Tuesday 19 March 2013

Engagement is broken after distribution wedding card,whether offence u/s 420 of IPC is made out?

I am of the considered opinion that the learned Sessions Judge is justified in setting aside the conviction recorded for the offences punishable under Sections 420 and 500 of IPC. The very basis for the charge under Section 420 of IPC was that the accused had received dowry of Rs. 10,000/- and failed to return the same and also refused to marry C.W. 2 and thereby cheated P.W. 2. The said basis of demand and acceptance of dowry itself is doubted by this Court in the order passed in the revision petition filed by the respondent-accused. Therefore, the very basis for the charge under Section 420 of IPC is found to be not acceptable. Merely because respondent-accused had promised to marry C.W. 2 and in that regard Betrothal Ceremony had been held, the marriage invitation cards had been printed and distributed and subsequently the respondent refused to marry C.W. 2, it cannot be said that he has committed the acts of cheating. As rightly held by the Appellate Court it is not the case of the prosecution that on account of the dishonest inducement by the respondent-accused either P.W. 2 or his sister-C.W. 2 were made to deliver any property and thereby they were deceived. As observed by the learned Sessions Judge, the prosecution has not brought out any circumstance to indicate that even on the date on which the accused agreed to marry C.W. 2, he knew that he never intended to marry her. May be ultimately the representation made by the respondent turned out to be untrue. However, that by itself cannot be a ground to hold that the respondent has committed the acts of cheating. The dishonest intention, which is an essential ingredient to cause the offence of cheating, must be shown to have been present even on the date when the promise was made. In the case on hand, no such circumstance is brought out on record. It is also not the case of the prosecution, as observed by the learned Sessions Judge, that by falsely inducing C.W., 2, the respondent obtained the consent of C.W. 2 and had sexual intercourse with her. Therefore, having regard to the evidence on record, in my opinion, the learned Sessions Judge is justified in holding that the ingredients of cheating as defined under Section 415 of IPC have not been made out, as such the judgment of the Appellate Court acquitting the appellant for the charges levelled for the offence under Section 420 of IPC cannot be termed as perverse or illegal. There is no infirmity in the said finding.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Criminal Appeal No. 1797 of 2005 (A)
Decided On: 29.08.2012
Appellants: State of Karnataka
Vs.
Respondent: B.N. Raghupathi

Citation;2013(1)crimes 528(karnataka)

