Madras High Court
T.Rahul Anand vs Inspector Of Police on 27 July, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.4730 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.08.2022
DELIVERED ON : 11.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.4730 of 2022
and Crl.M.P.Nos.2478 & 4941 of 2022
T.Rahul Anand .. Petitioner
Vs.
1. Inspector of Police,
W-28, All Women Police Station,
Ambattur.
2. Nivadita Mariyal .. Respondents
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
seeking to call for the records in Crime No.2 of 2022 pending on the file of
the first respondent police and to quash the same.
For Petitioners : Mr.Ma.Gouthaman
for Mr.R.Krishnakumar
For Respondent 1 : Mr.E.Raj Thilak
Additional Public Prosecutor
For Respondent 2 : Mr.E.Omprakash
SC for Mrs.S.Deepika
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https://www.mhc.tn.gov.in/judis
1/20
Crl.O.P.No.4730 of 2022
ORDER
This petition has been filed seeking to quash the F.I.R. in Crime No.2 of 2022, on the file of the first respondent police, for the offences punishable under Sections 417, 420 and 506(1) of IPC.
2. The crux of the allegation in the FIR is that the defacto complainant / second respondent has joined as a pilot in Alliance Airline Limited. During the year 2011, while she was in training, she met the petitioner/accused who was also undergoing training for pilot and developed friendship. Thereafter, their friendship resulted in love affair and whenever she visited Chennai, the accused used to take her to various resorts and had sexual intercourse by making a promise that he will marry her. Thereafter, from the year 2013 to 2021 she was insisting the accused to marry her, for which, he has stated that he will visit her parents house and request them accordingly. On 28.08.2021, he came to her parents house with a marriage proposal and her parents also agreed for the marriage. It was also decided by both the families to conduct the marriage in the month of January, 2022 and they also conducted engagement reception on 04.09.2021. After that, the accused did not agree to the marriage and the family members of the accused https://www.mhc.tn.gov.in/judis 2/20 Crl.O.P.No.4730 of 2022 also did not agree to the marriage on the ground that she is not fitting into the status of the family of the petitioner. Hence, a complaint has been given to the first respondent police and the same was registered as Crime No.2 of 2022, for the offences punishable under Sections 417, 420 and 506(i) of IPC and now the same is sought to be quashed by the petitioner/accused.
3. The learned counsel appearing for the petitioner would submit that it is absolutely a false case and both of them were responsible for the love affair from the year 2011. The entire allegations in the FIR did not show that the defacto complainant has been deceived by the petitioner's on the promise of marriage, no deception has been played by the petitioner. The petitioner refused to marry the defacto complainant due to various other reasons and therefore the offences under Sections 417, 420 and 506(1) of IPC will not get attracted. It is his further contention that the petitioner and the defacto complainant developed friendship and thereafter they were having consensual sexual intercourse from the year 2011 to 2021. Merely, because the marriage proposal has broken, later on, criminal liability cannot be fastened and it is nothing but an abuse of process of law. In support of his submissions, the learned counsel relied on the following judgments:
(i) Pramod Suryabhan Pawar Vs. State of Maharashtra reported in https://www.mhc.tn.gov.in/judis 3/20 Crl.O.P.No.4730 of 2022 (2019) 9 SCC 608;
(ii) Sonu Vs. State of Uttar Pradesh reported in AIR 2021 SC 1405;
(iii) K.U.Prabhu Raj Vs. State reported in 2012-2-LW(Crl) 101;
(iv) Harish Raj Urs Vs. State of Karnataka reported in MANU/KA/0743/2019;
(v) Venkatesh Vs. State of Karnataka reported in MANU/KA/0067/2022;
(vi) Varun Kumar Vs. State reported in 2018(3) MLJ(Crl) 604 and
(vii) Mandar Deepak Pawar Vs. The State of Maharashtra in Crl.A.NO.442 of 2022 dated 27.07.2022.
