CHEATING.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON CHEATING.

Duncan Abeynayaka – LLB, Attorney At Law.

 

PENAL CODE PROVISIONS

398.     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, 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 causes damage or harm to that person in body, mind, reputation, or property, or damage or loss to the Government is said to "cheat".

Explanation-A dishonest concealment of facts is a deception within the meaning of this section.

21 (4). A person is said to loss wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.

22.      Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing "dishonestly".

400.     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.

 

01. THE KING v. CHANDRASEKERA 23 NLR 286

A gave a cheque to the accused for money borrowed by him, and made accused understand that he had no money in the Bank. In a few days the accused knowing that the cheque would not be met on presentation endorsed the cheque and gave it to B to cash it at C's boutique. The accused did not accompany B. B made C understand that it was a good cheque, and said that he would be responsible if it was not met.

Held, in the circumstances that the accused was guilty of cheating. To constitute cheating it is not necessary that the deception should be by express words or visible representation. It may be equally practiced by conduct employed in the transaction itself.

The inducement to deliver need not have been wholly due to the deceit independent of other auxiliary causes. The accused by endorsing the cheque and giving it to be cashed made a representation.it was a good cheque. Although B said that he would be personally responsible if the cheque was not met, none the less C was paying the money on account of the cheque itself.

 

02. HANIFFA V. SALIM 39 NLR 348

The accused was entrusted with some jewellery by H to be pawned. He pawned the jewellery and delivered the pawn ticket to H after endorsing it. The accused thereafter represented to the pawn broker that he had lost the pawn ticket, made the requisite statutory declaration under the Pawn Brokers' Ordinance, and redeemed the jewellery.

Held, that the accused had committed the offence of cheating under section 398 of the Penal Code.

Theft under the Code is the taking dishonestly of movable property out of the possession of any person without that person's consent, and the fact that that consent is obtained by means of a deception of this nature does not render it any the less a consent within the meaning of that definition. The question, however, arises as to whether the appellant could have been properly convicted of any other offence on the facts, and it appears to me that the offence that he committed was cheating by deceiving a pawnbroker by means of this false affidavit representing that he had lost the ticket, and so dishonestly inducing him to deliver the pawned necklace to him.

03. PERERA V. ATTORNEY-GENERAL [1985] 2 SRILR. 156

It is the inducement and not the delivery that constitutes the gist of the crime. The words "induces the person so deceived to deliver any property to any person in the Penal section" are wide enough to include not only property in the ownership or possession of the person so induced but also any property under the control of the person so induced on whose authorisation the property shall be delivered. This amounts to constructive delivery of the goods. Complainant gave his authorisation being deceived by the false representation made by the accused-appellant. The ingredients of the crime of cheating were thus proved beyond reasonable doubt.

In order to prove a charge of cheating the prosecution must establish the following ingredients

(1 ) the deception of any person,

(2 ) (a) by fraudulently or dishonestly inducing that person,

(i) to deliver any property to any person, or

(ii) to consent that any person shall retain any property, or

(3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or ommission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

 

04. ATTORNEY-GENERAL V. DEWAPNYA WALGAMAGE AND ANOTHER [1990] 2 SRI L.R. 212

Dishonesty is the element of mens rea in relation to all three offences of theft, cheating and criminal misappropriation. Lines of demarcation cannot be drawn in respect of these offences only with reference to the element of mens rea.

 

05. KAPILA NISHSHANKA KUMARAGE VS OFFICER-IN-CHARGE, SPECIAL CRIMES INVESTIGATION BUREAU SC APPEAL NO. 51/18

Those multiple ways in which the offence of ‘cheating’ may be committed, are as follows:

1. By deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person.

2. By deceiving any person, fraudulently or dishonestly induces the person so deceived to consent that any person shall retain any property.

3. By deceiving any person, intentionally induces the person so deceived to do anything which he would not do if he were not so deceived, and which act causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, or damage or loss to the Government.

4. By deceiving any person, intentionally induces the person so deceived to omit to do anything which he would do if he were not so deceived, and which omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property, or damage or loss to the Government.

It would therefore be seen that deception is the core ingredient of the offence of ‘cheating’, and it is common to all four ways in which the offence may be committed. In comparison thereof, fraudulence and dishonesty, which operate as alternate ingredients of the offence, are expressly provided ingredients only to the first and second ways in which the offence of ‘cheating’ may be committed, wherein the offender induces the victim to either (a) deliver any property to any person, or (b) to consent that any person shall retain any property. The third and fourth ways in which the offence of ‘cheating’ may be committed, do not contain ‘fraudulence’ or ‘dishonesty’ as constituent ingredients. Nevertheless, it is important to note that ‘dishonesty’ is embedded in the ingredient of ‘deception’, and hence ‘dishonesty’ is actually a requirement for all four ways in which the offence of cheating could be committed.