CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: SEPTEMBER 03, 2008
Monica and others
.....Petitioners
VERSUS
State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Sanjay Gupta, Advocate,
for the petitioners.
Mr. A. S. Brar, DAG, Punjab,
for the State.
Mr. R. P. Dhir, Advocate,
for the complainant.
****
RANJIT SINGH, J.
A young girl, at the thresh hold of her life, left in lurch after
marriage by her NRI husband, is at the receiving end at the hands of
insensitive police. Police seems to be at it in this case and have
recorded offence of cheating against a lady on the asking of her
father-in-law. It is difficult to expect sensitive approach from the
police. The police perhaps know how to be ruthless.
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 2 }:
Petitioner No.1, a young girl, who was married with much
fanfare by her parents, petitioner Nos.2 and 3 and her brother
Sandeep Kumar (petitioner No.4), is being made to face criminal
charge of cheating under Section 420 IPC. The impugned FIR has
been lodged against the petitioners by Ravinder Kumar Kohli, father-
in-law of petitioner No.1.
Petitioner No.1 married Raman Kumar son of respondent
No.2 on 22.1.2004 at Hoshiarpur. The petitioners claim to have given
sufficient dowry according to their capacity and had performed the
marriage at Navjeet Farm, Una Road, Hoshiarpur. Husband of
petitioner No.1 was living in Italy at the time of marriage. Petitioner
No.1 would obviously expect to join the company of her husband in
Italy. Raman Kumar left for Italy just after twenty days of marriage,
leaving the young girl at the mercy of his parents. She alleges that
the in-laws started taunting her for bringing less dowry and also
demanded more dowry. Petitioner No.1 also complains to have been
given beating. She ultimately lodged a complaint against her in-laws
leading to registration of an FIR No.419 dated 22.10.2005, under
Sections 406/498-A IPC.
Upon registration of a criminal case, respondent No.2 and
other members of his family approached the petitioners for
compromise. For all this time, husband of petitioner No.1 did not look
back to enquire about his young wife left in the lurch. Petitioner No.1
must have realised that her husband is least concerned about her.
Forced by circumstances, the petitioners reached a compromise with
respondent No.2. As per the terms, respondent No.2 agreed to pay a
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 3 }:
sum of Rs.10.00 lacs to petitioner No.1 as full and final settlement
towards maintenance and permanent alimony. On her part, petitioner
No.1 agreed to divorce Raman Kumar on the basis of mutual
consent. Sum of Rs.7.00 lacs was paid to petitioner No.1 with an
assurance that remaining sum of Rs.3.00 lacs would be paid before
the court when Raman Kumar Kohli would return to India to file a
divorce petition on the basis of mutual consent. This compromise
between the parties appears to have faced rough weather mainly
because the husband of petitioner No.1 has not so far returned from
Italy to file a divorce petition as agreed.
Without making their son to return, respondent No.2 and
his family filed a petition for quashing of FIR No.419 dated
22.10.2005 before this court. In response to the notice, petitioner
No.1 appeared before this court maintaining that Raman Kohli had
agreed to pay sum of Rs.10.00 lacs and that balance amount of
Rs.3.00 lacs was still due. Petitioner No.1 further disclosed that
Raman Kumar Kohli had not come forward to file a divorce petition
on the ground of mutual consent as was agreed to. Respondent No.2
had then got this petition dismissed as withdrawn on 8.3.2007.
Having done so, respondent No.2 appears to have found
a convenient police to create trouble for the petitioners. He lodged an
FIR on 8.8.2007 making allegation of cheating against the
petitioners. Ever obliging police (most probably on some
consideration) readily agreed to register the case against the
petitioners under Section 420/34 IPC. Allegations are that petitioners
had entered into a compromise with respondent No.2 but had not
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 4 }:
given consent to get the FIR quashed before the High Court and so it
amounts to cheating. Somebody would have to stretch one’s
imagination to find as to how the allegations contained in the FIR
would amount to cheating.
