JUDGMENT : 1. Mr. G.W. Dick, a horse dealer, has been convicted by the City Magistrate of Lucknow on a charge framed under S. 420, I.P.C., alleging against him, that he, by deceiving Captain Laing, B.A.M.C., dishonestly induced that gentleman to pay over to him a sum of Rs. 200. The essential facts of the case admit of being briefly stated. The appellant, G.W. Dick, is a horse-dealer and he was entrusted by Captain Castle with a racing mare of the name of Tigress, which animal he was directed to dispose of for the owner's benefit at the best possible price. He received from Captain Laing an offer of Rs. 800 which be did not accept. Captain Laing insisted that the offer should be communicated to Dick's principal, that is to say, Captain Castle, and subsequently the appellant showed Captain Laing a telegram received by him from Captain Castle which purported to be, and was understood by Captain Laing to be a refusal on the part of Captain Castle of the aforesaid offer of Rs. 800. Thereupon Captain Laing raised his offer to Rs. 1,000, which was accepted, and he became the owner of the animal at that price. It may be noted ab one that there was no misrepresentation of any sorb or any sharp practice towards. Captain Laing with regard to the quality of the goods purchased by him i.e., of the mare Tigress. He was allowed every opportunity of examining the animal and he paid Rs. 1,000 because after reasonable trial and examination, he was satisfied that the mare was worth that price to him. Nevertheless it is true that a deception was practised upon Captain Laing in the matter of the telegram. As regards the precise nature of that deception the record before me is in my opinion seriously defective. Captain Castle has not been examined as a witness in the case. 2. Broadly speaking the lines upon which the trial proceeded in the Court below may be stated thus. The accused G.W. Dick was examined at length and the City Magistrate purports to accept as correct the story told by the accused in his examination except where he finds it to be clearly contradicted by reliable evidence. 2. Broadly speaking the lines upon which the trial proceeded in the Court below may be stated thus. The accused G.W. Dick was examined at length and the City Magistrate purports to accept as correct the story told by the accused in his examination except where he finds it to be clearly contradicted by reliable evidence. The practical result is that the statements made by Dick have been, accepted as true wherever they tell against him and have been rejected where he tried to justify his action on his own showing the appellant's conduct in connexion with this affair certainly does him no credit nor has he been always consistent; in his account of the matter. The position which I understand him to have finally taken up is somewhat as follows: As agent for Captain Castle he bad full authority to dispose of the mare Tigress to any purchaser provided he could secure a certain minimum price. Whether he intended the Court to understand that this minimum price was Rs. 500 or Rs. 600 I am not quite clear but, it was not less than Rs. 600. 3. He found that Captain Laing was prepared to give Rs. 800 for the mare and might possibly be induced to pay even more. Thereupon he purchased the mare himself for Rs. 600, and prepared to appropriate for his own benefit the difference between this price and any sum which he might induce Captain Laing to pay. When Captain Laing insisted that his offer of Rs. 800 should be communicated to Captain Castle it is obvious that Dick was placed in a difficulty. If the story told by him in Court is true it was useless communicating any such offer to Captain Castle because he was at the time himself the owner of the mare; yet one can well understand that he might feel considerable difficulty about admitting this fact to Captain Laing for reasons independent of his desire to force that gentleman up to the limit of the price he was prepared to offer. I cannot say that the statement made by the appellant, when examined as an accused person or any other evidence on the record really explains to my mind how Captain Castle was induced to send the telegram which is on the record as Ex. I cannot say that the statement made by the appellant, when examined as an accused person or any other evidence on the record really explains to my mind how Captain Castle was induced to send the telegram which is on the record as Ex. D. It is no part of the prosecution case that this telegram was a forgery or was not in fact dispatched from Meerut by Captain Castle. I have no doubt on the evidence that it was represented to Captain Laing as a refusal of his offer of Rs. 800, and that it was so understood by him. 4. These, so far as I am able to state them, are the essential facts of the case. It must be remembered that the appellant's conduct towards Captain Castle has not been made the subject-matter of complaint by the latter and has not been in issue at the present trial. Captian Laing's grievance appears essentially to be that if the mare Tigress was in fact the property of Captain Castle when he made his offer of Rs. 800, and if that offer had been communicated to Captain Castle, it would have been accepted by the latter; hence be feels that he was induced to raise his bid from Rs. 800 to Rs. 1,000 by unfair means. The prosecution however has proceeded on the assumption that the accused spoke the truth when he said that the ownership of the animal had passed from Captain Castle to himself. If so it is difficult to see what grievance Captain Laing has in the fact that an offer of Rs. 800 was not communicated to a person who was no longer the owner of the animal. The real reasons why Captain Laing had to pay the additional Rs. 200 were firstly that he thought the animal worth Rs. 1,000 and, secondly, that Mr. Dick, the owner of the said animal, was not prepared to accept an offer of Rs. 800 when he shrewdly suspected that the refusal of that offer would call forth a higher bid from Captain Laing. 