Gauhati High Court
Crl.Pet./69/2012 on 4 June, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010218942012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Criminal Petition 69/2012
Smti Anamika Boro
W/o Sri Bhabajit Brahma
R/o Village-Jalukbari, Ward No. 2
Tangla, P.S. Tangla,
District- Udalguri, Assam
............ Petitioner
Vs
1) The State of Assam
2) Sri Anup Kumar Brahma
S/o Late Rakendra Kumar Brahma
R/o Hadam Para, Kokrajhar Town
Ward No. 8, P.O. Kokrajhar,
BTAD, Assam, Pin 783370
...................Respondents
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
Advocate for the Petitioner
Mr. S. Chauhan
Advocate for the State Respondent no. 1
Ms. S. Jahan, Additional Public Prosecutor
Date of hearing and judgment
4th Day of June, 2020
Page No.# 2/7
JUDGMENT
This criminal petition under Section 482, Code of Criminal Procedure, 1973 ('the Code' and/or 'the CrPC', for short) has been preferred seeking setting aside and quashment of the criminal proceeding of Complaint Case no. C.R. 2059 C/2011, presently pending before the Court of learned Sub-Divisional Judicial Magistrate (Sadar), Kokrajhar ('the trial court', for short) and the order dated 27.12.2011 whereby the learned trial court had taken cognizance and issued process against the petitioner to stand the trial for the offence punishable under Section 417, Indian Penal Code (IPC).
2) When the case was listed on 01.06.2020 last, Mr. S. Chauhan, learned counsel for the petitioner and Ms. S. Jahan, learned Additional Public Prosecutor for the respondent no. 1, State of Assam were heard in part. Notice was duly served on the respondent no. 2 and accordingly, the respondent no. 2 had entered appearance through learned engaged counsel. When the matter was taken up on 01.06.2020, none had appeared on behalf of the respondent no. 2 on that occasion. In view of non-representation on behalf of the respondent no. 2 on 01.06.2020, the case was ordered to be posted today so as to give a further opportunity to the respondent no. 2 to represent his case. It was observed that in the event of non-representation on behalf of the respondent no. 2 on the next date, the case would be considered on merit with reference to the materials on record. Today also, none has appeared on behalf of the respondent no. 2 on call. Accordingly, the case is taken up for final disposal.
3) I have heard learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent no. 2, State of Assam today. I have also perused the materials available in the record of Complaint Case no. C.R. 2059C/2011.
4) The respondent no. 2 as the complainant (hereinafter also referred to as 'the complainant', at places, for easy reference) had instituted the complaint before the Court of learned Chief Judicial Magistrate, Kokrajhar on 27.12.2011. On receipt of the said complaint, it was registered and numbered as Complaint Case no. C.R. 2059 C/2011. Thereafter, the complaint case was transferred to the Court of learned Sub-Divisional Judicial Magistrate (Sadar), Kokrajhar for disposal. On receipt of the case record, the learned trial court examined the complainant under Section 200, CrPC. Finding sufficient materials to proceed against the petitioner as the accused (hereinafter also referred to as 'the accused', at places, for easy reference) for the offence under Section 417, IPC, process was issued to the accused to stand the trial. Aggrieved by the criminal prosecution instituted against the petitioner as the accused in Complaint Case no. C.R. 2059 C/2011 and the order dated 27.12.2011 taking cognizance, this criminal petition has been filed seeking reliefs, as indicated above.
5) In the complaint, the complainant had arrayed 3 (three) persons as accused. The accused-petitioner was arrayed as accused no. 1, whereas the father and the mother of the petitioner were arrayed as accused no. 2 and the accused no. 3 respectively. The trial court, however, did not find sufficient materials to proceed against the accused no. 2 and the Page No.# 3/7 accused no. 3. Thus, it is the accused no. 1 i.e. the petitioner against whom process was issued by the learned trial court to stand the trial as the sole accused.
