Andhra Pradesh High Court - Amravati
Kancharana Venkatesh, vs The State Of A.P. on 13 March, 2019
Author: T. Rajani
Bench: T. Rajani
HIGH COURT OF ANDHRA PRADESH
WEDNESDAY, THE THIRTEENTH DAY OF MARCH feeb See
TWO THOUSAND AND NINETEEN ; : Ss
PRESENT
THE HONOURABLE SMT JUSTICE T. RAJANI
CRIMINAL REVISION CASE NO: 3550 OF 2018
(Criminal Revision Case under Sections 397 & 401 of Cr.P.C. against the Order
made in Crh M.P.No.1466/26018 in CC No. 1O5/2017 dated 13-07-2018 on the file of the
court of the Judicial First Class Magistrate, Amudalavalasa.)
Between:
Kancharana Venkatesh, S/o. Madhava Rao
..Petitioner/Respondent
AND
The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Andhra
Pradesh, Amaravati.
..mespondent/Complainant
[A NO: 2 OF 2018
Petition under Section 482 of CrP.C. praying that in the circumstances stated
in the Memorandum of Grounds of Criminal Revision Case, the High Court may be
pleased to grant stay all further proceedings in C.C.No.105/2017 an the file of the
Court of the Judicial First Class Magistrate, Amadalavaga, pending the Criminal
Revision Case.
Counsel for the Petitioner: SRIERAJA REDDY KONETI
Counsel for the Respondent: PUBLIC PROSECUTOR
The Court made the following: ORDER
SMT JUSTICE T. RAJANI
: CRIMINAL REVISION CASE No.3550 of 2018
- ORDER: -
This revision is preferred questioning the order, dated
13.07.2018 passed in Cri.M.P.No.1466 of 2018 In C.C.No.105 of
2017 on the file of the court of Judicial Magistrate of First Class,
Amudalavalasa, by virtue of which the lower court dismissed the
petition, which was filed by the petitioner seeking for discharge
of the petitioner,
2. Heard the counsel for the petitioner and the Public
Prosecutor appearing for the respondent.
3. The facts of the case, as reflected in the statement of the
de facto complainant, the copy of which fs filed by the counsel
for the petitioner, are that the petitioner and the complainant fell
in Jove. The petitioner promised to marry the complainant and,
as such, took her to several places like Kakinada and Vizag and
had sexual relations with her. Six months back the petitioner
secured a job in Canara Bank, Orissa. After securing the job
also, he had sexual relations with the de facto complainant by
threatening her that he would commit suicide, if she does not
come to his place. When she requested the petitioner to marry
her, he expressed that anyone would give Rs.50 lakhs as dowry
to him at present and saying so, he necked her out from his
room. She returned to the village and also deliberated in the
presence of elders and the petitioner pleaded ignorance,
The mother of the petitioner also abused the de facto
ho
complainant, Supporting the statement of the de facto
complainant, the statements of her parents are also recorded,
A, The counsel for the petitioner, by relying on a judgment of
the Supreme Court passed in Cri.A.No.1443 of 2018 between
DR.DHRUVARAM MURLIDHAR SONAR VS. THE STATE OF
MAHARASHTRA & ORS., contends that there was consent on
the part of the de facto complainant and hence, the sexual
contacts between the de facto complainant and the petitioner
cannot be termed as rape. Even the complaint does not make an
allegation that she was raped by the petitioner. Her statement is
only to the effect that after securing job and after continuing
sexual relations with her, the petitioner refused to marry her
saying that he would get Rs.50 lakhs of dowry, which she terms
to be an act of cheating. The case was registered for the
offences under Sections 417 and 420 IPC.
5. The counsel for the petitioner submits that Section 420 IPC
does not get attracted as there is no inducement to deliver the
property. For ready reference, Section 420 IPC is extracted
hereunder, which reads as follows:
"Sec. 420; Cheating and dishonestly inducing delivery of
property: -
Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any
person, or to make, alter or destroy the whole or any part
of a valuable security, or anything which is signed or
sealed, and which is capable of being converted into a
valuable security, shall be punished with imprisonment of
either description for a terrn which may extend to seven
years, and shall also be ijable ta fine."
aed
G. The contention that Section 420 IPC does not get attracted
to the facts of the case has to be accepted as there is absolutely
no inducement made by the petitioner to deliver any property of
the de facto complainant and there is absolutely no allegation
attracting any of the ingredients of Section 420 IPC. ,
7. So far as Section 417 IPC is concerned, it prescribes
punishment for cheating, which is defined under Section 415
IPC. Section 415 reads as follows:
"Sec.415, Cheating: -
Whoever, by deceiving any person, fraudulently or
dishanestly induces the person so deceived to deliver any
property ta any person, or to consent that any person
shall retain any property, or intentionally induces the
person so deceived to do or omit ta da 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
ap og?
property, is sald to "cheat".
