JUDGMENT : 1. By way of this application, the applicant has prayed to quash and set aside the criminal complaint being C.R. No. I – 19 of 2016 registered with Kakrapar Police Station, District : Tapi under Section 376 of IPC dated 09.06.2016 and all consequential proceedings initiated in pursuance thereof in exercise of the inherent powers under Section 482 of the Code of Criminal Procedure. 2. The facts in brief are that on 09.06.2016 the respondent No.2 herein filed the impugned complaint inter alia alleging that she is a 32 years old lady serving with NACIL as Air Hostess. She and the applicant accused met on a Social Networking Site and subsequently, developed friendly relations. They exchanged their Telephone Numbers / E-mail ID’s with each other and used to chat on daily basis. It is alleged that on 30.05.2016 the applicant-accused sent a Taxi from Vyara so that the respondent-complainant could visit him at his place. The respondent complainant went to the place of the applicant in the said Taxi. It is alleged that the applicant-accused had informed the respondent complainant that he is unmarried and had proposed to marry the respondent-complainant. Thereafter, they developed physical relations. It is further alleged that after few days, when the respondent-complainant asked the applicant about their marriage, the applicant refused to marry her and instead informed her that he was already married. Therefore, the impugned complaint under Section 376 IPC came to be filed. 3. Mr. Hiren Modi, learned advocate for the applicant, submitted that the averments made in the impugned complaint itself suggests that the sexual relation between the parties was consensual in nature. At the relevant time, the respondent-complainant was a married woman as she was already married to one Vikrant Mahadev Ghate, who was a Pilot by profession. The said marriage had taken place on 28.04.2008. In April 2011, the respondent-complainant had filed a criminal complaint under Section 498A of IPC and allied sections against her husband – Vikrant Mahadev Ghate. 3.1 The learned advocate further submitted that the respondentcomplainant is in the habit of filing frivolous complaints. One such complaint being C.R. No. I – 516 of 2015 was filed by the respondent complainant at Halasur Police Station, Bangalore City, Karnataka against one Prabhajit Singh, a resident of Karnataka State, under Sections 376 and 420 of IPC. 3.1 The learned advocate further submitted that the respondentcomplainant is in the habit of filing frivolous complaints. One such complaint being C.R. No. I – 516 of 2015 was filed by the respondent complainant at Halasur Police Station, Bangalore City, Karnataka against one Prabhajit Singh, a resident of Karnataka State, under Sections 376 and 420 of IPC. It was, therefore, urged that the impugned complaint is nothing but an abuse and misuse of the Court process and it deserves to be quashed and set aside. 4. In this matter, initially, Notice came to be issued on 25.07.2016. However, fresh Notice came to be issued on 11.08.2016, as the Court was informed that the father of the respondent-complainant had refused to accept the Notice of this Court when it was attempted to be served at the given address of the respondent-complainant. It appears that the fresh Notice issued by this Court was duly served upon the respondent no.2- complainant on 31.08.2021, which is evident from the Service Affidavit produced on record. Thus, though served, the respondent-complainant has chosen not to appear before the Court or to appoint anyone to represent her case for all these years. Hence, the Court has no other option but to proceed with the matter on merits. 5. Learned APP Mr. Trivedi submitted that the applicant initially, lured the respondent-complainant to enter into a friendly relation with him and thereafter, made false promise to the respondent-complainant that he would marry her with a view to develop physical relations with her. The applicant took advantage of the situation though he was married at the relevant time. It was, therefore, prayed that no discretion be exercised in favour of the applicant. 6. Having heard the learned advocates, the question, which, essentially, comes up for consideration of this Court in this application is whether, in the facts and circumstances of the case, the alleged act of the applicant would fall within the definition of “rape” as provided in Section 375 IPC or whether the alleged sexual act between the applicant-accused and the respondent-complainant was consensual in nature. In the complaint itself, it has been averred that the applicant-accused and the respondent-complainant met on some Social Networking Site and exchanged their contact numbered. Thereafter, they used to chat on regular basis and developed love relations. In the complaint itself, it has been averred that the applicant-accused and the respondent-complainant met on some Social Networking Site and exchanged their contact numbered. Thereafter, they used to chat on regular basis and developed love relations. It is also averred that on the invitation sent by the applicant-accused, the respondent-complainant visited the place of the applicant at Vyara from Vadodara in a Taxi where the applicant allegedly gave her a promise of marriage and they developed physical relations. It is alleged that during the period between 30.05.2016 to 09.06.2016 the parties had developed physical relations on several occasions. The averments made in the complaint itself suggests that the relationship was consensual in nature. 