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1. These are appeals by a certificate granted by the High Court of Allahabad. They arise out of the same trial. The appellants in both the appeals except Chandrika Singh were convicted by the Second Additional District & Sessions Judge, Kanpur, of offences under s. 471, Indian Penal Code read with ss. 467 and 468, I.P.C. and sentenced variously. Tulsi Ram, Beni Gopal and Babu Lal were each convicted of offences under s. 417 read with s. 420 and Moti Lal of offences under s. 417, I.P.C. and Lachhimi Narain of offences under s. 420, I.P.C. Separate sentences were awarded to each of them in respect of these offences. All the six appellants were, in addition, convicted under s. 120B, I.P.C. and sentenced separately in respect of that offence. In appeal the High Court set aside the conviction and sentences passed on Tulsi Ram, Beni Gopal, Babu Lal and Moti Lal of offences under s. 471 read with ss. 467 and 468, I.P.C. and also acquitted Moti Lal of the offence under s. 417, I.P.C. It, however, upheld the conviction of all the appellants under s. 120B, I.P.C. as well as the conviction of Tulsi Ram, Beni Gopal and Babu Lal of offences under s. 417 read with s. 420, I.P.C. As regard Lachhimi Narain it maintained the conviction and sentences passed by the Additional Sessions Judge in all respects and dismissed the appeal in toto. The relevant facts are as follows :

14. Since the commission of forgeries by Lachhimi Narain could not be denied what we have next to ascertain is whether Lachhimi Narain is guilty of cheating and if so whether s. 420, I.P.C. as held by the learned Additional Sessions Judge and the High Court or under s. 417, I.P.C. as contended before us. Learned counsel points out and rightly, that for a person to be convicted under s. 420, I.P.C. it has to be established not only that he has cheated someone but also that by doing so he has dishonestly induced the person who was cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of property to which the person gaining is not legally entitled. Learned counsel contended that there has been no wrongful loss whatsoever to the banks and the two firms which discounted the hundis drawn by one or the other of the firms owned by the family. The High Court has held that these firms did sustain a wrongful loss inasmuch as they got very meagre amounts for discounting the hundis whereas had the true facts been known to them they would not have discounted the hundis though they may have advance loans and charge interest at between 6 and 9% on the amounts advance. It was because of the fraudulent misrepresentation made to the banks and the firms that they lost what they could have otherwise been able to obtain and thus wrongful loss has been caused to them. We have been taken through a large number of documents on the record and it is clear from these documents that those who discounted the hundis in question were entitled to charge, apart from the discount charges, interest at 6% or above in case of non-payment within 24 hours of presentation. A reference to some of the exhibits 1440 to 1454 which are the debit vouchers of the Bank of Bikaner and Exs. 1330 to 1345 which are debit vouchers of the Bank of Bihar clearly show that in fact interest in the case of the first Bank at 6% and in the case of the second at 9% was charged, debited and realised by these banks from the firms in question for the entire period during which the hundis though presented, remained unpaid. These documents are only illustrative but they do indicate that in fact the banks were not deprived of interest. Learned counsel pointed out that the Managers and officers of the Banks and the firms were examined and they do not say that any loss of interest was caused to them in these transactions. Mr. Mathur who appears for the State, however, pointed out that in the nature of things the hundis could not be presented for payment in less than ten days and in this connection he referred to Exs. P. 1106 and 1055. These are records of bills purchased by the Central Bank of India, Kanpur. He referred us to the penultimate columns of these exhibits headed "date enquire on" and contended that this column contained the date of presentation. As an illustration he referred us to the first entry dated June 10. It was the date on which the hundi was discounted by the Central Bank of India and then he said that the date in the penultimate column is June 20 which means that the hundi was presented on June 20. According to him, therefore, for this period of ten days and for 24 hours thereafter the bank would have got only the discount charges and no interest. The hundi in question was realised on June 25 and, therefore, according to him all that the bank must have got was interest for four days. But it may be pointed out that the heading of the penultimate column has not been correctly reproduced in the paper book. We have been referred to the original and there the heading is "Date enquired". Bearing in mind this fact as well as the entry in the last column which is headed "non-payment advice sent" we think that what is stated in the penultimate column is not the date of presentation at all but some other date. Unfortunately there is no column in either of the documents to show the date of presentation. Therefore, these documents do not help the State at all. Apart from that we may mention that it was for the Bank to take care to see that there was no delay in the presentation of hundis and if they themselves delayed they had to take the consequences. Further, we may point out that if the Bank was not able to earn interest or earn only very little interest in these transactions for as long as ten days that would have been so in all the transactions, that is, not merely transactions which were supported by forged railway receipts but also transactions which were supported by genuine railway receipts. There is, therefore, no substance in the contention of Mr. Mathur.

19. The High Court has found that dishonesty has been established against Lachhimi Narain because it was he who drew and negotiated the various hundis. According to learned counsel the prosecution has not established that the other appellants had either drawn any hundi or discounted any hundi, this contention, however, does not appear to be sound because there is a finding of the learned Additional Sessions Judge that the appellant Tulsi Ram had sold to the Central Bank of India certain hundis covered by forged railway receipts. He has also found that the appellant Beni Gopal had admittedly booked a consignment of two bags of rape seed from Rae Bareli to Raniganj and drawn a hundi of Rs. 40,000/- on the basis of the railway receipt which was tampered with and subsequently got verified the stamped indemnity bond for this very consignment which was sent to the firm Chiranji Lal Ram Niwas for taking delivery. Another consignment of two bags, this time containing poppy seeds, was booked by the firm of Beni Gopal and Beni Gopal drew a hundi for Rs. 38,000/- on Murarka Brothers and sold that hundi to the Central Bank of India. This hundi was supported by a railway receipt which had been tampered with. It is on the basis of those findings that the learned Additional Sessions Judge convicted both these appellants for an offence under s. 417/420, I.P.C. The learned Additional Sessions Judge has also held that the appellants, Babu Lal and Moti Lal, were likewise guilty of offences under s. 417/420, I.P.C. The conviction and sentence passed on Moti Lal was set aside by the High Court. In our opinion the prosecution has failed to establish that Babu Lal had either drawn or negotiated hundis supported by forged railway receipts. The material upon which the learned Additional Sessions Judge has relied and, apparently, on which the High Court has relied, does not tough these matters at all. Whatever other part Babu Lal might have played in these transactions his actions do not bring home to him the charge under s. 420, I.P.C. For this reason his conviction and sentence for the offence of cheating must be set aside and we accordingly do so.

20. The High Court has affirmed the conviction of Tulsi Ram and Beni Gopal for offences under s. 417/420, I.P.C. As already indicated there is evidence to show that both these persons had taken part either in the drawing or in the negotiation of hundis which were supported by forged railway receipts. The evidence adverted to by the learned Additional Sessions Judge has not been challenged before us. We must, therefore, confirm the conviction of the appellants, Tulsi Ram and Beni Gopal, for the offence of cheating. We would, however, like to make it clear that having found that the acts fall under s. 420, I.P.C. it was not appropriate for the High Court to affirm the conviction under "s. 417/420", I.P.C. thus indicating that if the offence is not one it is the other.