6) The case projected on behalf of the complainant can be stated as follows:
6.1) The complainant is a Class-I Gazetted Government Servant. He stated that he had been in love with the accused for many years and in course of time, good relationship developed between him and the family members of the accused. The accused used to visit the house of the complainant and they developed intimacy to an extent. The parents of the accused came to know about the relationship between the complainant and the accused but they had never raised any objection. During their relationship, the complainant presented many gifts to the accused and he also used to transfer money in her account. On 30.09.2011, a brother and few relatives of the complainant went to the parental house of the accused to settle the marriage of the complainant with the accused and it was mutually agreed that on 16.10.2011, the members from the family of the accused would visit the house of the complainant. After a discussion held between the parties thereafter, it was mutually agreed to solemnize the marriage and accordingly, necessary arrangements were made for solemnization of the marriage at a temple in Guwahati on 11.12.2011. A reception was also arranged by the complainant at Kokrajhar on 12.12.2011. The accusation of the complainant is to the effect that when he and his relatives and friends reached the venue of marriage in Guwahati on 11.12.2011, he found to his surprise that neither the accused who was the bride, was present nor her family members were present at the place. The complainant was informed by the parents of the accused that the accused had eloped with one Bhabajit Brahma and thereafter, they got married. Alleging criminal conspiracy, cheating and criminal breach of trust, the complainant had filed the complaint to proceed against the accused i.e. the petitioner and her parents under Sections 120B/406/420, IPC.
7) The learned counsel for the petitioner has submitted that even if the entire accusations made in the complaint are read and accepted as true, no case of cheating is made out. He has further submitted that there was no fraudulent or dishonest intention on the part of the accused to cheat the complainant. Thus, it is a fit case to quash the criminal proceeding instituted against the accused-petitioner. The learned Additional Public Prosecutor has submitted that only issue which is required to be decided is whether there was fraudulent or dishonest intention on the part of the accused from the inception.
8) The case of the complainant is that the accused had cheated him and thereby, dishonestly induced him to go ahead with the arrangement of the marriage for its solemnization on 11.12.2011 and acting on such assurance, he had gone ahead to make all the arrangements and spent huge amounts but on the date fixed for marriage, the accused had eloped with another person, thus, leaving him in the lurch which had damaged his reputation.
9) The only issue that is to be considered is as to whether a case of cheating is made out against the accused. The inherent jurisdiction of the Court is to be exercised under three circumstances viz. (i) to give effect to an order under the Code, (ii) to prevent abuse of the Page No.# 4/7 process of the Court, and (iii) to otherwise secure the ends of justice. While exercising inherent powers under the Section, the Court does not function as a Court of appeal or revision. It is settled that the inherent jurisdiction is to be exercised with caution and only in an appropriate and exceptional case. In exercise of the powers preserved under Section 482, CrPC, the Court would be justified to quash a criminal prosecution if it reaches an opinion that initiation and/or continuance of the criminal prosecution would amount to abuse of the process of the court or quashing of the criminal prosecution would otherwise serve ends of justice. It is true that inherent powers should not be exercised to stifle a legitimate prosecution. On the other hand, if the initiation of the criminal prosecution is found to be devoid of any merit, the Court can to interdict such criminal prosecution in exercise of the inherent powers under Section 482 of the Code. It is settled that the inherent powers under Section 482 of the Code can be exercised in an appropriate case where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
10) On reading of the complaint of the case in hand in its entirety, it shows that the complainant had stated that he had been in love with the accused for many years. Conspicuously, it has not been averred that the accused was also in love with the complainant. The complainant had, however, stated that the relationship between them had grown and the parents of the accused did not express any objection in that connection. On 30.09.2011, a brother and some relatives of the complainant went to the house of the accused to settle the marriage with the accused with the complainant and it was mutually agreed between the two families that on 16.10.2011, the members from the family of the accused and their relatives would visit the house of the complainant for finalizing the date of marriage between the complainant and the accused. The father of the accused along with some of their relatives paid visit to the house of the complainant thereafter and it is averred that an agreement was entered into between the father of the accused and the mother of the complainant on that day and it was decided that the marriage would be solemnized at a temple in Guwahati on 11.12.2011. Pursuant to the said agreement, the complainant started making arrangements for the marriage ceremony on 11.12.2011 and also for a marriage reception at Kokrajhar on 12.12.2011. As part of such preparation, the complainant had printed invitation cards for the marriage ceremony. The parents of the accused also printed invitation cards for the marriage. On the scheduled date of the marriage i.e. on 11.12.2011, the complainant along with his relatives and friends arrived at the temple in Guwahati. On such arrival, the complainant found that neither the accused was present nor any members from the family member of the accused were present at the temple. Then he contacted the father of the accused over phone and the father of the accused invited the complainant and his relatives to the native village of the accused in Udalguri district to inform about the reason of their non-arrival at the temple on that day. Accordingly, the complainant and his relatives Page No.# 5/7 went to the parental house of the accused. The father of the accused then informed the complainant that the accused had been missing since the morning of the previous day i.e. 10.12.2011 and the parents of the accused begged apology in writing from the guardian of the complainant for the breach of the agreement of marriage. The father of the accused informed the complainant after a week that the accused had been traced and it was found that the accused had eloped with one Bhabajit Brahma and tied the nuptial knot with him. Having come to know about such elopement and marriage of the accused with another person, the complainant called the parents of the accused to discuss about the return of the gifts and other articles given to the family of the accused in connection with the proposed marriage. Alleging commission of cheating etc. on the basis of the aforesaid accusations, the complainant had filed the complaint.
