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2019 DIGILAW 40 (AP)

Kancharana Venkatesh v. State of Andhra Pradesh

2019-03-13

T.RAJANI

body2019
ORDER : T. Rajani, J. 1. This revision is preferred questioning the order, dated 13.7.2018 passed in Crl. MP No. 1466 of 2018 in CC 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 is filed by the Counsel for the petitioner, are that the petitioner and the complainant fell in love. 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 complainant. Supporting the statement of the de facto complainant, the statements of her parents are also recorded. 4. The Counsel for the petitioner, by relying on a judgment of the Supreme Court passed in Crl. A. No. 1443 of 2018 between Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra and others reported in 2019 (1) ALD (Crl.) 523 (SC), 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. 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: "Section 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 term which may extend to seven years, and shall also be liable to fine." 6. 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: "Section 415. Cheating:-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any properly 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"." 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 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: "90. 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 person 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 who, 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 a 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 vitiated 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, 2003 (1) ALD (Crl.) 498 (SC) : (2003) 4 SCC 46 , 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 later date. The complaint was lodged on failure of the accused to marry her. 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 a grown up girl studying in a college. She 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 of the fact that their marriage may not take place at all on account of caste considerations. The caste consideration is an 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. 11. Another ruling of the Supreme Court reported Deelip Singh @ Dilip Kumar v. State of Bihar, 2005 (1) ALD (Crl.) 65 (SC) : (2005) 1 SCC 88 , 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 girl 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 promise he made was false to his knowledge. 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 promise he made was false to his knowledge. It also observed that the statement of PW 12 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. 12. 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. 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 allowed and the petitioner is discharged insofar as offence under Section 420 IPC. 16. The criminal revision case insofar as the offence under Section 417 IPC is concerned, is dismissed. 17. Interim order granted by this Court by order, dated 7.2.2019, shall stand vacated. 18. As a sequel, the miscellaneous applications, if any pending, shall stand closed.