{"id":211941,"date":"2008-09-03T00:00:00","date_gmt":"2008-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/monica-and-others-vs-state-of-punjab-and-another-on-3-september-2008"},"modified":"2015-11-19T03:59:17","modified_gmt":"2015-11-18T22:29:17","slug":"monica-and-others-vs-state-of-punjab-and-another-on-3-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/monica-and-others-vs-state-of-punjab-and-another-on-3-september-2008","title":{"rendered":"Monica And Others vs State Of Punjab And Another on 3 September, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Monica And Others vs State Of Punjab And Another on 3 September, 2008<\/div>\n
CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                                :{ 1 }:\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH\n\n\n                    DATE OF DECISION: SEPTEMBER 03, 2008\n\n             Monica and others\n\n                                                             .....Petitioners\n\n                                         VERSUS\n\n             State of Punjab and another\n\n                                                              ....Respondents\n\n\n\nCORAM:- HON'BLE MR.JUSTICE RANJIT SINGH\n\n1. Whether Reporters of local papers may be allowed to see the judgement?\n2. To be referred to the Reporters or not?\n3. Whether the judgment should be reported in the Digest?\n\n\n\nPRESENT:             Mr. Sanjay Gupta, Advocate,\n                     for the petitioners.\n\n                     Mr. A. S. Brar, DAG, Punjab,\n                     for the State.\n\n                     Mr. R. P. Dhir, Advocate,\n                     for the complainant.\n\n                                  ****\n\nRANJIT SINGH, J.\n<\/pre>\n
             A young girl, at the thresh hold of her life, left in lurch after<\/p>\n
marriage by her NRI husband, is at the receiving end at the hands of<\/p>\n
insensitive police. Police seems to be at it in this case and have<\/p>\n
recorded offence of cheating against a lady on the asking of her<\/p>\n
father-in-law. It is difficult to expect sensitive approach from the<\/p>\n
police. The police perhaps know how to be ruthless.\n<\/p>\n
 CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                     :{ 2 }:\n<\/p>\n
            Petitioner No.1, a young girl, who was married with much<\/p>\n
fanfare by her parents, petitioner Nos.2 and 3 and her brother<\/p>\n
Sandeep Kumar (petitioner No.4), is being made to face criminal<\/p>\n
charge of cheating under Section 420 IPC. The impugned FIR has<\/p>\n
been lodged against the petitioners by Ravinder Kumar Kohli, father-<\/p>\n
in-law of petitioner No.1.\n<\/p>\n
            Petitioner No.1 married Raman Kumar son of respondent<\/p>\n
No.2 on 22.1.2004 at Hoshiarpur. The petitioners claim to have given<\/p>\n
sufficient dowry according to their capacity and had performed the<\/p>\n
marriage at Navjeet Farm, Una Road, Hoshiarpur. Husband of<\/p>\n
petitioner No.1 was living in Italy at the time of marriage. Petitioner<\/p>\n
No.1 would obviously expect to join the company of her husband in<\/p>\n
Italy. Raman Kumar left for Italy just after twenty days of marriage,<\/p>\n
leaving the young girl at the mercy of his parents. She alleges that<\/p>\n
the in-laws started taunting her for bringing less dowry and also<\/p>\n
demanded more dowry. Petitioner No.1 also complains to have been<\/p>\n
given beating. She ultimately lodged a complaint against her in-laws<\/p>\n
leading to registration of an FIR No.419 dated 22.10.2005, under<\/p>\n
Sections 406\/498-A IPC.\n<\/p>\n
            Upon registration of a criminal case, respondent No.2 and<\/p>\n
other members of his family approached the petitioners for<\/p>\n
compromise. For all this time, husband of petitioner No.1 did not look<\/p>\n
back to enquire about his young wife left in the lurch. Petitioner No.1<\/p>\n
must have realised that her husband is least concerned about her.<\/p>\n
Forced by circumstances, the petitioners reached a compromise with<\/p>\n
respondent No.2. As per the terms, respondent No.2 agreed to pay a
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                          :{ 3 }:\n<\/p>\n
sum of Rs.10.00 lacs to petitioner No.1 as full and final settlement<\/p>\n
towards maintenance and permanent alimony. On her part, petitioner<\/p>\n
No.1 agreed to divorce Raman Kumar on the basis of mutual<\/p>\n
consent. Sum of Rs.7.00 lacs was paid to petitioner No.1 with an<\/p>\n