4. Whereas, the learned senior counsel appearing for the defacto complainant would submit that the life of an innocent women has been shattered by the accused. From the year 2011 onwards, the accused has been deceiving the defacto complainant and he was having sexual relationship with her. There are disputes with regard to the financial transaction between them and the accused has also posted certain messages in his facebook and whatsapp and submitted that FIR has been rightly lodged and the investigation has just started and therefore at this stage, the same cannot be quashed. It is his further contention that there are various other allegations https://www.mhc.tn.gov.in/judis 4/20 Crl.O.P.No.4730 of 2022 which can be unearthed only during the course of investigation. He further submitted that even in the police station, the accused had agreed to marry the defacto complainant and thereafter refused to marry her, hence the learned senior counsel submitted that this case cannot be quashed merely on the ground that the accused had consensual relationship. The intention to deceive can be gathered only at the time of trial. Therefore, the learned senior counsel opposed the quashing of the FIR, at this stage. In support of his contentions, he relied on the following judgments:
(i) King Emperor Vs. Khawaja Nazir Ahmed reported in 1944 SC Online PC 29;
(ii) Madhukar Purshottam Mondkar Vs. Talab Haji Hussain reported in 1958 SCC Online Bom 1;
(iii) R.P.Kapur Vs. State of Punjab reported in (1960) 3 SCR 388;
(iv) Kurukshetra University Vs. State of Haryana reported in (1977) 4 SCC 451;
(v) State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335;
(vi) CBI Vs. Tapan Kumar Singh reported in (2003) 6 SCC 175;
(vii) Zandu Pharmaceutical Works Ltd., Vs. Mohd.Sharaful https://www.mhc.tn.gov.in/judis 5/20 Crl.O.P.No.4730 of 2022 Haque reported in (2005) 1 SCC 122;
(viii) Imtiyaz Ahmad Vs. State of U.P. reported in (2012) 2 SCC 688;
(ix) State of Telangana Vs. Habib Abdullah Jeelani reported in (2017) 2 SCC 779;
(x) Asian Resurfacing of Road Agency (P) Ltd., Vs. CBI reported in (2018) 16 SCC 2299;
(xi) Amish Devgan Vs. Union of India reported in (2021) 1 SCC 1;
(xii) Neeharika Infrastructure Pvt. Ltd., Vs. State of Maharashtra reported in 2021 SCC Online SC 315; and
(xiii) Ramachandran Vs. State of Kerala reported in 2022 SCC Online Ker 1652.
5. The learned Additional Public Prosecutor appearing for the first respondent police submitted that investigation is still going on and therefore oppose the quashing of the FIR, at this stage.
6. Heard the learned counsel on either side and also perused the materials available on record.
https://www.mhc.tn.gov.in/judis 6/20 Crl.O.P.No.4730 of 2022
7. Perusal of the FIR makes it very clear that both the petitioner and the defacto complainant were working as pilots and they developed friendship in the year 2011 and thereafter they were in consensual sexual relationship from 2011 to 2021. The complaint also indicate that several times they had consensual sexual intercourse, though it is stated that as the accused had promised to marry her, she agreed for such consensual sex and there is no valid consent for that. It is relevant to note that the very allegation in the FIR indicates that marriage has in fact been agreed by both sides and engagement reception also took place after fixing the marriage date and thereafter the parties fell apart due to various other reasons. From the FIR it could be seen that from the very beginning, there is no intention on the part of the petitioner to deceive the defacto complainant from marrying her. In fact, their relationship has culminated into engagement and both their family members have also agreed for the marriage. After their engagement reception, their relationship got strained for various other reasons. Therefore, it cannot be stated that deception has been played by the petitioner from the very inception.
8. It is relevant to note that the defacto complainant is a fully grown woman and working as a pilot and consented to sexual intercourse. https://www.mhc.tn.gov.in/judis 7/20 Crl.O.P.No.4730 of 2022 According to her, as the accused promised to marry her, she continued to indulge in such activities till the marriage proposal broke down. Therefore, in such a situation, it cannot be held that such consent would fall within the ambit of misconception of fact, when the person consensually engaged in the sexual intercourse and from the very beginning they developed relationship as husband and wife. Their facebook and whatsapp chats placed before this Court also shows that they were in fact treating themselves as husband and wife. They were exchanging love and were constantly engaged in sexual act knowing very well the consequences. Therefore, it cannot be said that deception has been played by the petitioner from the very inception to conclude that the consent was vitiated by a misconception of fact.
9. Therefore, mere breach of promise at a later point of time cannot be said to be a false promise to attract the offence. The allegations in the FIR clearly indicates that the allegation does not disclose that such promise was made in bad faith and with an intention to deceive the defacto complainant from the inception. The very fact that their relationship has culminated into marriage proposal and engagement was also conducted and thereafter the parties fell apart for the reasons best known to them. Such view of the matter, the offence of cheating under Sections 417 and 420 of IPC is not at https://www.mhc.tn.gov.in/judis 8/20 Crl.O.P.No.4730 of 2022 all attracted.
10. In this regard, it is relevant to rely upon the judgment of the Hon'ble Apex Court in Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608, wherein, in paragraphs 16, 21 and 23, the Hon'ble Supreme Court has held as follows:
"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.
***
21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the https://www.mhc.tn.gov.in/judis 9/20 Crl.O.P.No.4730 of 2022 intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant’s promise of marriage. Therefore, even if the facts set out in the complainant’s statements are accepted in totality, no offence under Section 375 of the IPC has occurred.
