ACHAR MNA. v. DR. D. L. RAJAGOPAL — 1977 DIGILAW 6 (KAR)

( 1 ) THESE two revision petitions are directed against the ord?r of the metropolitan Magistrate, II Court, Bangalore, in a case under Ss. 419 and 420 read with S. 114 of the IPC, discharging the accused of these offences. ( 2 ) THE prosecution case in brief was, that during Novr 1973 the accused approached, the petitioner MNA. Achar and made him to believe that the first accused Dr. D. L. Rajagopal was a bachelor and available for marriage with the Daughter of the petitioner. Accordingly, the petitioner end his daughter CW 5 consented to the marriage which took place at srirangam on 30-11-1973. The other four accused A-2 to A-5 actually partioipated in the marriage. They had also negotiated for the same and according to the petitioner abetted in the offences committed by Dr. D. L. Rajagopal the first accused. Subseauentlv, the petitioner-complainant and his daughter learnt that A-1 was alreadv married to one Kusumavati CW. 6 and the said marriage was pcrformed at Tirupati. It was stated that A-1 committed the offence of cheating by personation and was liable to be punished under S. 419 of the IPC. At the same time he fraudulently and dishonestly induced the petitioner-complainant and his daughter to perform the marriage of A-1 with the daughter CW. 5 and therebv caused damage of tje body mind and ronutation of the father and of the body, mind and renutation of the girl CW R. Therebv A-1 is stated to habe committed the offence of cheating as defined in S. 415 and Since he dishonestly induced the petitioner-complaiant to deliver a property. he is also liable for punishment for the offence under S. 420 of the IPC. With these allegations made in the police complaint, some investigation was made and finally the police submitted a challan against A-1 and the other four accused persons under ss. 419 and 420 read with S. 114 of the IPC. ( 3 ) THE learned Magistrate however considered that the charges made out were groundless and hence he chose to discharge these accused under s. 230 Crlpc. Poth the State as well as the petitioner-complainant have felt aggrieved of that decision and have preferred the two present criminal petitions. ( 4 ) SINCE a common question of law and fact arises in these two petitions, these can be disposed of by a single judgment. Poth the State as well as the petitioner-complainant have felt aggrieved of that decision and have preferred the two present criminal petitions. ( 4 ) SINCE a common question of law and fact arises in these two petitions, these can be disposed of by a single judgment. ( 5 ) A perusal of the judgment of the learned Magistrate indicates that he was of thp opinion that the offence of cheating by personation under S. 416 of the IPC was not made out, because the identity of Dr. D. L Paiagcpal, being a Doctor tearing that name was uniform all throughcut. He never substituted himself to be somehedy else nor did he pretend to be some other person. Therefore the learned Magistrate concluded that the offence cf cheating by personate was not made out. In respect of the offence of cheating under S. 420 IPC, the learned Magistrate seems to be of the poinion that unless some property was delivered at the instance of the accused ard the marriase of the daughter could not amount tf the delivery of any property to the accused at the instance of the father, that offence too was not made out. So saying the learned Magistrate held that the charges were groundless. ( 6 ) THE allegations made in the complaint as well as the statements of the witnesses produced during investigation made out rather a simple case. The petitioner-complairant alleged that A-1 as well as hi? other associates accused A-2 to A-5 approached both the father and daughter with the proposal of marriage. A representation was made that A-1 was a bachelor and since he was approved as such for the marriage, the petitioner-complainant and his dpughter agreed tc the proposal made. Thereafter, the marriage was performed: It was only subsequently that it was learnt that A-1 was already married to CW. 6 and had even a child from her. During investigation CW. 6 the alleged previous wife gave her statement. CW. 8 and CW. 10 are the persons from Tirupati who either performed the marriage or participated in it and in this manner they prima. facie proved the marriage of A-1 with CW. 6. CW. 9 is a Medical Officer through whose agency A-1 tried for the transfer of himself and also of his previous wife CW. 6 to one and the same place. 10 are the persons from Tirupati who either performed the marriage or participated in it and in this manner they prima. facie proved the marriage of A-1 with CW. 6. CW. 9 is a Medical Officer through whose agency A-1 tried for the transfer of himself and also of his previous wife CW. 6 to one and the same place. Despite this evidence on record, the learned Magistrate seems to have inferred that "there was nothing on record to show that A-1 had married CW. 6 before marrying cw. 5. " That inference was decidedly not borne out from the evidence, the learned Magistrate has further remarked that it is not known whether the first marriage was performed according to the Hindu rites. That statement is again prima facie incorrect because of the version given by CWs 8 and 10 as well as the allegations made in the complaint itself. ( 7 ) THE very reasoning of the learned Magistrate that unless there was delivery of property to any person the offence of cheating could not be formulated, appears to be incorrect. A bare reading of S. 415 of the IPC will indicate that the person deceiving if he intentionally induces the person deceived to do or omit to. do anything which he would not do or omit if he were not so deceived, he would nontheless be guilty of the offence of cheating, provided some damage or harm to that person is caused in body, mind, reputation or property. The learned Magistrate seems to have ignored the latter part of that section and accordingly held that unless there was any delivery of property to any person, the offence of cheating will not be made out. In the instant case even that condition was satisfied as there was a delivery of property in the sense that the marriage was performed and some gift or treatment howsoever meagre must have been given to the bridegroom namely A-1. In that view of the matter, prima facie there was cheating inasmuch as these accused dishonestly induced the petitioner-complainant