1. This appeal under Section 378(1) and (3) of Criminal Procedure Code, 1973 is directed against the judgment and order dated 29-6-2005 passed by the Presiding Officer, Fast Track Court-III, Kolar in Cri. A. No. 65 of 2003 acquitting the respondent-accused for the offences punishable under Sections 420 and 500 of the Indian Penal Code, 1860 in reversal of the judgment of conviction recorded by the Trial Court in C.C. No. 32 of 1998 on the file of the Civil Judge (Junior Division) and Judicial Magistrate First Class, Gudibanda. The respondent-accused was charge-sheeted by the Gudibanda Police for the offences punishable under Sections 420 and500 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, "D.P. Act"). He pleaded not guilty for the charges levelled against him. After the full-fledged trial, the Trial Court convicted the respondent for all the offences for which he was charged. Aggrieved by the said judgment of conviction and order of sentence, the respondent filed appeal before the learned Sessions Judge. The learned Sessions Judge on re-appreciation of the evidence, allowed the appeal in part and reversed the judgment of the Trial Court insofar as it relates to conviction under Sections 420 and 500 of IPC and acquitted the respondent-accused of those two charges. Nevertheless, the learned Sessions Judge affirmed the conviction for the offences punishable under Sections 3 and 4 of the D.P. Act. Aggrieved by the said judgment of acquittal for the offences punishable under Sections 420 and 500 of IPC passed by the learned Sessions Judge, the State is in appeal.
2. It is brought to the notice of this Court that against the judgment of the Appellate Court affirming the conviction recorded by the Trial Court for the offences punishable under Sections 3 and 4 of the D.P. Act, the respondent filed Criminal Revision Petition No. 1118 of 2005 before this Court and the said revision petition has been allowed by order dated 30-11-2006 and the judgment of conviction for the offences punishable under Sections 3 and 4 of the D.P. Act has been set aside and the respondent-accused has been acquitted of those charges. In the light of the above, the point that arise for consideration in this appeal is:
Whether the learned Sessions Judge is not justified in acquitting the respondent-accused for the offences punishable under Sections 420and 300 of IPC?
3. I have heard both sides and perused the judgments under appeal.
4. The case of the prosecution in brief with regard to the above charges was that the respondent being resident of Peresandra Village agreed to marry C.W. 2-Rajalakshmi, sister of P.W. 2 and in this regard Betrothal ceremony was held on 6-6-1996, on which day, the marriage was fixed to be held on 18/19-6-1996 in Vokkaligara Kalyana Mantapa, B.V. Road, Chickballapur. At the time of the Betrothal Ceremony, the respondent-accused demanded and received a sum of Rs. 10,000/- from P.W. 2 as dowry and also had demanded a motor cycle to be given as dowry. However, subsequently, the respondent refused to marry the sister of P.W. 2 and also failed to return the dowry amount received and thereby committed the acts of cheating and on account of refusal on the part of the accused to marry C.W. 2 after the Betrothal Ceremony, the reputation of the family of P.W. 2 was defamed as such he has committed the offences punishable under Sections420 and 500 of the IPC.
5. Both the Courts below having regard to the evidence on record have recorded finding that the respondent-accused agreed to marry sister of P.W. 2 and in that regard Betrothal Ceremony was held on 6-6-1996 and the marriage had been fixed to be held on 18/19-6-1996. The Courts below have also noticed that for the said purpose, P.W. 2 had booked Kalyana Mantapa and got the invitation card printed and also had booked a motor cycle. In the light of these established factors, the Trial Court came to the conclusion that subsequent refusal on the part of the accused to marry C.W. 2 after having received dowry of Rs. 10,000/-, amounts to cheating. The Trial Court also held that refusal on the part of the respondent to marry C.W. 2 after participating in the Betrothal Ceremony and the marriage invitation cards having been printed and distributed, has resulted in damaging the reputation of the family of P.W. 2 and also it has defamed their family as such the accused is guilty of the aforesaid charges. However, the Appellate Court in para 17 of the judgment has held that refusal on the part of the accused to marry C.W. 2 would not attract definition of cheating under Section 415 of IPC in the sense that the evidence does not establish that the accused at the time of promising to marry C.W. 2 had any dishonest intention to induce either C.W. 2 or P.W. 2 to deliver any property nor the evidence on record indicates that the accused knowing fully well that his representation to marry C.W. 2 was false, made such promise and made either C.W. 2 or P.W. 2 to act on that, therefore, the refusal on the part of the accused to marry C.W. 2 was not with a dishonest intention and such dishonest intention was not shown to have been present on the date when he agreed to marry C.W. 2.
6. With regard to the charge under Section 500 of IPC, the learned Appellate Judge in para 18 of the judgment has held that there is absolutely no evidence to indicate that the accused by not marrying C.W. 2 defamed her or her brother, as such the ingredients of Section 499 of the IPC are not established.
7. Having heard the learned Counsel on both sides and on perusal of the judgment of the Appellate Court and in the light of the subsequent development that this Court has set aside the conviction recorded against the respondent for the offences punishable under Sections 3 and 4 of the D.P. Act, I am of the considered opinion that the learned Sessions Judge is justified in setting aside the conviction recorded for the offences punishable under Sections 420 and 500 of IPC. The very basis for the charge under Section 420 of IPC was that the accused had received dowry of Rs. 10,000/- and failed to return the same and also refused to marry C.W. 2 and thereby cheated P.W. 2. The said basis of demand and acceptance of dowry itself is doubted by this Court in the order passed in the revision petition filed by the respondent-accused. Therefore, the very basis for the charge under Section 420 of IPC is found to be not acceptable. Merely because respondent-accused had promised to marry C.W. 2 and in that regard Betrothal Ceremony had been held, the marriage invitation cards had been printed and distributed and subsequently the respondent refused to marry C.W. 2, it cannot be said that he has committed the acts of cheating. As rightly held by the Appellate Court it is not the case of the prosecution that on account of the dishonest inducement by the respondent-accused either P.W. 2 or his sister-C.W. 2 were made to deliver any property and thereby they were deceived. As observed by the learned Sessions Judge, the prosecution has not brought out any circumstance to indicate that even on the date on which the accused agreed to marry C.W. 2, he knew that he never intended to marry her. May be ultimately the representation made by the respondent turned out to be untrue. However, that by itself cannot be a ground to hold that the respondent has committed the acts of cheating. The dishonest intention, which is an essential ingredient to cause the offence of cheating, must be shown to have been present even on the date when the promise was made. In the case on hand, no such circumstance is brought out on record. It is also not the case of the prosecution, as observed by the learned Sessions Judge, that by falsely inducing C.W., 2, the respondent obtained the consent of C.W. 2 and had sexual intercourse with her. Therefore, having regard to the evidence on record, in my opinion, the learned Sessions Judge is justified in holding that the ingredients of cheating as defined under Section 415 of IPC have not been made out, as such the judgment of the Appellate Court acquitting the appellant for the charges levelled for the offence under Section 420 of IPC cannot be termed as perverse or illegal. There is no infirmity in the said finding.
8. Insofar as the charge under Section 500 of IPC is concerned, as rightly pointed out by the learned Appellate Judge, the ingredients of Section 499 of IPC have not been established. The reasons set out by the learned Appellate Judge in para 18 are sound and reasonable regard being had to the evidence on record and also the facts and circumstances of the case. In this view of the matter, there are no merits in this appeal. Accordingly, the appeal is dismissed.
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