assurance that remaining sum of Rs.3.00 lacs would be paid before<\/p>\n
the court when Raman Kumar Kohli would return to India to file a<\/p>\n
divorce petition on the basis of mutual consent. This compromise<\/p>\n
between the parties appears to have faced rough weather mainly<\/p>\n
because the husband of petitioner No.1 has not so far returned from<\/p>\n
Italy to file a divorce petition as agreed.\n<\/p>\n
               Without making their son to return, respondent No.2 and<\/p>\n
his family filed a petition for quashing of FIR No.419 dated<\/p>\n
22.10.2005 before this court. In response to the notice, petitioner<\/p>\n
No.1 appeared before this court maintaining that Raman Kohli had<\/p>\n
agreed to pay sum of Rs.10.00 lacs and that balance amount of<\/p>\n
Rs.3.00 lacs was still due. Petitioner No.1 further disclosed that<\/p>\n
Raman Kumar Kohli had not come forward to file a divorce petition<\/p>\n
on the ground of mutual consent as was agreed to. Respondent No.2<\/p>\n
had then got this petition dismissed as withdrawn on 8.3.2007.<\/p>\n
               Having done so, respondent No.2 appears to have found<\/p>\n
a convenient police to create trouble for the petitioners. He lodged an<\/p>\n
FIR on 8.8.2007 making allegation of cheating against the<\/p>\n
petitioners.     Ever   obliging   police     (most   probably   on        some<\/p>\n
consideration) readily agreed to register the case against the<\/p>\n
petitioners under Section 420\/34 IPC. Allegations are that petitioners<\/p>\n
had entered into a compromise with respondent No.2 but had not
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                              :{ 4 }:\n<\/p>\n
given consent to get the FIR quashed before the High Court and so it<\/p>\n
amounts to cheating. Somebody would have to stretch one’s<\/p>\n
imagination to find as to how the allegations contained in the FIR<\/p>\n
would amount to cheating.\n<\/p>\n
             Petitioners are still sticking to the agreement, but have<\/p>\n
alleged that the part expected from respondent No.2 and his son is<\/p>\n
not being performed. Even if somebody was to back out of<\/p>\n
agreement on any ground whatsoever, it would be difficult to allege<\/p>\n
an offence of cheating. Loo: During the course of arguments, it is<\/p>\n
brought to my notice that the Investigating Officer in this case had<\/p>\n
seized the bank account of the petitioners where the amount is said<\/p>\n
to have been deposited by the petitioners. When asked to justify this<\/p>\n
action on the part of Investigating Officer and source of his power in<\/p>\n
this regard, the counsel were unable to address any argument or<\/p>\n
point out any provision which would entitle the Investigating Officer to<\/p>\n
so act. Rather the State counsel was forthright and candid in saying<\/p>\n
that the Investigating Officer had acted beyond his power and<\/p>\n
perhaps beyond the call of his duties. This conduct of the<\/p>\n
Investigating Officer would give some indication to appreciate the<\/p>\n
partisan approach of the police to register these criminal proceedings<\/p>\n
against petitioner No.1.\n<\/p>\n
             A victim seems to have been victimised instead of being<\/p>\n
saved. At this young age, left after twenty days of marriage, she is fighting<\/p>\n
a legal battle not only to protect her liberty, life, but her honour and dignity.<\/p>\n
Respondent No.2 is more concerned with his seven lacs than the life of this<\/p>\n
young girl which stands ruined by the action of his son. No amount of
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                            :{ 5 }:\n<\/p>\n
compensation can restore premarital status of petitioner No.1 and wash<\/p>\n
the stigma and scar that this marriage would leave on her life.<\/p>\n
            Reply on behalf of the State has been filed. Respondent No.2<\/p>\n
has also filed reply which has been taken on record today. The stand of<\/p>\n
the State is that version of the petitioners was investigated and has<\/p>\n
been found to be false. It is stated that after completion of<\/p>\n
investigation, the challan is going to be presented in the court of<\/p>\n
Chief Judicial Magistrate, Hoshiarpur. Prayer is accordingly made for<\/p>\n
dismissing the petition. Insensitivity on the part of police is seen to be<\/p>\n
believed. What investigation they have done to conclude that<\/p>\n
allegations amount to cheating?. Nothing is forthcoming in this<\/p>\n
regard. No justification is found in the reply to indicate that refusal to<\/p>\n