Petitioners are still sticking to the agreement, but have
alleged that the part expected from respondent No.2 and his son is
not being performed. Even if somebody was to back out of
agreement on any ground whatsoever, it would be difficult to allege
an offence of cheating. Loo: During the course of arguments, it is
brought to my notice that the Investigating Officer in this case had
seized the bank account of the petitioners where the amount is said
to have been deposited by the petitioners. When asked to justify this
action on the part of Investigating Officer and source of his power in
this regard, the counsel were unable to address any argument or
point out any provision which would entitle the Investigating Officer to
so act. Rather the State counsel was forthright and candid in saying
that the Investigating Officer had acted beyond his power and
perhaps beyond the call of his duties. This conduct of the
Investigating Officer would give some indication to appreciate the
partisan approach of the police to register these criminal proceedings
against petitioner No.1.
A victim seems to have been victimised instead of being
saved. At this young age, left after twenty days of marriage, she is fighting
a legal battle not only to protect her liberty, life, but her honour and dignity.
Respondent No.2 is more concerned with his seven lacs than the life of this
young girl which stands ruined by the action of his son. No amount of
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 5 }:
compensation can restore premarital status of petitioner No.1 and wash
the stigma and scar that this marriage would leave on her life.
Reply on behalf of the State has been filed. Respondent No.2
has also filed reply which has been taken on record today. The stand of
the State is that version of the petitioners was investigated and has
been found to be false. It is stated that after completion of
investigation, the challan is going to be presented in the court of
Chief Judicial Magistrate, Hoshiarpur. Prayer is accordingly made for
dismissing the petition. Insensitivity on the part of police is seen to be
believed. What investigation they have done to conclude that
allegations amount to cheating?. Nothing is forthcoming in this
regard. No justification is found in the reply to indicate that refusal to
withdraw from the compromise or by not agreering to withdraw
criminal proceedings would amount to cheating. The police has relied
upon the convenient opinion of D.A. (Legal) to justify their action in
continuing these proceedings against the petitioners. Respondent
No.2 on his part has based his stand on the compromise to say that
petitioners have received a sum of Rs.7.00 lacs and have not been
willing to get the proceedings quashed against him, which would
amount to cheating. This is stated to be the final amount settled
which is disputed by the petitioners.
District Attorney and police officer have apparently not applied
their mind minutely to the case. If they had done so, they would have
noticed that some clauses of the agreement reached between the parties
are not legally enforceable. A clause in the agreement that the parties can
marry on their own free will and no party will raise any objection is certainly
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 6 }:
legally unsound. Can the parties do so without obtaining a legal divorce?.
How this clause of the agreement could be enforced, in the absence of a
valid divorce, can be explained only by the investigating agency. Petitioner
No.1 is, thus, justified in insisting on getting divorce first. She wants
to avoid further complication in her life. It is also worth notice that the
petitioners till date had never denied the execution of an agreement
and so also the payment received by them. The stand of the
petitioners before this court now and earlier had been that a sum of
Rs.3.00 lacs is still due which is to be paid at the time of filing of
divorce petition on the ground of mutual consent. It is not disputed by
respondent No.2 that his son has never returned from Italy to file a
divorce petition. He has also not come forward to say that this was
not so agreed. Who is then cheating whom- may be a question.
Taking the totality of the circumstances and the
background of the case into consideration, the allegations of
cheating certainly would not be made out against the petitioners.
There is no explanation forthcoming as to on what basis the parents
of petitioner No.1 or his brother is being accused of cheating. Merely
adding of Section 34 IPC would not make them criminally liable for
cheating.
The offence of cheating, as defined in Section 415 IPC,
can be made out if:
(i) there is fraudulent or dishonest inducement of a
person by deceiving him;
(ii) the person so deceived should be induced to deliver
any property to any person or to consent that any person
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 7 }:shall retain any property or the person so deceived should
be intentionally induced to do or omit to do any thing
which he would not do or omit if he was not so deceived;
(iii)the act of omission (as noticed above ) should be one
which causes or is likely to cause damage or harm to
the person induced in body, mind, reputation or fraud.
