JUDGMENT : Ananya Bandyopadhyay, J. 1. This appeal is preferred against judgment and order dated 26th September, 2013 passed by the Learned Additional Sessions Judge, Fast Track Court – II, Krishnagar, Nadia in Sessions Trial No. XIV of April, 2008 arising out of Sessions Case No. 97 of April, 2008 convicting the appellant under Section 417 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs.50,000/-in default to suffer further rigorous imprisonment of three months. 2. The prosecution case emanated on the basis of complaint filed by the victim lady, inter alia, stating to have been romantically involved with the appellant for a period of four years. The appellant enticed her to cohabit as his wife and visited hotels coaxing to marry him. The complainant resented such relationship, however, did not raise any objection considering her love and affection for the appellant, whom she considered to be her husband and consumed contraceptive pills without anybody’s knowledge. On persistent persuasion the appellant agreed to marry her. On 03.08.2007 he married her in the presence of image of “Sri Radha Govinda” and filed an application at Krishnagar Marriage Registration Office for registration of their marriage signed by three witnesses being the friends of the appellant. The said application was filed on 06.08.2007. On 07.08.2007 the victim was supposed to go to the house of the appellant as his wife but in vain. Subsequently, on the arrival of the victim, the parents of the appellant denied her relationship with the appellant and rebuked her in the presence of the local people threatening her with dire consequences. Subsequently, the victim was compelled to lodge the complaint at the police station. 3. Based on the aforesaid complaint Krishnaganj Police Station Case No. 117 of 2007 dated 28.08.2007 under Sections 376/ 417/ 120B/ 506/ 315 of the Indian Penal Code was instituted against the present appellant and his parents and sister. 4. On completion of the investigation Charge-Sheet No.176 of 2007 was filed against the aforesaid accused persons under Sections 376/ 315/ 417/ 506/ 120B of the Indian Penal Code against which charges were framed under Sections 376/417 of the Indian Penal Code against the accused persons to which they pleaded not guilty and claimed to be tried. 5. The prosecution examined 13 witnesses and exhibited certain documents and defence examined 1 witness. 6. 5. The prosecution examined 13 witnesses and exhibited certain documents and defence examined 1 witness. 6. The Learned Advocate for the appellant submitted as follows:- i. The evidence of PW-2 had not been corroborated by any other prosecution witnesses except her parent with regard to the mutual relationship. ii. The prosecution failed to produce any material or evidence before the Learned Court below except the evidence of PW-2 and her parents with regard to the fact that the appellant had free access to the house of the PW-2. iii. The appellant disputed his relationship with PW-2 and such relationship had not been proved by the prosecution. iv. From the evidence of PW-2 two letters were marked as “X” and “X-1” and no photographs were exhibited within the document marked “X”. and the same could not be admissible in evidence. 7. The Learned Advocate for the appellant further submitted that:- i. PW-2 in her examination in chief deposed that, "a love affair was developed between myself and Dipankar. Afterwards physical relation goes up between us”. She further deposed "I did not consent him to physical relation. Then he took his parents, uncle, aunt and sister to our house and talked about our marriage. After that incident I became assured that our marriage would be solemnized." She further deposed, that "in spite of visiting to our house by parents of Dipankar, the father of Dipankar arranged the marriage of Dipankar with another girl. Dipankar did not like to marry as per arrangement of his father. Dipankar married me at Domkol in a temple of Radha Gobinda”. ii. She also deposed in examination-in-chief that "father of Dipankar never agreed my marriage with Dipankar”. In cross examination, PW-2 categorically deposed that "at the relevant time of the occurrence of this case, I was aged 17+ years”. In her cross examination she further deposed that, "I was not medically examined by any doctor due to my relationship with accused Dipankar Daradi." She also deposed in cross-examination that "this information was lodged after about two years of my love affair with the accused Dipankar Daradi”. She further deposed in cross-examination that she stated about her relationship to Partha Biswas, Sanjoy Biswas and Sujit Biswas but none were examined. In cross-examination she deposed "Once salish was held at the village regarding our incident. In that salish our marriage was not proved." iii. She further deposed in cross-examination that she stated about her relationship to Partha Biswas, Sanjoy Biswas and Sujit Biswas but none were examined. In cross-examination she deposed "Once salish was held at the village regarding our incident. In that salish our marriage was not proved." iii. PW-3/mother of the PW-2 deposed that, "one