High Court

Legal Reasoning

appln-1836-2024 with appln-4715-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1836 OF 20241.Ankita w/o Gitesh Kulkarni2.Sanjay s/o Digambar Kalmankar3.Ashwini w/o Sanjay Kalamankar4.Nikita d/o Sanjay Kalmankar5.Aditya s/o Sanjay Kalmankar6.Devidas s/o Khanaderao Patil .. ApplicantsVersus1.The State of Maharashtra2.Gitesh s/o Umakantrao Kulkarni.. Respondents…WITHCRIMINAL APPLICATION NO.4715 OF 2024…Mr. S. V. Kulkarni, Advocate for the applicants in both the applications.Mrs. P. R. Bharaswadkar, APP for respondent No.1/State in both theapplications.Mr. S. S. Gangakhedkar, Advocate for respondent No.2.... CORAM : SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.DATE : 21 AUGUST 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Criminal Application No.4715 of 2024 has been filed for productionof documents. For the reasons stated in the application, CriminalApplication No.4715 of 2024 stands allowed and disposed of.[1] appln-1836-2024 with appln-4715-2024.odt2.Criminal Application No.1836 of 2024 has been filed for quashingthe FIR vide Crime No.102 of 2024 dated 17.02.2024 registered withOmerga Police Station, District Dharashiv (Osmanabad) for the offencespunishable under Sections 120-B, 420 read with Section 34 of IndianPenal Code.3.Heard learned Advocate Mr. S. V. Kulkarni for the applicants inboth the applications, learned APP Mrs. P. R. Bharaswadkar forrespondent No.1/State and learned Advocate Mr. Rahul Cheble holdingfor learned Advocate Mr. S. S. Gangakhedkar for respondent No.2.4.Learned Advocate for the applicant, after taking us through theFIR submits that the FIR is the outcome of the order below Exhibit-01 inCriminal Miscellaneous Application No.13 of 2024, under which thepolice were directed to investigate the matter under Section 156(3) of theCode of Criminal Procedure, however, while passing the said order, thelearned Magistrate had not considered the ingredients of the offence.The informant/respondent No.2 husband has given the events since thedate of marriage proposal from 25.12.2013, his interacting with the wifeapplicant No.1 and engagement on 16.03.2014. Thereafter, the sittingsfor cancellation of date of marriage and as to how the marriage date wasrequired to be cancelled which was scheduled on 25.01.2015. Thereafteragain the marriage date was fixed and it was then performed on[2] appln-1836-2024 with appln-4715-2024.odt07.06.2015. Applicant No.1 and respondent No.2 are blessed with sonon 06.07.2016. Then it is stated that applicant No.1 started going to herparental home frequently, was talking with somebody at night timesecretly and when asked she used to say that she was talking with hercousin brother. She was talking with arrogance with the parents-in-law,but they were sustaining her behaviour. The informant was forced tostay separately from his parents. It is alleged that still applicant No.1used to take up quarrels with the informant and was filing proceedingsunder Domestic Violence Act with the help of her cousin brother-in-law,who is an Advocate. He has then stated that since last two years, prior tothe said application under Section 156(3) of the Code of CriminalProcedure dated 23.01.2024, applicant No.1 is residing separately inPune and when he made inquiry, then a person from Gulbarga is visitingher place, staying with her for 1-2 days. When he further made inquiryhe came to know about the name of that person and also got to knowthe information that he as well as applicant No.1 were in love with eachother prior to the marriage with the informant. Applicant No.1 had ranaway with that person and got married on 22.08.2011. She cohabitedwith him for about two years, but her parents had forcibly got applicantNo.1 and the said person divorced. Such decree was given by FamilyCourt, Gulbarga on 26.03.2014. Informant says that it is thedesign/conspiracy of all the applicants that applicant No.1 should[3] appln-1836-2024 with appln-4715-2024.odtperform marriage with the informant and for that purpose they hadconcealed about the first marriage of applicant No.1. In fact, if we seethe entire FIR, which is the reflection of the Criminal MiscellaneousApplication, it can be seen that it does not attract the ingredients ofSection 420 of Indian Penal Code. The ingredients of said Sectionrequire that there should be intention to deceive since beginning. Theapplicants have contended that they had given the copy of the decree tothe informant when the talks about settlement of marriage went ahead.The informant has filed petition for divorce under Section 13(1)(ia) of theHindu Marriage Act before the learned Civil Judge Senior Division,Omerga in 2021 i.e. Hindu Marriage Petition No.84 of 2021 and hiscross-examination was also over on 06.09.2022. Thereafter, after about1 ½ years, the present FIR has been filed on 17.02.2024. The cross-examination would show that applicant No.1 had filed Domestic Violenceproceedings bearing No.37 of 2020 and the present FIR is the outcomeas retaliation. She has also filed FIR invoking Section 498-A of IndianPenal Code against the informant. 