Deep love, between a
grown up man and woman and exchange of promise for marital ties, broke down
irretrievably. Nothing was done on the promise. The woman calls him a cheat.
Whether it is cheating as defined in Section 415 I.P.C ? =
since neither an
offence under Section 417 I.P.C., nor an offence under Section 420 I.P.C., is
made out. Thus, in my considered opinion, as per the law laid down by the
Hon'ble Supreme Court, in State of Haryana v. Bhajan Lal AIR 1992 SC 604 the present case is liable to be quashed.
2012 ( Apr.Part )
http://judis.nic.in/judis_chennai/ filename=36609
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED .04.2012
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.OP No.1273 of 2011 and
M.P.Nos.1 & 2of 2011
K.U.Prabhu Raj .. Petitioner
Vs
1.State by
Sub Inspector of Police,
A.W.P.S Tambaram.
2.Mrs.S.Balagurunathan ..
Respondents
Prayer:- Criminal Original Petition filed under Section 482
Cr.P.C., to call for the records in C.C.No.937 of 2010 on the file of the
learned Judicial Magistrate No.1, Tambaram and quash the same.
For
Petitioner :Mr.A.Raghunathan, SC
for Mrs.S.Jayanthi
For R.1 :Mr.M.Maharaja,
Additional Public Prosecutor
For R.2 :Mr.J.Saravanavel
ORDER
Painful is it
to live in a friendless town; but for more painful is it to part from ones
lover. Thus speaks Thiruvalluvar in 1158 couplet of Thirukural:
,d[;dhJ
,dd;,y;Ch; thH;jy; mjdpDk;
,d[;dhJ
,dpahu;g; gpupt[
Deep love, between a
grown up man and woman and exchange of promise for marital ties, broke down
irretrievably. Nothing was done on the promise. The woman calls him a cheat.
Whether it is cheating as defined in Section 415 I.P.C ? Let this be resolved in this case.
2.The
petitioner is the sole accused in C.C.No.937 of 2010 on the file of the learned
Judicial Magistrate No.1, Tambaram. The second respondent is the defacto
complainant in this case. The said case has been instituted on a police report
submitted by the first respondent alleging that the petitioner has committed
offences punishable under Sections 417 and 420 I.P.C. Seeking to quash the
same, the petitioner is before this Court with this petition.
3.According
to the case of the prosecution, the daughter of the second respondent, by name
Vijayalakshmi, was employed in a private concern at Indira Nagar, Chennai. The
petitioner also joined duty in the said
concern during the month of May 2004. On account of their job, they started
moving closely, which ultimately developed in to a love for each other. It is
further alleged that the petitioner promised to marry her. In exchange of love
with each other, the petitioner and the daughter of the second respondent had
gone on trip to many amusement parks and other places. While so, the petitioner
wanted to go over to Singapore in search of a job. For this, the second
respondents daughter gave Rs.35,000/- to the petitioner. Finally, during the
month of January 2010, the second respondent came to know that the petitioner
had engaged for marriage with a different girl to be celebrated on 07.01.2010.
On knowing the same, alleging that his daughter had been cheated by the
petitioner, the second respondent preferred a complaint to the first respondent
police, on which, the present case in Crime No.3 of 2010 has been registered.
4.During the
course of investigation, the second respondents daughter, Ms.Vijayalakshmi, was
examined and she has made a statement about the love affair between her and the
petitioner and also the promise made by the petitioner to marry her. Four more
persons have also been examined, who have also spoken to about the same in
their respective statements. Based on
the above, the first respondent laid charge sheet.
5.It is the
contention of the learned Senior Counsel appearing for the petitioner, that
even assuming that the entire allegations of love affair and the promise made
by the petitioner to marry the daughter of the second respondent are true,
still, the same would not make out an offence of cheating at all, as it is
projected by the prosecution.
6.The learned
Senior Counsel has placed reliance on a judgment of a Division Bench of the
Calcutta High Court in Abhoy Pradhan v. State of W.B (1999 Cr.L.J 3534). That
was a case where the accused was convicted for offence under Sections 376 and
420 I.P.C., on the allegation that under the promise of marriage, the accused
had sexual intercourse with the victim. The Division Bench while acquitting the
accused in the said case, has held that the mere promise to marry and later on
withdrawing the said promise will not amount to an offence of cheating as
defined in Section 415 I.P.C. In the said judgment, the Division Bench has held
as follows:-
16.We find
from the complaint as well as from the evidence on record that the appellant
sincerely wanted to marry the complainant. When he proposed to marry the
complainant, his parents assaulted him and drove him out from their house. From
these facts, we are unable to hold that appellant made any false
promise/representation/assurance to the complainant with knowledge that such
promise/representation/assurance was false in any manner. On the contrary we
find that it is the specific case of the complainant as stated by her in her
complaint as well as in her deposition that the appellant was all through
serious and sincere to marry the complainant. This subsequent failure to marry
the complainant does not prove that when he made such promise/representation/
assurance were false. Otherwise, the very distinction between ordinary breach
of promise/contract and the offence of cheating would disappear. We are,
therefore, of the firm opinion that the facts attributed to the appellant do
not amount to any attempt to create any false conception of facts in the mind
of the complainant or that the appellant at that time had any intention to
deceive the complainant. In view of the aforesaid clear admissions made by the
complainant in most unambiguous terms in her complaint as well as in her
deposition, we are constrained to hold that appellant never practiced any
deception upon the complainant nor did he make any attempt to create some false
conception of facts in a mind of the complainant. This being so, we have
absolutely no hesitation in our mind to hold that the appellant neither
committed the offence of rape nor any offence of cheating as defined in
Sections 375 and 420 I.P.C., respectively.
