic-
tion was a proper and sound one. I do not think the case a fit case for
appeal and reject the application.

BLAIR, J. I wish to add a few words upon the sections of the Indian
Penal Code applicable to this case.

The offence, an attempt to commit which was the subject of the
charge before us, is created by s. 415 of the Indian Penal Code. The
worda ran as follows :

833
A VII 105



15 All. 181 INDIAN DECISIONS, NEW SERIES".

1893 [1811 " Whoever by deceiving any person fraudulently or dishonestly

FEB. 24. induces the person so deceived fco deliver any property or to do certain

other acts." Converting that section into a section dealing with attempts

APPEL- it would read : " Whoever by deceiving or attempting to deceive any

LATE person fraudulently or dishonstly attempts to induce, &c."
CRIMINAL That which is done in furtherance of the dishonest attempt, is to-

attempt to deceive, the act being one which must have a tendency to induce

ISA. 173= the person so deceived to do that which is dishonestly desired by the
13A.W.N. deceiver.

(1893) 71. The definition of " attempt " is conveyed in F. 511, Indian Penal Code.

The words are " whoever attempts to commit an offence punishable by
this Code "- " or to cause such an offence to be committed, and in such
attempt does any act towards the commission of the offence, &o."

It seems to me that that section uses the word " attempt " in a very
large sense ; it seems to imply that such an attempt may be made up of a
series of acts, and that any one of those acts done towards the commission
of the offence, that is, conducive to its commission, is itself punishable,
and, though the act does not use the words, it can mean nothing but
punishable as an attempt. It does not say that the last act which would
form the final part of an attempt in the larger sense is the only act
punishable under the section. It says expressly that whosoever in such
attempt, obviously using the word in the larger sense, does any act, <tc.,
shall be punishable. The term " any act " excludes the notion that the
final act short of actual commission is alone punishable, and the notion
that any of the other acts would be without the range of this section is
probably derived from the rulings in the English cases cited by Mr. Reid.
An illustration is fortunately appended to the section by which we are
enabled to test the soundness of that interpretation. Illustration (a).

" A makes an attempt to steal jewellery by breaking open a box
and finds after opening the box that there is no jewellery in it.
[182] He has done an act towards the commission of theft and is there-
fore guilty under this section."

That is an illustration applicable to theft, and yet, upon the very
face of the statement it would not be an attempt having regard to the
definition of theft in the Indian Penal Code, within the meaning of the
contention of Mr. Reid. The essence of theft is asportaiio, i.e., removal.
The opening of a box which might or might not contain valuables is not
an attempt to remove its contents it would require some act further
than that to constitute an attempt within the meaning of the English
cases cited by Mr. Reid.

Now in the present case the acts done were acts bearing, and intended
to bear, upon the mind of another person. The 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 chattels or to do or omit any of the things mentioned in
s. 415, then I think, within the meaning of s. 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.

it may be that further acts having a tendency to deceive might have
been required to complete the influence intended upon the mind of the
deceived. It may have been that preliminary inquiries and steps of other
kinds must have intervened between the act of deception and its entire
success ; but that would not, in my opinion ; render an act tending

834'



YH] BANNA MAL V. JAMNA DAS 15 All. 184

directly towards deception the less an attempt within the meaning of 1893
8. 511, even though a further act of deception did not follow, which might FEB. 24,
probably have been required to complete the offence of attempt within the
meaning of the English law. APPBL-

The difficulty with s. 511 might easily have been removed by saying LATE
that where in such an attempt, using tbe word in the larger sense, any CRIMINAI*



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 122 of 155)