5.Per contra, learned APP as well as learned Advocate Mr. RahulCheble holding for learned Advocate Mr. S. S. Gangakhedkar forrespondent No.2 strongly opposed the application and submitted that itis now a disputed fact as to whether the applicants had disclosed aboutthe earlier marriage of applicant No.1 to the informant prior to the[4] appln-1836-2024 with appln-4715-2024.odtsettlement of marriage or not. When the first marriage was not disclosedat all and its dissolution by decree dated 26.03.2014, then the consentgiven by the present informant cannot be said to be a free consent.Respondent No.2 has filed affidavit and filed the photocopies of theproceedings in M.C. No.144 of 2013 with the Family Court, Gulbarga.Copy of form No.1 Memorandum of Marriage presented to the Registrarof Marriage would show that the status of the present applicant No.1 wasshown as unmarried and not as divorcee. Therefore, this is a cheatingthat has been committed on the informant. Let there be investigation andthis cannot be taken as a fit case for quashing the FIR.6.It is to be noted that the main contention of the informant in thecriminal application and the FIR is that the applicants had concealed thefirst marriage and divorce of applicant No.1 at the time of settlement ofmarriage. We will have to consider here that the marriage betweenapplicant No.1 and respondent No.2 had taken place on 07.06.2015 andthe Miscellaneous Criminal Application under Section 156(3) of the Codeof Criminal Procedure was filed on 23.01.2024. Now, there is question ofdelay in lodging the report. Another fact that is also important is that priorto the said application under Section 156(3) of the Code of CriminalProcedure, since two years, applicant No.1 was residing separately fromrespondent No.2. If we peruse the application filed by respondent No.2under Section 156(3) of the Code of Criminal Procedure, only statement[5] appln-1836-2024 with appln-4715-2024.odtis made that the informant had gone to Police Station Omerga on13.01.2024 to lodge the FIR, but the police had not taken cognizancestating that how he could not come to know about the same till sevenyears of marriage. Certainly, from the order that was passed by thelearned Judicial Magistrate First Class, Omerga on 13.02.2023 forinvestigation under Section 156(3) of the Code of Criminal Procedure, itis not clear as to whether she had seen that the requirements of lawunder the decision in Priyanka Srivastava and another vs. State of UttarPradesh and others, (2015) 6 SCC 287 was complied with or not. Even,recently, in S. N. Vijayalakshmi and Ors. Vs. State of Karnataka and Anr.,[Criminal Appeal No.__ of 2025 (@Special Leave Petition (Criminal)No.8626 of 2024)], it has been observed that :-“We sum up our conclusions on this score as follows : (i)directions issued in Priyanka Srivastava (Supra) aremandatory; (ii) Guidelines laid down in Priyanka Srivastava(Supra) operate prospectively; (iii) Non-filing of thesupporting affidavit is a curable defect, but must be curedbefore the Magistrate passes any substantive order on thecomplaint/application, and; (iv) If the Magistrate proceedswithout the requisite affidavit, such order/any consequentialorders/proceedings can be quashed on the sole ground ofnon-compliance with Priyanka Srivastava (Supra).” 7.The steps those have been made mandatory in view of thedecision in Priyanka Srivastava (Supra) are that the person has to[6] appln-1836-2024 with appln-4715-2024.odtapproach the local police station first for lodging the FIR and if it is nottaken, then a written complaint will have to be given and if it is notregistered as FIR, then he has to approach the superior authority underSection 154(3) of the Code of Criminal Procedure and in spite of that ifno cognizance is taken, then such person can approach the Magistrateunder Section 156(3) of the Code of Criminal Procedure. The impugnedorder does not say that all this procedure was adhered to and inabsence of such inaction on the part of the police, the Magistrate is thentaking recourse to Section 156(3) of the Code of Criminal Procedure.There is absolutely no statement in the order that the learned Magistratehas considered the affidavit and also the copy of the written complaintsto the local police station and to the superior police officer. Therefore, theimpugned order suffers from the basic requirements and, therefore, asstated above in S. N. Vijaylaxmi (Supra), FIR needs to be quashed andset aside. 