as well as his daughter to go into the ceremony of marriage with A-1. There was obviously damage or harm to the petitioner or his daughter in body, mind, reputation or even property. Upon this the learned Counsel contended that the offence under Sec. 420 IPC made out. There was obviously damage or harm to the petitioner or his daughter in body, mind, reputation or even property. Upon this the learned Counsel contended that the offence under Sec. 420 IPC made out. ( 8 ) AS to the offence of cheating by personation, the complainant's case was that A-1 claimed to be a bachelor which he was not and thereby represented himself to be a person other than he actually was. In that manner the offence of cheating by personation as defined in Sec. 416 was purported to be made out. This offence is obviously punishable under s. 419 of the JPC. It may not be correct to say that simply because A-1 did not change his name at any occasion or remained the very same person, although assumed a different stalus or character according to his representation, the offence of cheating by personation could not be spelled out. ( 9 ) UNDER S. 239 of the Crlpc that accused could only be discharged provided a categorical finding was given by the Magistrate that the charges were groundless. In order to hold a charge groundless, either there should have been no iota of evidence or the evidence produced should have centra-indicated the offence or any other fundamental error to assume cognizance in the case should have been established. But what is contended on behalf of the accused is, that they may ultimately succeed in making out a defence in their favour and that may result in their acquittal. In my opinion that would not be the consideration for getting an order of discharge under S. 239 Crlpc The learned Counsel contended that the marriage as such with the first wife could not be proved. In that connection, the argument was that the marriage performed at Tirupati may not even be held to be a regular form of marriage. But the offence of cheating by personation or cheating itself as defined in Ss. 415 and 416, IPC, in fact doea not by itself depend upon the validity or otherwise of the first marriage so performed between A-1 and CW. 6. But the offence of cheating by personation or cheating itself as defined in Ss. 415 and 416, IPC, in fact doea not by itself depend upon the validity or otherwise of the first marriage so performed between A-1 and CW. 6. Rather this offence will depend upon the fraudulent and dishonest inducement made by the accused so that the petitioner-complainant or his daughter were deceived to do or omit to do anything on the representation made by A-1 of his being a bachelor and as such fit for marriage with the daughter of the petitioner-complainant. It may not be very material as to whether the first marriage was valid in the eye of law so long it was alleged that A-1 was keeping marital relationship with CW. 6 and was no longer a bachelor so that he could be considered capable to marry the daughter of the petitioner-complainant. If that representation or inducement on the part of the accused is held to be fraudulent or dishonest and obviously it resulted in the performance of the marriage, perhaps it may be possible to infer that the offence of cheating by personation or of cheating simpliciter under Ss. 416 and 417 of the ipc has been made out. ( 10 ) IT is then contended by the learned Counsel that in case the offence under Sec. 420 is not spelled out and it is held that the offence of cheating simplicitor punishable under S. 417 IPC is proved, then, it would be a non-cognizable offence and the police were not to investigate such an offence without the specific direction by the Court. For that a reference may be made to S. 2 (d) and 8. 155 (4) of the Crlpc. S. 2 (d) defines complaint and the explanation points out that a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizale offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to the complainant. The effect ia obviously this, that the report made by the police officer shall be deemed to be a complaint made by such police officer who shall be the complainant. Under S. 200 of the Crlpc if the police officer being a public servant is deemed to be a complainant, he need not be examined in Court. The effect ia obviously this, that the report made by the police officer shall be deemed to be a complaint made by such police officer who shall be the complainant. Under S. 200 of the Crlpc if the police officer being a public servant is deemed to be a complainant, he need not be examined in Court. Under See. 155 (4) if the ease relates to two or more offences of which one is cognizable, the entire case is deemed to be a cognizable case. In the instant case if the offence under S. 416 punishable under S. 419 IPC is made out, that would be a cognizable case and then perhaps any such irregularitv as pointed out by the learned Counsel will no longer exist in view of sub-see (4) of S. 155 of Crlpc. ( 11 ) ABOVE, all, whatever is submitted on behalf of the accused shall be available to them as and when the trial proceeds. Suffice it to say for the present that the police report as well as the documents sent with it under S. 173 did make out prime facie the two offences imputed against the accused. As regards A-2 to A-5 there are allegations in the complaint as well as in the statements of witnesses that these accused actively participated in the commission of the two offences. It is also established that they were aware of the alleged first marriage of A-1 with CW. 6 Kusumavati. As such, prima facie, they could also be indicted for the two Offences with the aid of S. 114 of the IPC. The order of discharge made by the learned Magistrate was obviously incorrect and has got to be set aside. ( 12 ) THE two criminal revision petitions are therefore allowed and the order of discharge made by the learned Magistrate is set aside. The case is sent back for the framing of proper charges and thereafter for proceeding in accoredance with law. ( 13 ) AS pointed out by the learned Counsel, the hearing of the cass may be entrusted to some other Magistrate other than the Metropolitan magistrate, II Court, Bangalore, as the latter has already expressed soma opinion in favour of the accused. The Chief Metropolitan Magistrate, bangalore, will accordingly entrust the case to any other competent Magistrate within his jurisdiction. --- *** --- .