incident of my daughter Pampa Mondal was taken place with the accused Dipankar Daradi. That incident was happened on 3-8-2007”. PW-3 further deposed that, "Father of Dipankar Daradi told that he would not allow the marriage in between Dipankar and Pampa." iv. In her examination-in-chief, PW-3 deposed that, "Dipankar Daradi married thereafter and since then my daughter has been living with me”. In her cross examination PW-3 deposed that, "my daughter was not in service in ICICI Bank”. She further deposed in her cross examination that, "at the time of that village salish, Darogababu was present”. v. PW-6/Medical Officer attached to Krishnanagar Sadar Hospital deposed that she examined PW-2 on 07.09.2007 in connection with Krishnaganj Police Station Case No. 117 of 2007 dated 28.08.2007 and on examination found uterus -normal size, vagina -two fingers easily. She was habituated to coitus. Urine for pregnancy test, U.S.G old abdomen. PW-6 further deposed that informant made a statement before him which was recorded by him and they lived together for about one month. vi. PW-7, the father of PW-2, in his examination-in-chief deposed that his daughter was a student of B.A. in the year 2006. PW-7 deposed in his examination-in-chief that the parents of Dipankar did not admit them. vii. In his cross examination he deposed that, "I stated to the I.O. that I went to the house of father of Dipankar Daradi with the proposal of marriage in between my daughter Pampa and Dipankar Daradi but when they refused to admit that proposal, then I went to the Police Station”. viii. PW-13, the Investigating Officer in his examination-in-chief deposed that "I made prayer after medical examination of the complaint. That prayer was allowed and after medical examination I collected the report”. ix. In cross examination PW-13 deposed that "I did not ascertain the age of the victim girl." x. PW-2 stated in spite of such assurance and declaration of their relationship as husband and wife, she did not consent to their physical relationship. That prayer was allowed and after medical examination I collected the report”. ix. In cross examination PW-13 deposed that "I did not ascertain the age of the victim girl." x. PW-2 stated in spite of such assurance and declaration of their relationship as husband and wife, she did not consent to their physical relationship. She further deposed that after marriage at the temple and prior to visit of parent of the Dipankar at his father's house, their physical relationship was continued. Such evidence of the PW-2 was doubtful. xi. It was well settled that in order to bring home the charge of cheating it was not sufficient to proof that the false representation had been made, but it was further necessary to proof that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. xii. In the instance case, PW-2 complainant in her evidence deposed that "Dipankar did not like to marry as per arrangement of his father. Dipankar married me at Domkol in a Temple of Radha Gobinda”. She further deposed "father of Dipankar never agreed to marry with Dipankar”. From the evidence it was clear that even if it was assumed that PW-2 agreed to sexual intercourse with the accused on account of promise of marriage, the charge under Section 417 could not be sustained in absence of any evidence to show that the said representation by the accused was false to the knowledge of the accused at the time it was made. On the other hand, it was evident from the deposition of the PW-2, the complainant that the marriage could not be solemnized since the father of the accused never agreed her marriage with Dipankar, appellant. xiii. Section 90 of the Indian Penal Code could not be called in aid in such a case to pardon the girl and fasten the criminal liability on the other, unless the Court could be assured that from the very inception the accused really intended to marry her. To this, appellant relies upon the decision of the Hon'ble Supreme Court reported in 2003 (4) SCC 46 (Uday -Vs-The State of Karnataka) relevant paragraph is 25. And also 1990(1) CHN-191 (Hari Majhi @ Hari Malik -Vs-The State) relevant paragraphs are 8 & 10. xiv. To this, appellant relies upon the decision of the Hon'ble Supreme Court reported in 2003 (4) SCC 46 (Uday -Vs-The State of Karnataka) relevant paragraph is 25. And also 1990(1) CHN-191 (Hari Majhi @ Hari Malik -Vs-The State) relevant paragraphs are 8 & 10. xiv. It was evident that the complainant in her First Information Report and substantive evidence before the Court that the appellant sincerely wanted to marry the complainant but his father/parent stood in the way of their marriage and denied their relationship. “From these facts, we were unable to accept that the appellant made any false promise/ representation/ assurance to the complainant with knowledge that such promise/representation/assurance was false in any manner. On the contrary it was evident that the complainant as stated in her complaint as well as in her deposition that the appellant was all though serious and sincere to marry the complainant. From, subsequent failure of the appellant to marry the complainant it cannot be concluded that the deception preceded the actual transaction”. Reliance can be placed upon the decision reported in 1999 CrLJ -3534 (Abhoy Pradhan -Vs-The State of West Bengal) relevant paragraphs are 15, 16 & 17. 