7.The learned
Senior Counsel appearing for the petitioner nextly relies on a judgment of this
Court in Gopu Seshasayee v. State (1977 TNLJ 510) wherein, this Court has held
as follows:-
.......Mere
deception is not a criminal offence. Mere dishonesty is also not a criminal
offence. There are two elements in the offence of cheating, namely deception or
dishonest intention to do or omit to do something....
8.The learned
Senior Counsel would further rely on a judgment of the Hon'ble Supreme Court in
G.V.Rao v. L.H.V Prasad and others (2000 93) SCC 693) wherein, in paragraph
Nos.7 and 8, it has been held as follows:-
7.As
mentioned above, Section 415 has two parts. While in the first part, the person
must dishonestly or fraudulently induce the complainant to deliver any
property; in the second part, the person should intentionally induce the
complainant to do or omit to do a thing. That is to say, in the first part,
inducement must be dishonest or fraudulent. In the second part, the inducement
should be intentional. As observed by this Court in jaswantrai Manilal Akhaney
v. State of Bombay a guilty intention is
an essential ingredient of the offence of cheating. IN order, therefore,
to secure conviction of a person for the offence of cheating, mens rea on the
part of that person, must be established. It was also observed in Mahedeo
Prasad v. State of W.B that in order to constitute the offence of cheating, the
intention to deceive should be in existence at the time when the inducement was
offered.
8.Thus, so
far as the second part of Section 415 is concerned, property, at no stage, is
involved. Here it is the doing of an act or omission to do an act by the
complainant, as a result of intentional inducement by the accused, which is
material. Such inducement should result in the doing of an act or omission to
do an act as a result of which the person concerned should have suffered or was
likely to suffer damage or harm in body, mind reputation or property.
9.Applying
the above principles to the facts of the present case, according to the learned
Senior Counsel, this case is liable to be quashed. According to him, allowing
the case to be proceeded with further would be a wastage of valuable time of
the trial Court.
10.But the
learned Counsel for the second respondent would stoutly oppose this petition.
According to him, when the petitioner has got an alternative remedy of filing a
petition for discharge before the trial Court, it is not open for him to
approach this Court under Section 482 Cr.P.C. The learned counsel would further
submit that at the first time, when the petitioner expressed his love to the
daughter of the second respondent and promised to marry her, whether he had any
intention to deceive her or not, is a matter to be appreciated on the basis of
evidence to be let in only at the time of trial.
11.The
learned counsel for the second respondent would rely on a judgment of this
Court in Ravichandran v. Mariammal (1992 Crl.L.J 1675) . That was a case where
the accused made a representation in the shape of promise that he would marry
her in due course and made her to accept his request for sharing bed together
and accordingly, they shared the bed which resulted in pregnancy. When the
pregnancy came to light, the accused declined to marry her. The accused was
prosecuted for offence of cheating punishable under Section 417 I.P.C. Seeking
to quash the said proceeding, the accused had approached this Court under
Section 482 Cr.P.C. While dismissing the said petition, in paragraph No.8 of
the order, this Court has held as follows:-
8.The
averments in the complaint, do prima facie, point out false representation said
to have been made by the petitioner, in the sense of himself making a promise
to marry her, and believing such a promise, the respondent succumbed to his
carnal desire, in the sense of sharing her bed with him at his request. But for
the representation so made and the deception practiced on her, she would not
have been a party for sharing her bed with the petitioner, on the relevant
date, which is said to have resulted in her becoming pregnant. The allegations
as stated in the complaint do prima facie, establish an offence under S.417
I.P.C., requiring him to undergo the ordeal of trial. Further, the Court below
has already examined 8 witnesses after taking the complaint on file with
subjective satisfaction that a prima facie had been established against the
petitioner.
12.The
learned counsel for the second respondent, nextly, relies on a judgment of this
Court in Chitra v. Ravikumar and another (2002 (4) CTC 683). That was also a
similar case of promise; sharing bed; then the victim became pregnant and
thereafter the accused declined to marry the victim. The accused was convicted
under Section 471 I.P.C., in the said case. In paragraph No.10 of the said
judgment, this Court has held as follows:-
10.It is
settled law, as laid down by this Court as well as Supreme Court that if on
false promise, assuring marriage, the victim shared bed with an accused, as a
result of which, the victim became pregnant, and subsequently, the accused did
not keep up his promise, then, it would attract the offence under Section 417
of I.P.C. If there are materials to show that at the time of sharing the bed,
the accused did not have the intention to marry the victim and he made the
false promise, then the offence under Section 417 I.P.C., is clearly made out.