***
23. Without entering into a detailed analysis of the content of the WhatsApp messages sent by the appellant and the words alleged to have been spoken, it is apparent that none of the offences set out above are made out. The messages were not in public view, no assault occurred, nor was the appellant in such a position so as to https://www.mhc.tn.gov.in/judis 10/20 Crl.O.P.No.4730 of 2022 dominate the will of the complainant. Therefore, even if the allegations set out by the complainant with respect to the WhatsApp messages and words uttered are accepted on their face, no offence is made out under SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence establish the commission of the offences alleged."
11. The Hon'ble Supreme Court in Sonu Vs. State of Uttar Pradesh reported in AIR 2021 SC 1405 has held in paragraphs 9 and 11 as follows:
"9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:
“Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot https://www.mhc.tn.gov.in/judis 11/20 Crl.O.P.No.4730 of 2022 be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it...” ***
11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."
https://www.mhc.tn.gov.in/judis 12/20 Crl.O.P.No.4730 of 2022
12. The Hon'ble Karnataka High Court in Venkatesh and Ors Vs. State of Karnataka and Ors dated 13.01.2022 in Criminal Petition No.5865 of 2021 has held in paragraph 7 and 8 as follows:
"7. Learned counsel for the petitioners relied upon a Single Bench judgment of the High Court of Judicature at Madras, in the case of K.U.Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in 2012-3- L.W.770 wherein, the Court has held at paragraphs 16 and 17 as under:
"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 https://www.mhc.tn.gov.in/judis 13/20 Crl.O.P.No.4730 of 2022 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 https://www.mhc.tn.gov.in/judis 14/20 Crl.O.P.No.4730 of 2022 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 https://www.mhc.tn.gov.in/judis 15/20 Crl.O.P.No.4730 of 2022 in the records, in my considered 8 opinion, would not make out an offence under Section 417 or 420 I.P.C., at all."
8. The Hon'ble Supreme Court also has categorically held in the case of S.W.PALANITKAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241 at paragraph No.11 that mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed. Here in this case, petitioner No.1 is said to have promised to marry respondent No.2, but failed to marry her. In view of the judgment of the Hon'ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgment of High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract 9 Section 420 of IPC. This Court has held in Crl.R.P.No.233/2020 dated 24.02.2020 in the case of Sri.D.Ramesh Sinha Vs. State of Karnataka https://www.mhc.tn.gov.in/judis 16/20 Crl.O.P.No.4730 of 2022 that as a promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of IPC. Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed."
13. The Hon'ble Supreme Court in Mandar Deepak Pawar Vs. The State of Maharashtra in Criminal Appeal No.442 of 2022, dated 27.07.2022 has held as follows:
"The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when respondent No.2 decided to register a FIR.
We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled “Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.” where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage https://www.mhc.tn.gov.in/judis 17/20 Crl.O.P.No.4730 of 2022 which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860. The Criminal appeal is accordingly allowed."
14. Normally while exercising power under Section 482 of Cr.P.C., if there is a prima facie allegation and it discloses a cognizable offence, the Courts will not interfere with the F.I.R. but at the same time, the materials produced before this Court prima facie indicate that the F.I.R. is nothing but motivated and filed for some other purpose or maliciously instituted with an ulterior motive, the Court can very well interfere with such F.I.R. Considering the nature of the allegations set out in the FIR, and even if the entire FIR is taken into its face value, the same would not constitute any offence. Therefore, continuing of the FIR is nothing but an abuse of process of law and a futile exercise and it is nothing but harassment.
15. As already discussed, both were having affair for more than 10 years and knowingly they indulged in sexual act and there is no deception at all from the very inspection. In fact, there relationship has culminated into marriage proposal and engagement was also conducted. Thereafter, the https://www.mhc.tn.gov.in/judis 18/20 Crl.O.P.No.4730 of 2022 parties fell apart due to various other reasons. The materials produced before this Court like whatsapp and facebook chats clearly indicate that nothing can be inferred from the materials that deception has been played by the petitioner from the very inception. Further, the above judgments relied on by the learned senior counsel appearing for the defacto complainant will also not help the case of the defacto complainant.
16. Such view of the matter, the Criminal Original Petition is allowed and the FIR in Crime No.2 of 2022, pending on the file of the first respondent police stands quashed. Consequently, the connected miscellaneous petitions are closed.
11.08.2022 Index : Yes / No kk To
1. The Inspector of Police, W-28, All Women Police Station, Ambattur.
2. The Public Prosecutor, Madras High Court.
https://www.mhc.tn.gov.in/judis 19/20 Crl.O.P.No.4730 of 2022 N.SATHISH KUMAR, J.
kk PRE DELIVERY ORDER in Crl.O.P.No.4730 of 2022 and Crl.M.P.Nos.2478 & 4941 of 2022 RESERVED ON : 05.08.2022 DELIVERED ON : 11.08.2022 https://www.mhc.tn.gov.in/judis 20/20