withdraw from the compromise or by not agreering to withdraw<\/p>\n
criminal proceedings would amount to cheating. The police has relied<\/p>\n
upon the convenient opinion of D.A. (Legal) to justify their action in<\/p>\n
continuing these proceedings against the petitioners. Respondent<\/p>\n
No.2 on his part has based his stand on the compromise to say that<\/p>\n
petitioners have received a sum of Rs.7.00 lacs and have not been<\/p>\n
willing to get the proceedings quashed against him, which would<\/p>\n
amount to cheating. This is stated to be the final amount settled<\/p>\n
which is disputed by the petitioners.\n<\/p>\n
            District Attorney and police officer have apparently not applied<\/p>\n
their mind minutely to the case. If they had done so, they would have<\/p>\n
noticed that some clauses of the agreement reached between the parties<\/p>\n
are not legally enforceable. A clause in the agreement that the parties can<\/p>\n
marry on their own free will and no party will raise any objection is certainly
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                          :{ 6 }:\n<\/p>\n
legally unsound. Can the parties do so without obtaining a legal divorce?.<\/p>\n
How this clause of the agreement could be enforced, in the absence of a<\/p>\n
valid divorce, can be explained only by the investigating agency. Petitioner<\/p>\n
No.1 is, thus, justified in insisting on getting divorce first. She wants<\/p>\n
to avoid further complication in her life. It is also worth notice that the<\/p>\n
petitioners till date had never denied the execution of an agreement<\/p>\n
and so also the payment received by them. The stand of the<\/p>\n
petitioners before this court now and earlier had been that a sum of<\/p>\n
Rs.3.00 lacs is still due which is to be paid at the time of filing of<\/p>\n
divorce petition on the ground of mutual consent. It is not disputed by<\/p>\n
respondent No.2 that his son has never returned from Italy to file a<\/p>\n
divorce petition. He has also not come forward to say that this was<\/p>\n
not so agreed. Who is then cheating whom- may be a question.<\/p>\n
            Taking the totality of the circumstances and the<\/p>\n
background of the case into consideration, the allegations of<\/p>\n
cheating certainly would not be made out against the petitioners.<\/p>\n
There is no explanation forthcoming as to on what basis the parents<\/p>\n
of petitioner No.1 or his brother is being accused of cheating. Merely<\/p>\n
adding of Section 34 IPC would not make them criminally liable for<\/p>\n
cheating.\n<\/p>\n
            The offence of cheating, as defined in Section 415 IPC,<\/p>\n
can be made out if:\n<\/p>\n
            (i)   there is fraudulent or dishonest inducement of a<\/p>\n
            person by deceiving him;<\/p>\n
             (ii) the person so deceived should be induced to deliver<\/p>\n
            any property to any person or to consent that any person
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                     :{ 7 }:\n<\/p>\n
           shall retain any property or the person so deceived should<\/p>\n
           be intentionally induced to do or omit to do any thing<\/p>\n
           which he would not do or omit if he was not so deceived;<\/p>\n<\/blockquote>\n
           (iii)the act of omission (as noticed above ) should be one<\/p>\n
             which causes or is likely to cause damage or harm to<\/p>\n
             the person induced in body, mind, reputation or fraud.<\/p><\/blockquote>\n
           The facts and circumstances as noticed in this case<\/p>\n
would by no stretch of imagination, seem to reveal an offence of<\/p>\n
cheating. In order to constitute an offence of cheating, the intention<\/p>\n
to deceive should be in existence at the time when inducement was<\/p>\n
made. It is necessary to show that a person had fraudulent or<\/p>\n
dishonest intention at the time of making a promise and that mere<\/p>\n
failure to keep up a promise subsequently cannot be presumed as an<\/p>\n
act leading to cheating. Reference in this regard can be made to the<\/p>\n
judgment in the cases of S.W.Palanitkar v. State of Bihar, 2001 (4)<\/p>\n
RCR (Criminal) 572, Bisham Dev v. State of Haryana (Pb. & Hy.),<\/p>\n
1991 (3) RCR (Crl.) 555 and Hakam Singh v. The State and others<\/p>\n
(Pb.& Hy.), 1984(2) 372. Further in Hridaya Ranjan Prasad Verma<\/p>\n
and others v. State of Bihar and another, 2002 (2) RCR (Crl.) 484,<\/p>\n
