Case ID: 1777

Judgment:
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 L.M.S. degree or the M.B.	 B.S.	 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 M.B.B.S.	 II Class	 from the Andhra Medical College	 Vizagapatam	 Andhra University. On these facts	 the appellant was convicted of the offence under section 419 I.P.C. 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 M.B.B.S.	 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 I.P.C. 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 I.P.C. The appellant 's conviction under section 419 I.P.C. 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 I.P.C. 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 I.P.C.	 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 I.P.C. '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 M.B.B.S. 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 M.B.	B.S. 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 I.P.C.	 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 I.P.C. 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 M.B.	B.S. 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 M.B.	 B.S.	 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 I.P.C.	 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 U.P. vs Manbodhan Lal Srivastava(1) 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 M.B.	B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.	B.S.	 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 Gunput(1) 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. Blackburn(2) 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 Narain(3) 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 Din(4) it was held that the deception practised was likely to cause damage or harm to the person on (1)1868 Punj. Col. Case No. 6. (2) (3)I.L.R. (4)1906 L/P(D)ISCI 14 418 whom it was practised or to the railway authorities whose agent he was in the matter of appointments. In Queen Empress vs Appasaimi(1) 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 Emperor(2) 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 Company(3) 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 I.P.C. 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 I.P.C. 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 U.P. 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 I.L.R. 	 Emperor vs Fazal Din 	 Queen Empress vs Appasami	 I.L.R. Mad. 151. Ashwani Kumar Gupta vs Empreror. I.L. R. and In re: Hampshire Land Company	 referred to.