NAHIMA KANT CHATTERJEE Vs. SHASHANK SHEKHAR MUKHERJEE

JUDGEMENT

(1.) Applicant- accused persons, in Misc. Criminal Case No. 349/89 pending before the Judicial Magistrate Class I, Raigarh, seek interference of this Court under Section 482 of the Criminal Procedure Code to quash those proceedings on the ground that they amount to abuse of the process of the Court and it is otherwise necessary to do so to secure the ends of justice.

(2.) The non-applicant No.1 and applicant No.4 Smt. Sujata Mukharjee were married on 8-2-1984 at Raipur in accordance with Hindu rites after which the applicant No.4 went to Raigarh to stay with the Non-applicant No.1. The non-applicant, in his complaint alleged that he could not consummate his marriage by performing sexual act as the applicant No.4 avoided the same on one pretext or the other. The non-applicant further alleged that while avoiding the sexual intercourse, the applicant No.4 had been stealthily getting treatment from Doctor Mst. Shrivastava at Raigarh. It is further alleged that the applicant No.4 suffered from physical disability and was, therefore, incapable of engaging in sexual intercourse. The applicants are alleged to have got the applicant No.4 treated at Raipur and for that purpose a D. & C. operation was performed on 15-11-1985. The complainant-non-applicant further alleged that the applicants had not informed him of the aforesaid. Physical disability of the applicant No.4 and had thereby dishonestly induced him to get married. This, according to the non applicant, amounted to an offence punishable under Sections 419, 420 read with Section 120B of the Indian Penal Code. The complaint was filed before the Magistrate on 5-4-1985 on which date the statement of the applicant was also recorded. The learned Magistrate however, did not issue process on- 5-4-1989 adjourned the case for taking statement of other witnesses. On 15-6-1989 one Rajendra Prasad was examined as a witness of the non-applicant and the case again postponed to 17-6-1989 for consideration. On 17-6-1989 the learned Magistrate formed the opinion that the facts alleged establish commission of offence under Section 417/34 of the Indian Penal Code against the applicants Nos. 1 to 3 and Section 417 against the applicant No.4 and directed issue of summons to the applicants for their appearance in the Court challenging legality of the aforesaid order.

(3.) Section 417 of the Indian Penal Code punishes cheating, defined under Section 415 of the Indian Penal Code. In order to constitute, within this provision, it is necessary that: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) 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 the person so deceived should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (ii) in cases covered by second part of (ii) above, the act or omission should be on which causes or is likely to cause damage or harm to the person induced in body mind, reputation or property. These ingredients have been fully explained by the Supreme Court in Ram J as v. State of U.P.1 and are otherwise clear from the language of Section 415 of the Indian Penal Code. In order to satisfy these requirements, the complaint, in the instant case, should prima facie disclose that the applicants fraudulently or dishonestly induce the non-applicant by deceiving him to agree to marriage. It should, therefore, be shown prima facie that the non-applicant would not have married if he was not so deceived and, thereafter it must prima facie be established that the marriage has caused him damage or harm in body, mind, reputation or property. Deceit is, therefore, an essential element of this offence and unless there is evidence of deception no charge under this provision can be framed. The facts aforesaid do not, in the opinion of this Court, satisfy this requirement. Assuming that the applicant No.4 is incapable of engaging in sexual intercourse, her silence and thereby not disclosing this physical defect to the non-applicant before marriage would not be dishonest. It is not the non-applicant's case that he had asked the applicant No.4 about her physical capacity and she had dishonestly or fraudulently deceived her. If Indian condition is taken into consideration such examination of the future bride by a future bride groom is really unthinkable. Then the complainant himself states that he knew the physical defect in the applicant No.4 immediately after marriage and got her treated by a Vaidya. This would not justify inference of any intention to deceive on the part of the applicant No.4. It is otherwise reasonable to assume that the physical defect of the type alleged could possibly not have remained unknown after marriage and, therefore its concealment would not be possible. Under the circumstances, something more than mere concealment would be required to attract application under Section 415 of the Indian Penal Code. Be that as it may, these facts do not justify the inference that the facts alleged disclose dishonest or fraudulent inducement of the non-applicant by deceiving him. There would, therefore, be no justification for alleging cheating by the applicant No.4.