8. Considered the rival contentions of the Learned Advocate for the State. 9. A circumspection of the prosecution witnesses revealed as follows:- i. PW-1. PW-9, PW-11 and PW-12 were declared hostile by the prosecution. ii. PW-4 had been a seizure list witness who had denied to acknowledge the accused persons. PW-4 indentified his signature on the seizure list marked as Ext. 3/1. iii. PW-5 identified his signature on the seizure list marked as Ext.3/2. iv. PW-6, the Medical Officer attached to Krishnagar Sadar Hospital, Nadia examined the victim who divulged to have been married to the appellant for about a month being in a relationship for 5/6 years. The medical report issued by the PW-6 was marked as Ext. 5. v. PW-13 on completion of the investigation filed the charge-sheet. 10. The Learned Advocate for the appellant relied the following decisions to bolster his case:- i. Uday Vs. State of Karnataka : (2003)1 C Cr LR (SC) 555 ii. Hari Majhi @ Hari Malik Vs. The State (Criminal Appeal No. 432 of 1987), dated 26th September, 1989 iii. The Regional Passengers Association Vs. Haripal Jangipur Rajbalhat Bus Syndicate & Ors. (FMAT No. 2136 of 1986), dated 2nd February, 1990 iv. Abhoy Pradhan Vs. State of Karnataka : (2003)1 C Cr LR (SC) 555 ii. Hari Majhi @ Hari Malik Vs. The State (Criminal Appeal No. 432 of 1987), dated 26th September, 1989 iii. The Regional Passengers Association Vs. Haripal Jangipur Rajbalhat Bus Syndicate & Ors. (FMAT No. 2136 of 1986), dated 2nd February, 1990 iv. Abhoy Pradhan Vs. State of West Bengal: 1999 CRI. L. J. 3534 11. The Learned Trial Court had acquitted the co-accused and convicted the present appellant under Section 417 of the Indian Penal Code. 12. Section 415 of the Indian Penal Code states as follows:- “Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property 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". Explanation.—A dishonest concealment of facts is a deception within the meaning of this section. Illustrations (a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats. (b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats. (c) A, by exhibiting to Z a false sample of an article intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats. (d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats. (e) A, by pledging as diamond articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats. A cheats. (e) A, by pledging as diamond articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats. (f) A Intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. (g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract. (h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats. (i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.” 13. The Hon’ble Supreme Court in Tilak Raj v. State of H.P., (2016) 4 SCC 140 held the following:- “17. The evidence as a whole, including the FIR, testimony of the prosecutrix and the MLC report prepared by the medical practitioner clearly indicates that the story of the prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the appellant seems to be consensual in nature. The trial court has rightly held thus: “23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bedroom at night. 24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature. 25. It is also not the case that the consent had been given by the prosecutrix believing the accused's promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 5-1-2010 when the accused was stated to have been summoned to the office of the DSP. Prior to 5-1-2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in-chief, but her cross-examination shows that no doubt the two were in a relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, some talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage.” 18. As far as the conviction of the appellant under Sections 417 and 506, Part I IPC is concerned, a close scrutiny of evidence of the prosecutrix (PW 2) along with other prosecution witnesses is done by this Court. Section 417 IPC prescribes punishment for the offence of cheating as defined under Section 415 IPC. Section 415 IPC reads thus: “415. As far as the conviction of the appellant under Sections 417 and 506, Part I IPC is concerned, a close scrutiny of evidence of the prosecutrix (PW 2) along with other prosecution witnesses is done by this Court. Section 417 IPC prescribes punishment for the offence of cheating as defined under Section 415 IPC. Section 415 IPC reads thus: “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property 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’. