ION Criminal Appeal No 55 of 1955
Appeal by special leave from the judgment and order dated August 26 1957 of the Bombay High Court in Criminal Appeal No 1208 of 1955 arising out of the judgment and order dated March 31 1955 of the Sessions Judge Baroda in Criminal Appeal No 13 of 1955
M K Ramamurthi and J B Dadachanji for the appellant
RGanapathy Iyer and R H Dhebar for the respondent
April 19
The Judgment of the Court was delivered by SARKAR J
The appellant and two others were convicted by a Magistrate under section 420 read with sections 511 and 34 of the Indian Penal Code and each was sentenced to rigorous imprisonment for 12 months and a fine of Rs 500 and in default of payment a further period of imprisonment for four months
On appeal the accused persons were acquitted by a Sessions Judge
The State then appealed to the High Court at Bombay and the High Court set aside the order of acquittal and restored the order passed by the learned Magistrate
Accused No 1 alone has appealed against the order of the High Court to this Court
The three accused persons approached one Ramanlal and the third accused told Ramanlal that accused 555 Nos 1 and 2 were proficient in duplicating currency notes and they were prepared to do it for Ranlanal who should take advantage of the offer
The third accused then asked Ranianlal to think over the matter and promised to come again
Ramanlal later mentioned this matter to his friend Champaklal the complainant and the two decided to trap the accused persons disbelieving their professed power to du plicate notes
The third accused again came as promised and met Rtamanlal and Champaklal
Champaklal promised to find currency notes for Rs 20000 for duplicating and a date was fixed when it was to be done
Thereafter Ramanlal and Champaklal informed the police
The police hid themselves in the house of Ramanlal where it had been fixed with the accused that the duplicating would be done
The three accused arrived duly
The second accused spread bottles blank papers etc on a carpet and the first accused the appellant asked Champaklal to produce the currency notes
Champaklal who was carrying a bag supposed to contain the promised currency notes worth Rs 20000 took out two currency notes of Rs 100 each from the bag and gave them to the appellant
As soon as the appellant bad taken the money Champaklal gave the pre arranged signal and the police came into the room and arrested all the accused persons
They were thereafter prosecuted for the offence of an attempt to cheat upon a complaint lodged by Champaklal with the result already mentioned
Three points were argued by the learned advocate for the appellant
First it was said that the charge was for an attempt to cheat Champaklal but there was no evidence to how that any representation bad been made by anyone to Champaklal
The Courts below however found that such a representation had been made and we think that the finding is clearly supported by the evidence on record
The next point taken was that there had been no attempt to commit the offence of cheating but only a preparation to commit that offence which was not punishable
It seems to us clear that an attempt to commit the offence bad actually been made
A fals representation had been made and a sum of Rs 200 556 had been obtained from Champaklal
These clearly are acts done towards the commission of the offence within the meaning of section 511 of the Indian Penal Code
In fact the making of the false representation is one of the ingredients for an offence of cheating under section 420 of the Indian Penal Code
So also the delivery of property is another of such ingredients
Both these ingredients took place in this case and the accused brought them about
Therefore it cannot be said that the accused had only made a preparation and not an attempt to commit the offence
The last point argued was that there was no attempt to cheat because the complainant had not been deceived
It is true that the complainant bad not been taken in
He had never believed that the accused could actually duplicate currency notes
He feigned belief only in order to trap the accused
That however clearly makes no difference so far as an attempt to cheat is concerned
The accused had attempted to cheat the complainant
That they had failed in their attempt is irrelevant in considering whether they had committed the offence of attempting to cheat
This view of the matter has been accepted in the High Courts uniformally
In The Government of Bengal vs Umesh Chunder Mitter 1 it was observed that  A man may attempt to cheat although the person he attempts to cheat is forewarned and is therefore not cheated
 This is clearly the right view
This appeal is entirely without merit and it is dismissed
Appeal dismissed
ILR 116


Summary:
The Madhya Pradesh Government issued a notification under section 5 2 of the II of 1948 prescribing 477 the minimum rates of wages for employment in stone breaking and stone crushing operations carried on in mines in exercise of the authority delegated to it by the President by a notification under article 258 of the Constitution
The appellant company engaged in manganese mining industry challenged the validity of the said notification by a writ petition filed in the High Court and its case was that the said notification was ultra vires section 52 of the Act
The High Court found against the appellant and rejected the petition
The question for determination in the appeal therefore was whether item 8 in Part 1 of the Schedule to the Act properly construed included stone breaking and stone crushing operations in a mining industry Held that item 8 in Part 1 of the Schedule to the  was not intended to cover the breaking or crushing of stones incidental to mining operations and must be limited to stone breaking and stone crushing employment in quarries
The impugned notification was therefore ultra vires section 52 of the Act and could not be enforced
It would however be open to the Government if it so desired to achieve the object it had in view in issuing the impugned notification by adding appropriate items to the Schedule in exercise of its power under section 27 of the Act  Held further that it was not necessary for the appellant to challenge the vires of the Presidential notification in the first instance in order that he might impugn the notification in question
A Thangal Kunju Musaliar vs M Venkitachalam Potti   referred to