minal 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 section R Chari G D Gupta section Balakrishnan R K Garg section C Agarwala D P Singh and M K Ramamurthi for the appellant
section 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 LMS degree or the MB BS 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 MBBS II Class from the Andhra Medical College Vizagapatam Andhra University
On these facts the appellant was convicted of the offence under section 419 IPC 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 MBBS 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 section 420 and section 465 IPC in connection with certain acts committed by him in June and October 1944
The trial Court acquitted him of the offence under section 465 but convicted him of the other offence
He was however acquitted on appeal by the Sessions Judge of the offence under section 420 IPC
The appellant s conviction under section 419 IPC 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 section 419 IPC 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 IPC 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 section 415 IPC 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 MBBS 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 MBBS 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 section 415 IPC 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 section 415 IPC 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 exhibit P 72  showing that he passed MBBS 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 MB BS 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 section 415 IPC 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 section
1 of section 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 section
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 section 264
It is thus a statutory body and independent of the Government
This aspect of a Public Service Commission was emphasized in State of UP vs Manbodhan Lal Srivastava1 when considering the corresponding provisions of article 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  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 MBBS examination were mentioned
The Government therefore believed that the appellant possessed the degree of MBBS 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 vs Gunput1 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 vs H P Blackburn2 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 vs Manmatha Bhusan Chatterjee and Legal Remembrancer vs Hridoy Narain3 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 vs Fazal Din4 it was held that the deception practised was likely to cause damage or harm to the person on 11868 Punj
Col Case No 6
2 3ILR 41906 LPDISCI 14 418 whom it was practised or to the railway authorities whose agent he was in the matter of appointments
In Queen Empress vs Appasaimi1 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 vs Emperor2 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 Company3 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 section 415 IPC as he pretended to be Kaza Krishnamurthy which he was not
The offence really committed by him was cheating  by personation punishable under section 419 IPC
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


Summary:
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 section 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 section 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 UP vs Manbodhan Lal Srivastava   The Crown vs Gunput 1868 Punj
Case No 6 P E Billinqhurst vs H P Blackburn  Legal Remembrancer vs Manmatha Bhusan Chatterjee  Legal Remem brancer vs Hridoy Narian ILR  Emperor vs Fazal Din  Queen Empress vs Appasami ILR Mad 151
Ashwani Kumar Gupta vs Empreror
IL R and In re Hampshire Land Company referred to