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TMI Blog1931 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly to pay on October 1, According to the accused's case there was no express agreement for payment, and payment was to be on the date usual according to the custom of the market, which on the evidence I think was on the expiration of one month. But for the purposes of the charge I think it makes no difference whether there was an express promise to pay on October 1, or an implied promise to pay at the expiration of a month, Before the goods were paid for, viz., on October 1, a mortgagee of the accused's stock took possession of the accused's place of business with all the stock therein, including the goods purchased from the complainant. On October 13, the accused filed his petition in insolvency. The accused is now charged with cheating by dishonestly inducing the complainant to deliver the rolls of lead sheets. 3. A certain amount of evidence was given on behalf of the accused to suggest that he had an inquiry for these goods from the Government of India and that he intended to sell them very quickly. That evidence is, I think, not of much importance. There was also some question as to whether when the goods were delivered from the docks the accused told the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade a struggle against that fate, A man who is in embarrassed circumstances is not bound to disclose all his circumstances to people with whom he deals on credit. If he were, he could never get any credit. He is not entitled of course to make any untrue statement. If any question is put to him, he must answer truthfully ; if he does not, there is a clear case of cheating. But in this Case it is not suggested that he was asked any question or made to the complainant any false representation. 6. Now under Section 415, which defines cheating, there must be deceit of the person cheated whereby he was fraudulently or dishonestly induced to deliver property. That is the only material part of the section for the purposes of this case. Mr. O'Gorman for the accused says that you must have some definite representation of fact on which to base your cheating. I am not prepared to go as far as that. I think that if a person orders goods on credit, and promises expressly or impliedly to pay for them on a particular date, then if the prosecution proves that at the date of the contract the circumstances of the accused were such that he must have known that it was practically impossible that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, that the appeal must be allowed. The fine will be refunded and the bail bonds cancelled, R.S. Broomfield, J. 9. The material facts in this case are as follows, The appellant by his manager ordered certain goods from the complainant on September 16. The goods were delivered on September 24, At the time of the order the appellant was in embarrassed circumstances. He had mortgaged all his stock -in-trade on June 9, and on October 1 the mortgagee took possession, On October 13, he made an application to be declared insolvent, The charge against him is under Section 420 of the Indian Penal Code that he committed cheating by dishonestly inducing the complainant to deliver the goods in question, viz., three rolls of lead sheets valued at Rs. 561, 10. Now the complainant alleged that at the time these goods were ordered there was a promise to pay for them on October 1. There is no corroboration of his statement on this point which can be said to have any value, and the learned Magistrate has not found as a fact that there was any such promise. There was further a suggestion that false representations were made as to the destination of the goods with the idea of leading the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation in words. In fact the explanation to the section says that " a dishonest concealment of facts is a deception within the meaning of this section," although, as pointed out in Mayne's Criminal Law of India, p. 698, the concealment must be of something which there is a duty to disclose, and in the present case it could not be seriously argued that it was the duty of the accused to disclose to the complainant the details of his financial position. But the deceit referred to in the section and the illustration may clearly be by conduct. The nature of the transaction itself may imply an assertion, and in all essential points I think it may be said that the present case is similar to the case of Reg. v. Jones (1898) 1 Q.B. 119 The facts there were that a person went into a restaurant and ordered a meal knowing that he had no money. It was held that he was not guilty of false pretences under the English Larceny Act but was guilty under the provisions of a special statute penalising the obtaining credit by fraud. In my opinion there can be no doubt that in India he could have been convicted under the provisions of Section 420 on the ground that his conduct necessarily implied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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