SHIBNATH MUKHERJEE Vs. STATE OF W B

JUDGEMENT

(1.) This revisional application under Section 482 of Cr.P.C. has been preferred by the petitioners for quashing complaint case No. C-661 of 2002 under Sections 419 and 420 of the Indian Penal Code (in short I.P.C.) now pending in the Court of the learned Chief Judicial Magistrate (in short CJM), Barasat and the order dated 16.9.02 passed by the learned CJM issuing process against the petitioners and another accused.

(2.) The aforesaid complaint case was started on the basis of complaint lodged by O.P. No. 2 as complainant in the Court of the learned CJM against these petitioners and another accused. It was the allegation of complainant that on the basis of an advertisement in 'Bartaman' Bengali Daily newspaper dated 21.2.99 a marriage negotiation between Pranabesh Bagchi, son of complainant and Petitioner No. 2 Mohua Bagchi nee Mukherjee was made and in the newspaper the advertisement was published as 'quick marriage, East Bengal Mukherjee, 20/5'I" Class X standard, really beautiful, expert in household works, father Central Government employee, no objection in business'. During negotiation the petitioner No. 1, father of the bride told that his daughter is Xth standard pass. The complainant on her good faith relying upon representation of accused Petitioner No. 1 and other relatives of the bride without making any enquiry settled the marriage of her son with accused Petitioner No. 2 under Special Marriage Act and the marriage was solemnised on 2.12.99. On the night of 'fulsajya' complainant's son discovered that he has been deceived by the father of the bride who has suppressed about old mental ailment of his daughter which is incurable. After the marriage, it was noticed that accused Petitioner No. 2 used to leave her wearing apparels in front of other persons without caring for privacy and she uttered irrelevant talks. During her stay in the matrimonial home the complainant's son tried to have co-habitation with his wife, the accused No. 2, but the attempt failed as right hand of accused No. 2 started trembling abnormally. Accused No. 2 disclosed to the son of complainant that it was due to the result of some kind of disease and doctor advised her that, if she takes regular medicine throughout her life, the disease would remain under control but would not be cured. Thereafter, the complainant made appointment with Dr. Braja Ghosh, a Neurologist for treatment of accused No. 2 and Dr. Ghosh referred the case to a reputed neorophysicist Dr. Narayan Chakraborty. Dr. Chakraborty after examining accused No. 2 declared that she was suffering from mental ailment since her birth. Subsequently, accused No. 2 filed an application under Section 36 of the Special Marriage Act in the Court of the learned Additional District Judge, 6th Court, Alipore. In the matrimonial suit she stated that she read upto Class-IX standard and she was not Class-X standard pass. The complainant accordingly lodged the complaint against the accused petitioners and another for the offence of cheating. It appears that the learned CJM by order dated 16.9.02 issued process under Sections 419 and 420 of I.P.C. against the petitioners and another. Thereafter, the petitioners have moved this Court for quashing the proceeding and also for quashing the impugned order passed by the learned Magistrate issuing process against them.

(3.) Mr. Joymalya Bagchi, learned Advocate for the petitioners contended that a plain reading of the petition of complaint without adding or subtracting anything to it would clearly indicate that there is no element of offence under Sections 419 and 420 of I.P.C. Section 30 of the I.P.C. describes what is valuable security. The complaint discloses that there was no inducement and there was no delivery of property and there was no wrongful loss to the complainant and wrongful gain to the accused persons. There are several inconsistencies in different paragraphs of the complaint. The Petitioner No. 2, the daughter-in-law of complainant started a case under Section 498A of I.P.C. against her husband and other in laws, and thereafter, as a counter blast the complainant instituted the present proceeding. There cannot be any misrepresentation if the bride read upto Class IX and not Class-X. It does not attract any element of cheating. Matter would have been different if the bride i.e. Petitioner No. 2 was totally illiterate. The mental incapacity of bride since birth cannot be regarded as suppression and concealment of incurable disease amounting to cheating.