7. In Kaini Rajan vs. State of Kerala, (2013) 9 SCC 113 , the Apex Court discussed the expressions “without her consent” as well as “consent given by a woman believing the man’s promise to marry her” by making the following observations : “14. This Court examined the scope of Section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 . In that case, this Court examined the meaning and content of the expression “without her consent” in Section 375 IPC as well as whether the consent given by woman believing the man’s promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90 IPC. But a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90 IPC. This Court further held that if, on facts, it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of the second clause of Section 375 IPC. In the facts of that case, this Court held, that the predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her of the prospect of marriage with the accused. The Court held that she came to the decision to have a sexual affair only after being convinced that the accused would marry her and it is quite clear from her evidence, which is in tune with her earlier version given in the first information report. The Court noticed that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act.” 8. In Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 , the Apex Court dealt with the expression “consent” and also drew distinction between mere breach of promise and non-fulfillment of false promise. In paragraph 21 of the said decision, it has been observed thus: “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 9. With the insertion of Section 114A in the Indian Evidence Act, a presumption has been drawn that the woman has given consent for physical relationship with the accused on account of the promise given by the accused that he would marry her. A statutory presumption has evidentiary value; of course, it does not say as to how the presumption should be drawn and how it should be rebutted. The question whether such presumption could be rebutted is to be determined on the basis of the evidence on record. However, at the same time, the other principles of jurisprudence, namely, presumption of innocence of accused, the legal rights of accused and the doctrine of reverse burden have to be borne in mind. Such balancing act, indisputably, would depend upon the factual matrix of each case and the material brought on record. In Anurag Soni vs. State of Chhattisgarh, (2019) 13 SCC 1 , the Apex Court discussed the circumstance as to when an act could be constituted as “rape”, in the following words: “16. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. 17. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.” 10. In Pramod Suryabhan Pawar vs. State of Maharashtra and anr., (2019) 9 SCC 608 , the Apex Court observed as under; “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held: “12. In Anurag Soni v State of Chhattisgarh, this Court held: “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.” Similar observations were made by this Court in Deepak Gulati v State of Haryana (“Deepak Gulati”): “21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…” 11. In a recent judgment delivered by the Apex Court in the case of Sonu alias Subhash Kumar vs. State of Uttar Pradesh and anr., AIR 2021 SC 1405, the facts were that the respondent-complainant had developed friendship with the appellant-accused and the appellant had assured that he would marry her. They developed physical relationship, which spread over a period of one and half years, during which time, the respondent-complainant also conversed with the parents and other family members of the appellant. The parents of the appellant were agreeable to the couple getting married. The appellant asked the complaint to come to District : Jhansi where they could get married. On reaching Jhansi, the complainant was informed by the father of the appellant that the appellant did not wish to marry her. The statement of complainant under Section 164 of Cr. P.C. also came to be recorded. In the above facts, the Apex Court observed thus : “8. The contents of the FIR as well as the statement under Section 164 of Cr. The statement of complainant under Section 164 of Cr. P.C. also came to be recorded. In the above facts, the Apex Court observed thus : “8. The contents of the FIR as well as the statement under Section 164 of Cr. P. C. leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge: (i) The relationship between the appellant and the second respondent was of a consensual nature; (ii) The parties were in the relationship for about a period of one and a half years; and (iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.” 12. In the present case, the material on record reveals that both the applicant-accused and the respondent-complainant were already married when they decided to go ahead with their relationship. The parties appear to have met on some Social Networking site some time in the year 2016, by which time, the respondent-complainant was into the eighth year of her marriage with one Vikrant Mahadev Ghate. It also appears that when the respondent-complainant entered into a relationship with the applicant, her matrimonial life was in a disgruntled state as she had filed a criminal complaint against her husband – Vikrant Mahadev Ghate under Sections 498A IPC and allied sections in April 2011. Some where around 2015, the respondent-complainant also appears to have developed a relationship with one Prabhajit Singh, who was a resident of Karnataka State at the relevant time. Against said Prabhajit Singh, the respondent-complainant had filed criminal complaint being C.R. No. I – 516 of 2015 with Halasur Police Station, Bangalore City, Karnataka under Sections 376 and 420 of IPC. The above facts show that the respondent-complainant was in relationship with two different individuals in the past; the first being the matrimonial relation with Vikrant Mahadev Ghate of Mumbai, State : Maharashtra, which resulted into the filing of complaint under Section 498 of IPC and allied sections and the second with one Prabhajit Singh of Bangalore, State : Karnataka, which resulted into the filing of complaint under Section 376 of IPC, before the respondent-complainant had entered into a relationship with the applicant in the year 2016, which also culminated into the filing of the impugned complaint under Section 376 of IPC. Considering the facts and circumstances of the case and the principle laid down in the above decisions, this Court is of the opinion that the relationship entered into by the respondent-complainant with the applicant was consensual in nature and there was no misconception of fact by the applicant so as to not exculpate him from the ambit of Section 376 of IPC. 13. For the foregoing reasons, the application is allowed. The impugned complaint being C.R. No. I – 19 of 2016 registered with Kakrapar Police Station, District : Tapi and all consequential proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.