Mere Refusal To Marry Does Not Constitute Offence Of Cheating Unless Ingredients U/S 90 Of IPC Are Met: Gauhati High Court

The Gauhati High Court recently set aside the judgment and sentence order passed by a Trial Court under Section 417 (Punishment for Cheating) of IPC on the ground that mere refusal to marry would not constitute an offence under Section 417 of IPC until and unless the requirement under Section 90 of IPC is established by the prosecution.The single judge bench comprising Justice Arun Dev Choudhury was hearing a Criminal Revision Petition under Sections 397 and 401 of the CrPC assailing the judgment and sentence order dated December 14, 2010, passed by the Chief Judicial Magistrate (CJM), Morigaon, whereby the petitioner-accused was convicted under Section 417 of IPC and was sentenced to undergo imprisonment for 1 year and to pay a fine of Rs. 1,000/-.The petitioner further challenged the appellate judgement and order dated April 09, 2012, passed by Sessions Judge, Morigaon which upheld the judgment and sentence order passed by the Trial Court.The case of the prosecution was that the complainant-victim was in a love relationship with the accused-petitioner since the year 2004-05. It was alleged that accused-petitioner promised to marry her and had sexual intercourse with her and in the year 2007 she became pregnant. It was further alleged that the accused-petitioner asked the victim to abort her child and gave assurance that he would marry her on 1st week of the month of Magh and she aborted her child. Thereafter, on January 30, 2008, the accused-petitioner expressed his disinclination to marry her and asked her to get married to another person.The victim-complainant lodged a complaint before the CJM, Morigaon. The CJM after taking an initial statement of the complainant, took cognizance of the offence against the accused-petitioner under Section 417 IPC and a summon was issued against him. The Trial Court convicted and sentenced the accused-petitioner as mentioned above.The Counsel appearing for the petitioner submitted that the prosecution had failed to bring home the charge under Section 417 of IPC as initial deception is missing in the instant case and the complainant being a major, had herself consented to their intimate and physical relationship out of her own sweet will inasmuch as they were in a relationship of more than 4 years. It was further argued that the prosecution has failed to prove miserably by way of cogent evidence that the consent by the complainant to the sexual intercourse was given under misconception of fact, i.e., promise to marry but for the fact that she also desired for it as they were in a love relationship for 4 years. Therefore, it was stated that the petitioner ought not to have been convicted under Section 417 of IPC for cheating based on the evidence adduced by the prosecution.The Amicus Curiae submitted that the prosecution through the evidence of the victim and other witnesses has been able to prove that the promise to marry was false and that the accused made such a promise with an intention not to abide by it but to deceive the victim and convinced her for engaging in the sexual relationship. Thus, the misconception of fact, which vitiated the consent of the victim had duly been proved by the prosecution beyond any reasonable doubt. The Court noted that the victim and the accused were in a love relationship for more than 3-4 years. “According to the victim, the first sexual relationship was occurred in the year 2004 and it continued and she got pregnant in the year 2007. In her deposition, she admitted that they had love affairs since 2004-05 and they first physically met after two years of their love affairs and she conceived in the year 2007. The other witnesses testified as regards their knowledge of the love affairs between the accused and the victim. In her testimony the PW1 even deposed that on the advice of the accused, she got her pregnancy aborted,” the Court observed.It was further noted by the Court that there is no evidence to establish or suggest that the aforesaid long love relationship and the physical relationship were under misconception of fact or that the consent of the victim was based on fraudulent representation of marriage. “This Court has also not found anything to indicate from the available materials even suggesting that at the inception, the accused did not intend to marry the victim. What is discernible is that the relation between them broke down. Therefore, in the considered opinion of this Court, in absence of any clinching evidence to prove that the victim, PW-1 had continued her relationship with the accused for 4 years on a misconception of fact, the accused could not have been convicted for commission of offence under Section 417 IPC, more particularly, in view of the settled propositions of law that mere refusal to marry would not constitute offence under Section 417 of the IPC until and unless the requirement under Section 90 IPC is established by the prosecution, which in the case, the prosecution has failed,” the Court...

Mere Refusal To Marry Does Not Constitute Offence Of Cheating Unless Ingredients U/S 90 Of IPC Are Met: Gauhati High Court

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