5. I have hitherto considered the matter in its broad aspects. It may be worth while also to deal with it, so to speak, more technically, with reference to the actual terms of the charge and of the provisions of Ss. 5. I have hitherto considered the matter in its broad aspects. It may be worth while also to deal with it, so to speak, more technically, with reference to the actual terms of the charge and of the provisions of Ss. 415 and 420, I.P.C. Practically speaking there are two points set forth in the charge with reference to which Captain Laing is alleged to have been deceived. One is that the appellant, G.W. Dick, concealed from him the fact that he had himself become the owner of the mare “Tigress” and professed to be selling the animal, as agent for Captain Castle. I am prepared to discuss this point for the sake of argument, on the assumption that the appellant was speaking the truth when he said that he had become the owner of the animal by purchasing it himself under his general authority as agent for Captain Castle; but I wish it to be distinctly understood that there is no evidence on the record which proves this to be true but a certain amount of evidence calculated to throw doubt on the suggestion. I make these remarks in view of any action which Captain Castle may see fit to take in the matter hereafter. 6. Assuming however that the appellant G.W. Dick, in his dealings with Capain Laing, falsely represented Captain Castle to be the owner of the mare Tigress at a time when the true owner was G.W. Dick himself, this circumstance cannot be made the basis of a charge of cheating, in view of Captain Laing's express admission that it had no effect on the price offered or paid by him. He expressly deposed that he would have paid the same price if he had known that the animal belonged to G.W. Dick and not to Captain Castle. The other point in respect of which it is alleged that the deception was practised on Captain Laing is in connexion with the telegram, Ex. D, already referred to. No doubt Captain Laing was induced to believe that his offer of Rs. 800 had been communicated to Captain Castle and had been refused by the latter. The other point in respect of which it is alleged that the deception was practised on Captain Laing is in connexion with the telegram, Ex. D, already referred to. No doubt Captain Laing was induced to believe that his offer of Rs. 800 had been communicated to Captain Castle and had been refused by the latter. To my mind something more than this would have to be proved before a conviction could be affirmed under S. 415, to say nothing of the more aggravated S. 420, I.P.C. The definition in the former of these sections shows that in order to support a conviction the accused must be shown to have acted either fraudulently or dishonestly. In the absence of any evidence from Captain Castle I am certainly not prepared to find that the accused acted fraudulently in laying before Captain Laing a telegram which, it would appear, Captain Castle had sent him for the express purpose that it might be shown to some intending purchaser, if not to Captain Laing himself. The definition of the word “fraudulently,” contained in S. 25, I.P.C. does not carry one beyond the statement that “fraudulently” is equal to “with intent to defraud;” but in the present case, if Dick intended to defraud any one by his proceedings, it was Captain Castle and not Captain Laing. 7. If the appellant had been acting in a straightforward manner as agent of Captain Castle in this matter, he would have been perfectly justified in informing his principal that he had an offer of Rs. 800, but believed that he could get a higher offer still if he could produce a telegram suggesting that his principal would not accept this price and was not anxious to sell at all. The definition of “dishonestly” in the Penal Code refers one to the definition of the expressions “wrongful loss” and wrongful gain” in S. 23 of the same Code. Now I am certainly not prepared to hold that “wrongful loss” was caused to Captain Laing by reason of the fact that he was induced to bid up to what he considered the full value of the animal he desired to purchase; the only question therefore, would be whether “wrongful gain” was caused to the appellant G.W. Dick. Now I am certainly not prepared to hold that “wrongful loss” was caused to Captain Laing by reason of the fact that he was induced to bid up to what he considered the full value of the animal he desired to purchase; the only question therefore, would be whether “wrongful gain” was caused to the appellant G.W. Dick. Here again it becomes obvious that the essential criminality of the appellant's, conduct, if there was criminality, lay in his dealings towards Captain Castle and not in his dealings towards Captain Laing. In the absence therefore of Captain Castle's evidence I am not prepared to hold it proved that the appellant acted either “fraudulently” or “dishonestly” in connexion with his dealings with Captain Laing as set forth in the charge. 8. It has been matter for serious consideration with me since I heard arguments whether I should not direct the Court below to record and certify Captain Castle's evidence in the case. The record before me does not explain why the evidence of this important witness was not obtained even, if necessary, by the issue of a commission. It is not always possible or convenient for an appellate Court to use its powers under Section 423 of the Cr PC, to correct deficiencies in the inquiry conducted by the trial Court. The present is not a very convenient moment for insisting on the examination of an officer in the army, and I do not know what practical inconvenience I might cause by passing an order for Captain Castle's examination at this stage of the proceedings. If I were quite certain that the absence of his evidence has resulted in a failure of justice, I might perhaps have run this risk; but I cannot go further than entertaining a suspicion that Captain Castle's evidence might have thrown such light on the proceedings of the appellant as to have justified his conviction even upon the charge framed in this case. I feel no great certainty on this point; the possibility of a conviction would depend upon a highly technical view of the provisions of S. 415, I.P.C. The matter, as a whole, was one in which the person who really had ground for complaint was Captain Castle rather than Captain Laing, and if the former of these gentlemen has been badly used by the appellant, there would be nothing in the result of the present proceedings to debar him from seeking his remedy in the proper Court. 9. The result, therefore is that the conviction is not, in my opinion, maintainable on the evidence as it stands, and that after considering the possible result of an order requiring further evidence to be taken under Section 428 of the Cr PC, I am not satisfied that such an order is called for in the interests of justice. I accordingly accept this appeal, set aside the conviction and sentence in this case and acquit the appellant G.W. Dick of the offence charged. He appears to have been released on bail. His security will, therefore, be discharged and the fine, if paid, will be refunded.