Ayyub & Others vs State of Madhya Pradesh

This criminal revision filed on behalf of petitioners/accused persons Sadhna Jain and Satish Jain, is directed against the order dated 07.11.2016; whereby a charge under section 417 read with section 34 of the Indian Penal Code, was framed against them by I Additional Sessions Judge, Dindori.

As per the prosecution case, the prosecutrix is a 28 years old educated girl working as a computer operator. Coaccused Sourabh, who is son of petitioners Sadhna and Satish came in contact with her in the year 2010 in connection with official business. Subsequently, he established physical relations with her in the year December, 2012 on false promise of marriage. In the year 2013, there was a proposal of marriage of the prosecutrix but accused Sourabh Jain threatened her that if she married elsewhere, he would commit suicide and blame her for the same. The prosecutrix had informed present petitioners Sadhna and Satish about their affair; whereon, they her asked her to wait for 3 years and assured that they would marry Sourabh to her. Thereafter, the prosecutrix and Sourabh continued their physical relationship till the year 2016. In December, 2015, the prosecutrix became pregnant, as a result of her physical relations with Sourabh; however, at the instances of Sourabh she got her child aborted in February, 2016. On 17.05.2016, she learnt that a proposal of marriage of Sourabh has been received from Devendra Nagar. Consequently, on 18.05.2016, she went to Sourabh''s place; whereon, Sourabh and his parents accused her of loose moral character and told that Sourabh would not marry her. Thereafter, all three of them beat her up and pushed her out of their home. They threatened that if she reported the matter to police they would kill her. Sourabh is demanding Rs.50,00,000/- and promising to marry her after 2 years. Thus, co-accused Sourabh and petitioners Sadhna and Satish have conspired and cheated her resulting in loss of her reputation.

Learned counsel for the petitioners has assailed the order framing charge under section 417 read with section 34 of the Indian Penal Code mainly on the ground that if all the allegations made by the prosecutrix against the petitioners are taken at their face value and presumed to be true, no case would be made out against the petitioners under section 417 read with section 34 of the Indian Penal Code.

Learned panel lawyer for the respondent/State on the other hand has opposed the criminal revision.

A perusal of the statement given by the prosecutrix to the police on 23.07.2016 reveals that she was acquainted with the accused Sourabh since the year 2010. She was in physical relationship with him since December, 2012. She has stated that when Sourabh threatened to commit suicide, she informed her parents about their affair for the first time; however, no date and time has been given as to when she had informed the present petitioners regarding her affair with Sourabh. Presumably, it was done some time in the year 2013 or thereafter; whereas, she was already in physical relationship with their son since December, 2012. It is true that the petitioners are said to have asked the prosecutrix to wait for a period of three years and had promised to get their son married to her thereafter; however, there is nothing on record to suggest that at that time, they had no intention of getting their son married to the prosecutrix. There is nothing on record to indicate that they had conspired with their son and made a false promise so that their son could continue to physically exploit the prosecutrix. In fact, it appears highly improbable that any parent would enter into a conspiracy with their son for such a purpose.

After such promise, the prosecutrix became pregnant from Sourabh in December, 2015 and had to undergo abortion. After that on 18.05.2016, the present petitioners declined to get their son married to her.

It is settled position of law that in order to constitute an offence of cheating, it is imperative that the intention of cheating must be present at the inception. In the instant case, the petitioners had promised the prosecutrix to get their son married to her sometime in the year 2013 and had asked her to wait for three years. Thereafter, the prosecutrix continued in physical relationship with their son and as a result, she got pregnant in December, 2015. In the Indian Context, the pregnancy of an unmarried girl before marriage, cannot be brushed as an insignificant event. The petitioners are said to have rejected the match, admittedly after the pregnancy and abortion of the prosecutrix. It is true that their son was responsible for the pregnancy. Therefore, the alleged conduct of the petitioners was morally wrong. However, such refusal to fulfill the promise would not lead the Court to conclusion, even prima facie, that the petitioners had cheated the prosecutrix when they had first promised to get their son married to her. In any case, the fulfillment of promise of marriage was dependent upon the wishes of their son. Thus, even at the stage of charge, it cannot be presumed that from the outset, they had intended to dishonour their promise of getting their son married to the prosecutrix. If due to subsequent supervening circumstances they declined to get their son married to her, it cannot be said that offence of cheating as defined under section 417 of the Indian Penal Code would be constituted.

It has been held by the Supreme Court in the case of State of Maharashtra vs Priya Sharan Maharaj and others, 1997(4) SCC 393 that: "At Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

Likewise, in the case of Niranjan Singh Karam Singh Punjabi Vs. State of Maharashtra and Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962, the Supreme Court has held that: "It seems well settled that at the Ss.227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

In the case of Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, the Supreme Court has held that: "In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

On the basis of foregoing discussion, the Court is of the view that the charge against petitioners Sadhna Jain and Satish Jain under section 417 read with section 34 of the Indian Penal Code is not made out.

Consequently, this criminal revision succeeds. The order dated 07.11.2016 so far as it relates to framing of charge against petitioners Sadhna and Satish under section 417 read with section 34 of the Indian Penal Code is concerned, is set aside. Petitioners Sadhna and Satish are discharged in respect of the offence punishable under sections 417 read with section 34 of the Indian Penal Code.

Learned trial Court is directed to consider the matter with regard to charge afresh and after giving the petitioners an opportunity of being heard, frame such charge other than the one under section 417 or 417 read with section 34 of the Indian Penal Code, if any, and proceed with the matter accordingly.