The facts and circumstances as noticed in this case
would by no stretch of imagination, seem to reveal an offence of
cheating. In order to constitute an offence of cheating, the intention
to deceive should be in existence at the time when inducement was
made. It is necessary to show that a person had fraudulent or
dishonest intention at the time of making a promise and that mere
failure to keep up a promise subsequently cannot be presumed as an
act leading to cheating. Reference in this regard can be made to the
judgment in the cases of S.W.Palanitkar v. State of Bihar, 2001 (4)
RCR (Criminal) 572, Bisham Dev v. State of Haryana (Pb. & Hy.),
1991 (3) RCR (Crl.) 555 and Hakam Singh v. The State and others
(Pb.& Hy.), 1984(2) 372. Further in Hridaya Ranjan Prasad Verma
and others v. State of Bihar and another, 2002 (2) RCR (Crl.) 484,
the Hon’ble Supreme Court observed as under :-
” In determining the question it has to be kept in mind that
the distinction between mere breach of contract and the
offence of cheating is a fine one. It depends upon the
intention of the accused at the time of inducement which
may be judged by his subsequent conduct for this
subsequent conduct is not the sole test. Mere breach of
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 8 }:contract cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is shown
right at the beginning of the transaction, that is the time
when the offence is said to have been committed.
Therefore it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is
necessary to show that he had fraudulent or dishonest
intention at the time of making the promise. From his
mere failure to keep up promise subsequently such a
culpable intention right at the beginning, that is, when he
made the promise cannot be presumed.”
Reliance can also be placed on the observations made in
the case of Bisham Dev v. State of Haryana, 1991(3) Recent
Criminal Reports 555. It is held in this case that where an
agreement to sell land had been entered into but was not executed,
apparently due to hike in prices and land was sold to some other
person, then the offence of cheating was not made out. It was further
held that there was no indication in the FIR that the landlord had the
intention to cheat the complainant at the outset when he executed
this agreement. Similarly, in this case also there is no indication from
the complaint that petitioners had carried any such intention at the
time of executing this agreement. The allegations of any fraudulent
and dishonest inducement of respondent No.2 on the part of
petitioners or that petitioners had in any manner deceived or induced
respondent No.2 to deliver any property are clearly lacking and
absent in this case. The observations made by the Hon’ble Supreme
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 9 }:
Court in the case of Panjab National Bank v. S.P.Sinha, 1993
(Supp.)(1) SCC 449 that a judicial process should not be an
instrument of oppression or needless harassment would apply in this
case. This FIR is nothing but an instrument of oppression or
needless harassment of the petitioners at the instance of respondent
No.2 with the active connivance of the police, especially the
Investigating Officer. Even if one was to take uncontroverted
allegations made in the complaint, these would not prima facie
establish that the petitioners have committed an offence of cheating.
It is basically a failure of agreement between petitioner No.1 and
respondent No.2. The reasons in this regard obviously are
attributable to a conduct on the part of son of respondent No.2.
The petitioners are still ready to adhere to the terms of
the agreement but are justified in raising a grievance that petitioner
No.1 should get a divorce from son of respondent No.2 to start her
life afresh. Apparently, it seems that the respondents are the one
who are not adhering to the spirit of the agreement and want to take
benefit of getting the proceedings against them quashed without
making a move for divorce. The clause of the agreement leaving
liberty for the parties to get married obviously is legally unsound and
would be un-enforceable in law. Accordingly, I am of the considered
opinion that no case of cheating by the petitioners is made out. The
recording of this FIR by the police is apparently is not free from some
motive which could be extraneous also. The Investigating Officer has
obviously shown a keen interest in this case and has taken pains to
act illegally against the petitioners in seizing their bank account for
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M) :{ 10 }:
which he would not have any power. His conduct needs to be
scanned. While allowing this petition and quashing the FIR against
the petitioners, direction would go to the Senior Superintendent of
Police, Hoshiarpur to investigate this aspect of the matter as to how
the Investigating Officer had been so insensitive in recording this
criminal proceedings against petitioner No.1, who has been a victim
at the hands of respondent No.2, but has been made to face criminal
proceedings. Senior Superintendent of Police would hold an enquiry
into this aspect and separately intimate the outcome thereof to this
court by moving appropriate application in this regard within a period
of three months from the date of the receipt of the copy of this order.
The present petition is allowed and FIR and all
consequential proceedings held against the petitioners shall stand
quashed.
September 03, 2008 ( RANJIT SINGH ) ramesh JUDGE