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 19. The ingredients required to constitute the offence of cheating have been discussed by this Court in [Ram Jas v. State of U.P., (1970) 2 SCC 740 : 1970 SCC (Cri) 516] as under: (SCC p. 743, para 3) “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” 20. A careful reading of the evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section 415 IPC. For conviction of the appellant for the abovesaid offence, it is important that all the necessary ingredients constituting an offence under the said section must be proved beyond reasonable doubt. For conviction of the appellant for the abovesaid offence, it is important that all the necessary ingredients constituting an offence under the said section must be proved beyond reasonable doubt. In the instant case, the appellant cannot be convicted for the offence of cheating punishable under Section 417 IPC as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt.” 14. In Sonu v. State of U.P., (2021) 18 SCC 517 the following was held by the Hon’ble Supreme Court:- “7. The contents of the FIR as well as the statement under Section 164CrPC leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge. 7.1. The relationship between the appellant and the second respondent was of a consensual nature. 7.2. The parties were in the relationship for about a period of one-and-a-half years. 7.3. Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR. 8. In Pramod Suryabhan Pawar [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] , while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations : (SCC p. 618, para 16) “16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.” 9. Further, the Court has observed : (Pramod Suryabhan Pawar case [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] , SCC p. 620, para 18) “18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.” 10. Bearing in mind the tests which have been enunciated in the above decision [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] , we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” 15. The victim/PW-2 had been an adult lady. PW-2 was a professional colleague of the appellant at the I.C.I.C.I. Bank. The appellant had unhindered access to the house of the victim. PW-3 and PW-7, the mother and father of the victim respectively were aware of the relationship between the victim and the appellant and did not protest or objected to their evolving intimacy. 16. PW-3, the mother of the victim deposed her daughter to have resided with the appellant at a rented commission and cohabited like a married couple. The victim and the appellant would be in sojourn at different place on different occasions. 16. PW-3, the mother of the victim deposed her daughter to have resided with the appellant at a rented commission and cohabited like a married couple. The victim and the appellant would be in sojourn at different place on different occasions. The appellant had accompanied the victim at Domkol on an assurance of arranging a service for her. 17. PW-7, the father of the victim concurred the evidence of PW-3 with regard to the relationship of the victim with the appellant and their cohabitation. 18. The victim/PW-2 asserted to have married the appellant at a temple of “Radha Govinda” in the district of Murshidabad and having signed the forms of marriage registration in presence of three witnesses, who happens to be the friends of the appellant. Neither the forms were exhibited before the Court nor the friends of the appellant were cited as witnesses. In her testimony PW-2 agitated the refusal of the appellant’s father to accept marriage between the victim and the appellant. The victim’s consent to her relationship with the appellant to have been obtained on a promise to marry cannot be sustained. The victim being an adult lady cannot be oblivious of the repercussions and ramifications of coitus with a person with whom admittedly she was in a loving relationship and willingly cohabited with him as a married couple declining to depress the appellant. 19. The victim out of her own volition resided with the appellant at various places. There are contradictions in the complaint as well as deposition of PW-2. The act of the appellant to have married the victim in a temple if at all be believed, did not constitute initial inducement on the part of the appellant to deceive the victim on promise to marriage. 20. The offence under Section 417 of the Indian Penal Code predicate the initial deception on the part of the appellant to harm the victim is one of the primary ingredients. In the instant case, the victim being an adult was aware of the consequence of her relationship with the appellant if the same was not materialized. She had voluntarily consented to such cohabitation and failed to justify initial inducement on the part of the appellant. 21. Under the facts and circumstances, the prosecution has failed to establish its case beyond reasonable doubt and as such the criminal appeal is allowed. 22. She had voluntarily consented to such cohabitation and failed to justify initial inducement on the part of the appellant. 21. Under the facts and circumstances, the prosecution has failed to establish its case beyond reasonable doubt and as such the criminal appeal is allowed. 22. Accordingly, the criminal appeal being CRA 932 of 2013 stands disposed of. 23. There is no order as to costs. 24. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 25. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.