13.The
learned counsel for the second respondent would further submit that in the
instant case, the petitioner had no intention to marry the daughter of the
second respondent but, by playing deception upon the daughter of the second
respondent, he made such a false promise, which, according to him, clearly
makes out an offence punishable under Section 417 I.P.C.
14.I have
considered the above submissions.
15.Before
going into the judgments relied on by the learned counsel on either side, let
us have a look into Section 415 Cr.P.C., which reads as follows:-
415. Cheating
Whoever, by deceiving any person, fraudulently or
dishonestly 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 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".
16.A cursory
perusal of the above provision would make it clear that there are atleast three
essential ingredients constituting an offence of cheating which should be made
out from the materials available on record. They are as follows:-
(1)Deception
of any person;
(2)
Fraudulently or dishonestly inducing that person
(i)to deliver
any property to any person or;
(ii) to
consent that any person shall retain any property, or and
(3)
Intentionally inducing that person 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.
17.The
learned counsel for the second respondent would further submit that the offence
involved in this case falls within the ambit of the third limb of Section 415
I.P.C as enumerated above. According to the learned counsel, but for the
promise made by the petitioner, the daughter of the second respondent would
have married someone-else and settled down in her life. Thus, according to him,
the petitioner has committed a clear offence of cheating. In my considered
opinion, it is not so. As has been held by the Division Bench of the Calcutta
High Court in Abhoy Pradhan v. State of
W.B case (cited supra), mere promise to
marry and later on withdrawing the said promise will not amount to an offence
of cheating at all. On such false promise to marry, the person to whom such
promise was made should have done or omitted to do something that he would not
done or omitted to do but for the deception. In this case, absolutely, there
are no materials available on record to show that because of the promise made
by the petitioner, the daughter of the second respondent has done anything or
omitted to do something which has the tendency to cause damage or harm to the
body or mind or reputation or property of the daughter of the second
respondent. In the absence of the same, the entire allegations found in the
records, in my considered opinion, would not make out an offence under Section
417 or 420 I.P.C., at all.
18.In G.V.Rao v. L.H.V Prasad and otherss case,
(cited supra), the Hon'ble Supreme Court has held that there should have been
inducement, either dishonestly or fraudulently, and because of such inducement,
the person induced should have done or omitted to do something which she would
not have otherwise done or omitted to do. As I have already stated, in this
case, absolutely there is no such material on record to satisfy the above
requirement.
19.Now
turning back to the judgment in Gopu
Seshasayee v. State case (cited supra), this Court has reiterated that mere
deception is not a criminal offence. Mere dishonestly is also not a criminal
offence. This Court has held that there are two elements in the offence of
cheating, namely deception or dishonest intention to do or omit to do
something. This judgment also reaffirms the view which I have taken herein
before.
20.Now coming
to the judgments of this Court in Ravichandran case and Chitra case (cited supra), in those
cases, acting on the false promise made by the accused, the victim allowed the
accused to exploit her sexually which resulted in pregnancy. Thereafter, the
accused declined to marry. In those circumstances, this Court held that the
victim girl had allowed her to be exploited sexually because of the false
promise made by the accused. But in the instant case, the daughter of the
second respondent did not do anything out of inducement made by the petitioner
to marry her. In such view of the matter, the said judgments are not at all
applicable to the facts of the present case.
21.Now coming
to the maintainability of this petition, it is ofcourse, true that when there
is alternative remedy of filing a petition available for the petitioner, this
Court keep restrained and declined to invoke the power of this Court under
Section 482 Cr.P.C., but there is no absolute bar to invoke the inherent power
of this Court (vide the judgment of the Hon'ble Supreme Court in Punjab State
Warehousing Corporation Ltd., v. Durgaji Traders (2012(2) MLJ Crl. 200
(SC). In a rare case, when it is made
clear that the prosecution is absolutely baseless, it is for this Court to
invoke its inherent jurisdiction. In this case, as I have already stated,
absolutely there is no material available on record for allowing the
prosecution to go further, since neither
an offence under Section 417 I.P.C., nor an offence under Section 420 I.P.C.,
is made out. Thus, in my considered opinion, as per the law laid down by the
Hon'ble Supreme Court, in State of Haryana v. Bhajan Lal AIR 1992 SC 604 the present case is liable to be quashed.
22.In the
result, the Criminal Original Petition is allowed and the case in in C.C.No.937
of 2010 on the file of the learned Judicial Magistrate No.1, Tambaram, is
quashed.
.04.2012
jbm
S.NAGAMUTHU,J
jbm
Index: Yes
Internet: Yes
To
1.The Sub Inspector of Police,
A.W.P.S Tambaram.
2.The Public Prosecutor,
High Court, Madras.
Pre Delivery Order made in
Crl.OP No.1273 of 2012
.04.2012
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