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2011 DIGILAW 74 (AP)

Akella Sushmita Vardhani v. Mohmmed Mirza Hassan

2011-01-29

R.KANTHA RAO

body2011
Judgment : This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, to quash the entire proceedings in C.C.No.375 of 2009, on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard the learned counsel appearing for the petitioner and the first respondent and also the learned Public Prosecutor representing the second respondent/State. 3. The brief facts necessary for considering the Criminal Petition are that the first respondent lodged a report on 05.09.2008 against the petitioner before the IV Town Police Station, Visakhapatnam, alleging that the petitioner under the pretext of marrying him had sexual cohabitation with him which resulted in pregnancy, subsequently, it was terminated on 05.08.2005 and 23.11.2006 respectively. It has been further alleged in the report that there is love affair between the petitioner and the first respondent and the same is known to everybody in the college. It has been further alleged that the first respondent had purchased jewellery worth Rs.60,000/- and presented the same to the petitioner and also paid some amount towards penalty for shortage of the attendance of the petitioner. Subsequently, on knowing about the petitioner’s marriage being fixed with one Srikanth, he lodged a report with the police alleging that she cheated him. 4. The police investigated into the case and filed a final report, dated 15.04.2008, into the Court of I Additional Chief Metropolitan Magistrate, Visakhapatnam, stating that the allegation the petitioner is in love with the complainant from 2005 to 2008 is totally false. Thereafter, on a protest petition filed by the first respondent, the learned Magistrate took cognizance of the case under Sections 417 and 420 IPC. The present Criminal Petition is filed to quash the said C.C.No.375 of 2009 5. The learned counsel appearing for the petitioner submitted that in fact there is no relationship between the petitioner and the first respondent, much less any physical or sexual relationship and, therefore, the question of pregnancy does not arise. According to the learned counsel, the complaint was filed with illegal intention to spoil the marriage prospects of the petitioner for extraneous considerations and the learned counsel seeks to quash the entire proceedings in C.C.No.375 of 2009. 6. It has been submitted on behalf of the petitioner that she is an engineering student whereas the first respondent failed his 10th standard and discontinued his education. 6. It has been submitted on behalf of the petitioner that she is an engineering student whereas the first respondent failed his 10th standard and discontinued his education. The first respondent is aged about 39 years and nurturing criminal intentions only with a view to black mail the petitioner and her family members by staking their reputation and future, only to have unjust enrichment. 7. If a person makes a promise and subsequently fails to keep the promise, he/she cannot be attributed with the offence of cheating. The offence of cheating defined in Section 415 of IPC necessarily involves an element of deception or fraud at the time of making promise. The mens rea required being deception or fraud at the time of making representation or promise, it’s non-existence at the very inception does not constitute the offence of cheating. Resiling from promise to marry may happen due to various reasons and quite often, it will be on account of the circumstances beyond the control of the individual. In any case, a lady for not keeping the promise to marry, need not explain the circumstances leading to making a decision not to marry an individual although she promised him to marry at one time. While exercising extraordinary powers under Section 482 Cr.P.C., this Court will examine the nature of allegation made and if such allegation constitutes any offence. The nature of allegation made by the first respondent against the petitioner would appear ex facie false. For any reason, even if it is considered to be true, no man living in a civilized society would resort to involve the lady in a criminal charge in the circumstances narrated in the complaint. I have no doubt that the motive of the first respondent is oblique and the design is civil. The purpose of filing case of this nature appears to be extraneous to the facts stated in the complaint. It may be either to extract some money or to avenge. The crucial question however, requires determination is whether even if the entire allegations levelled against the petitioner by the first respondent are considered to be true, whether they attract any criminal offence. Even if the love affair between the petitioner and the first respondent is true, there is no legal obligation on the part of the petitioner to marry the first respondent. Even if the love affair between the petitioner and the first respondent is true, there is no legal obligation on the part of the petitioner to marry the first respondent. Same is the position even if the petitioner promised to marry the first respondent and in consequence thereof, the first respondent presented her jewellery worth Rs.60,000/-. In this context, it is required to be noticed that when once any article is gifted or presented to the petitioner for whatever reason, the said movable property becomes her property soon after accepting the gift and the first respondent has no right of action against the petitioner to recover the same. 8. The entire approach of the first respondent in filing the criminal case of the present nature is unethical and resorting to filing a case of this nature is highly reprehensible. When both the parties have attained the marriageable age, they loved each other and one promises the other to marry, even if the promise is broken, it will not give raise to any civil or criminal liability. Absolutely, the alleged conduct of the petitioner even if considered as true, does not amount to any criminal offence. 9. This Court is of the considered view that allowing the prosecution of this nature to continue is nothing but abuse of process of law and it results in jeopardizing the marriage prospects of the petitioner. Therefore, the entire proceedings in C.C.No.375 of 2009, pending on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam, are hereby quashed. 10. Accordingly, the Criminal Petition is allowed.