8. The facts of the case would reveal that the de facto
complainant had sexual relations with the petitioner only on his
promise to marry her. The Supreme Court In the afore cited
judgment considered various judgments passed by it earlier and
ultimately quashed the proceedings against the accused in the
case dealt with by the Supreme Court, the facts of which are
totally different from the facts of this case. Section 90 IPC
defines consent, which reads as follows:
"GQ. Consent known to be given under fear or
misconception: -
A consent is not such a consent as it intended by
any section of this Code, if the consent is given by a
persan under fear of injury, or under a misconception of
fact, and if the person doing the act knows, or has reason
to believe, that the consent was given in consequence of
such fear or misconception; or Consent of insane
person.--if the consent is given by a person wha, from
unsoundness of mind, or intoxication, is unable to
understand the nature and consequence of that to which
he gives his consent; or Consent of child.--unless the
contrary appears from the context, if the consent is given
by @ person who is under twelve years of age."
9, The Supreme Court observed that if the consent is given
by the complainant under misconception of fact, it is vitlated and
consent for the purpose of Section 375 IPC, requires voluntary
participation not only after the exercise of intelligence based on
the knowledge of the significance and moral quality of the act,
but also after having fully exercised the choice between
resistance and assent. It also observed that whether there was
any consent or not is to be ascertained only on a careful study of
all relevant circumstances. Hence, consent, which is given under
misconception of fact, is held not to be consent within the
meaning of Section 90 IPC.
10. In UDAY V. STATE OF KARNATAKA! the Supreme Court
dealt with a case where the prosecutrix, who was aged 19 years,
had given consent to sexual intercourse with the accused with
whom she was deeply in love, on a promise that he would marry
her on a fater date. The complaint was lodged on failure of the
accused to marry her. It was held that consent cannot be said to
be given.under a 'misconception of fact. In the said case,
the prosecutrix was @ grown up girl studying in a college. She
1 (2003) 4 SCC 46
>
was aware of the fact that since they belonged to different
castes, marriage was not possible, In those circumstances,
the court held that the girl has freely exercised a choice between
resistance and assent and = she must have known the
consequences of the act, particularly when she was conscious af
the fact that their marriage may not take place at all on account
of caste considerations. The caste consideration is am aspect,
which may come as an objection from the families of the couple.
But if the boy takes an objection based on the caste after having
sexual relation with the girl, it cannot be treated on par with he
failing to keep up his promise due to the caste consideration
coming up as an issue from his family members.
ii. Another ruling of the Supreme Court reported DEELIP
SINGH @ DILIP KUMAR V. STATE OF BIHAR? is a case for
which promise of marriage had to fail due to the father of the
accused taking him out of the village to thwart the bid to marry.
In such circumstances, the court held that it is a breach of
promise to marry rather than a case of false promise to marry,
for which the accused is prima facie accountable for damages
under civil law. It was further held that the accused did hold out
the promise to marry her and that was the predominant reason
for the victim giri to agree to the sexual intimacy with him.
But the court found that there was no evidence which gave rise
to an inference beyond reasonable doubt, that the accused had
no intention to marry her at all from the inception and that the
£2005) 1 SCC 88
6
promise he made was false to his knowledge. It also observed
that the statement of PW12 showed that later on the accused
became ready to marry her but his father and others took him
away from the village, which would indicate that the accused
might have been prompted by a genuine intention to marry
which did not materialise on account of the pressure exerted by
his family elders,
i2. The facts of this case do not match with the facts of any of
the cases, which were discussed by the apex court in the above
cited ruling. In this case, it is the petitioner, who went back on
his promise, that too on a consideration that he would get Rs.50
lakhs of dowry if he marries anyone. From the said fact, there is
a possibility of inferring that the petitioner did not have an
intention to marry any girl unless she is ready to give Rs.50
lakhs to him, which he did not disclose to the de facto
complainant, at the time when he had sexual relations with her.
Hence, prima facie, sufficient material, attracting the offences
alleged under Section 417 IPC, is available.
13. The counsel for the petitioner contends that Section 417
IPC, being non cognizable offence, police do not have any power
to investigate without the order of the Magistrate,
Section 155(4) permits the police to investigate into non-
cognizable offences also, if it is coupled with a cognizable
offence. The police registered the case for Sections 417 and 420
IPC, may be under a genuine belief that the facts of the case
attracted Section 420 IPC. Merely because this court finds that
the ingredients of Section 420 IPC, does not get attracted to the
facts, after evaluating the material, it cannot be said that the
investigation done by the police is vitiated.
14. In view of the above, this court opines that continuation of
further proceedings against the petitioner, insofar as offence
under Section 420 IPC is concerned, would be an abuse of
process of law and that this is not a fit case to discharge the
petitioner insofar as offence under Section 417 IPC.
15. With the above observations, the Criminal Revision Case is
partly alowed and the petitioner is discharged insofar as offence
under Section 420 IPC.
The Criminal Revision Case insofar as the offence under
Saction 417 IPC is concerned, is dismissed.
Interim order granted by this court by order, dated
07.02.2019, shall stand vacated.
As a sequel, the miscellanéous applications, if any pending,
shall stand closed.
Sdi- Pp RAMAKRISHNA
JOINT REGIST RAR
1 TRUE COPY fl foe
SECTION OFFICER
I , Smit ice T-RAJANI
, Ear Copy to the Hon'ble Smt. Justice
One Far' (Eor Her Lordship's Kind Perusal)
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5 ao 283 to the Public Prosecutor, High Court of Andhra Pradesh ( )
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6, One CC to Sy Raja Reddy Koneti, Advocate (OPUC)
7. Two C.D. Copies.
MRC
Association Libraty, High Court Buildings,
HIGH COURT
DATED: 13-03-2079
SO.
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