8.Even on merits, it can be seen that for proving an offence underSection 420 of Indian Penal Code, following ingredients will have to beshown even prima facie :-“Ingredients of Section.- The ingredients of an offence ofcheating are : (i) there should be fraudulent or dishonestinducement of a person by deceiving him, (ii) (a) theperson so deceived should be induced to deliver anyproperty to any person, or to consent that any person shall[7] appln-1836-2024 with appln-4715-2024.odtretain any property; or (b) the person so deceived shouldbe intentionally induced to do or omit to do anything whichhe would not do or omit if he were not so deceived; and(iii) in cases covered by (ii)(b), the act of omission shouldbe one which causes or is likely to cause damage or harmto the person induced in body, mind, reputation orproperty.”Now, therefore, it should have been shown by respondent No.2that there was fraudulent or dishonest inducement to him to deliverproperty by the applicant. In order to prove the offence of cheating, theintention to cheat should be since beginning i.e. inception. Even forproving the offence under Section 415 of the Indian Penal Code whichis punishable under Section 417 of the Indian Penal Code, it has to beshown that the accused persons had fraudulent or dishonest intention atthe time of making a promise with an intention to retain the property. InHira Lal Hari Lal Bhagwati vs. CBI. 2003 SCC (Cri.) 1121, followingare the observations :-“To hold a person guilty of cheating as defined underSection 415 of the Indian Penal Code, it is necessary toshow that he has fraudulent or dishonest intention at thetime of making the promise with an intention to retain theproperty. In other words, Section 415 of the Indian PenalCode which defines cheating, requires deception of anyperson (a) inducing that person to: (i) to deliver anyproperty to any person, or (ii) to consent that any personshall retain any property or (b) intentionally inducing that[8] appln-1836-2024 with appln-4715-2024.odtperson to do or omit to do anything which he would not door omit if he were not so deceived and which act oromission causes or is likely to cause damage or harm tothat person, anybody's mind, reputation or property. In viewof the aforesaid provisions, the appellants state that personmay be induced fraudulently or dishonestly to deliver anyproperty to any person. The second class of acts set forthin the Section is the doing or omitting to do anything whichthe person deceived would not do or omit to do if he werenot so deceived. In the first class of cases, the inducingmust be fraudulent or dishonest. In the second class ofacts, the inducing must be intentional but not fraudulent ordishonest.”Further, in Hridaya Ranjan Prasad Verma vs. State of Bihar,AIR 2000 SC 2341, it has been held as follows :“Section 415, I.P.Code which defines cheating requires: (1)deception of any person; (2)(a) fraudulently or dishonestlyinducing that person; (i) to deliver any property to anyperson; or (ii) to consent that any person shall retain anyproperty; or (b) intentionally inducing that person to do oromit to do anything which he would not do or omit if hewere not so deceived, and which act or omission causes oris likely to cause damage or harm to that person in body,mind, reputation or property.” 9.Now, the question here is the form No.1 Memorandum of Marriagestating that applicant No.1 was unmarried was the intentional act andwould amount to offence under Section 420 of Indian Penal Code. Tillapplicant No.1 got separated two years prior to the application, it[9] appln-1836-2024 with appln-4715-2024.odtappears that the informant had no knowledge at all. In fact, the DomesticViolence proceedings were filed in 2020 itself. Therefore, it is hard tobelieve that two years thereafter also she was residing with theinformant. Then in that case, she had separated from him four yearsprior to the application. It appears that the said application and the FIR isnothing but the act in revenge i.e. act of vengeance. Therefore, on thesaid count also, this is a fit case where this Court should exercise itspowers under Section 482 of the Code of Criminal Procedure. Hence,the following order :-ORDERI)Criminal Application stands allowed.II)The FIR vide Crime No.102 of 2024 dated 17.02.2024registered with Omerga Police Station, District Dharashiv(Osmanabad) for the offences punishable under Sections 120-B,420 read with Section 34 of Indian Penal Code, stands quashedand set aside as against the present applicants. [ SUSHIL M. GHODESWAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]