11) The offence of cheating has been defined in Section 415, IPC and it 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 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.
12) It is settled that the ingredients in order to constitute the offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. There is a distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement which can sometimes be judged by his subsequent conduct but the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to be committed. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. Thus, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
13) On a close perusal of the averments and accusations made in the complaint indicates that the consent of the accused for the marriage arranged had not been expressly taken. Reference is made to the execution of an agreement on 16.10.2011 between the father of the Page No.# 6/7 accused and the mother of the complainant. On 16.10.2011, the accused did not visit with her father and other relatives to the house of the complainant. The version of the parents of the accused, as per the complainant, was that they had no knowledge that she would flee from the house. It is true that by her elopement just a day before the date of the scheduled marriage arranged by the two families, she had wronged all the concerned parties, including the complainant and her parents.
14) The question is whether such breach of promise, if any, on the part of the accused would amount to an offence of cheating. It is not the case of the complainant that the accused in express terms had said to him that she would enter into a marital relationship with him. There is no specific averment in the complaint or in the statement of the complainant recorded under Section 200, CrPC that the accused had in express terms consented to the marriage. Thus, it is not possible to assume that there was consent on her part to enter into the marriage with the complainant.
15) From the averments made in the complaint, it is evident that the complainant was a suitor of the complainant. As per the complainant himself, it was the parents of the accused who in consultation with the complainant, had decided to arrange for the marriage of the accused. It cannot also be said that the accused was not aware of the arrangements made in respect of the proposed wedding as the arrangements for the marriage was going on after the date was finalized. As the arrangements for the marriage was going on, the complainant was under the belief that he was the fiancé of the accused. But it could be a situation that even from a prior date the accused was in a relationship with the other person with the intention to marry him and when the arrangements were going on for the proposed wedding, she was already going steady with the other person. It could be the parental pressure for which she had initially agreed to enter into the marriage with the hope that she would be able to persuade her parents to agree for her marriage with the other person in the meantime. Thereafter when the decisive moment was about to arrive the accused had chosen to elope and get married with her beloved with whom she was already in love, in preference to the complainant who had arranged the marriage in discussion with her parents. Her decisive decision on that day prior to the proposed wedding might be in anticipation that she would be more happy with her beloved in her future life rather than to enter into the marriage with the complainant.
16) Thus, having taken all these facts and circumstances into consideration, it cannot be said that the breach of promise, if there was any, on the part of the accused in the case in hand would amount to cheating. To constitute cheating fraud or deception ought to be present since the inception. The complainant has failed to indicate that he had been fraudulently of dishonestly induced by the accused to enter into the proposed matrimony. There was no apparent inducement on her part to the complainant for solemnization of the marriage with her. Breach of promise cannot be said to be a cheating at all times though such breach sometimes causes loss to the victim. If the allegations made by the complainant are accepted as true, the actions on the part of the accused and her parents might have caused not only monetary loss but also damage to the reputation of the complainant. For such acts of the accused and her parents they might be liable under the civil law. But that cannot be the basis of criminal prosecution for the offence of cheating.
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17) In view of the discussions made above, this Court is of the considered view that no offence of cheating punishable under Section 417, IPC can be said to have been disclosed against the accused-petitioner and the criminal prosecution for the offence of cheating on the basis of the averments and accusations made in the complaint is not sustainable. In such view of the matter, the continuance of the criminal prosecution of Complaint Case no. C.R. 2059C/2011 against the accused-petitioner would amount to an abuse of the process of the court and accordingly, the criminal proceeding of Complaint Case no. C.R. 2059 C/2011, presently pending before the learned Sub-Divisional Judicial Magistrate (Sadar), Kokrajhar; and the order dated 27.12.2011 taking cognizance of the offence are set aside and quashed. Resultantly, this criminal petition stands allowed. There shall, however, be no order as to cost.
JUDGE Comparing Assistant