the Hon’ble Supreme Court observed as under :-\n<\/p>\n
           ” In determining the question it has to be kept in mind that<\/p>\n
           the distinction between mere breach of contract and the<\/p>\n
           offence of cheating is a fine one. It depends upon the<\/p>\n
           intention of the accused at the time of inducement which<\/p>\n
           may be judged by his subsequent conduct for this<\/p>\n
           subsequent conduct is not the sole test. Mere breach of
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                      :{ 8 }:\n<\/p><\/blockquote>\n
           contract cannot give rise to criminal prosecution for<\/p>\n
           cheating unless fraudulent or dishonest intention is shown<\/p>\n
           right at the beginning of the transaction, that is the time<\/p>\n
           when the offence is said to have been committed.<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
           Therefore it is the intention which is the gist of the<\/p>\n
           offence. To hold a person guilty of cheating it is<\/p>\n
           necessary to show that he had fraudulent or dishonest<\/p>\n
           intention at the time of making the promise. From his<\/p>\n
           mere failure to keep up promise subsequently such a<\/p>\n
           culpable intention right at the beginning, that is, when he<\/p>\n
           made the promise cannot be presumed.”<\/p>\n
           Reliance can also be placed on the observations made in<\/p>\n
the case of Bisham Dev v. State of Haryana, 1991(3) Recent<\/p>\n
Criminal Reports 555. It is held in this case that where an<\/p>\n
agreement to sell land had been entered into but was not executed,<\/p>\n
apparently due to hike in prices and land was sold to some other<\/p>\n
person, then the offence of cheating was not made out. It was further<\/p>\n
held that there was no indication in the FIR that the landlord had the<\/p>\n
intention to cheat the complainant at the outset when he executed<\/p>\n
this agreement. Similarly, in this case also there is no indication from<\/p>\n
the complaint that petitioners had carried any such intention at the<\/p>\n
time of executing this agreement. The allegations of any fraudulent<\/p>\n
and dishonest inducement of respondent No.2 on the part of<\/p>\n
petitioners or that petitioners had in any manner deceived or induced<\/p>\n
respondent No.2 to deliver any property are clearly lacking and<\/p>\n
absent in this case. The observations made by the Hon’ble Supreme
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                     :{ 9 }:\n<\/p><\/blockquote>\n
Court in the case of Panjab National Bank v. S.P.Sinha, 1993<\/p>\n
(Supp.)(1) SCC 449 that a judicial process should not be an<\/p>\n
instrument of oppression or needless harassment would apply in this<\/p>\n
case. This FIR is nothing but an instrument of oppression or<\/p>\n
needless harassment of the petitioners at the instance of respondent<\/p>\n
No.2 with the active connivance of the police, especially the<\/p>\n
Investigating Officer. Even if one was to take uncontroverted<\/p>\n
allegations made in the complaint, these would not prima facie<\/p>\n
establish that the petitioners have committed an offence of cheating.<\/p>\n
It is basically a failure of agreement between petitioner No.1 and<\/p>\n
respondent No.2. The reasons in this regard obviously are<\/p>\n
attributable to a conduct on the part of son of respondent No.2.<\/p>\n
           The petitioners are still ready to adhere to the terms of<\/p>\n
the agreement but are justified in raising a grievance that petitioner<\/p>\n
No.1 should get a divorce from son of respondent No.2 to start her<\/p>\n
life afresh. Apparently, it seems that the respondents are the one<\/p>\n
who are not adhering to the spirit of the agreement and want to take<\/p>\n
benefit of getting the proceedings against them quashed without<\/p>\n
making a move for divorce. The clause of the agreement leaving<\/p>\n
liberty for the parties to get married obviously is legally unsound and<\/p>\n
would be un-enforceable in law. Accordingly, I am of the considered<\/p>\n
opinion that no case of cheating by the petitioners is made out. The<\/p>\n
recording of this FIR by the police is apparently is not free from some<\/p>\n
motive which could be extraneous also. The Investigating Officer has<\/p>\n
obviously shown a keen interest in this case and has taken pains to<\/p>\n
act illegally against the petitioners in seizing their bank account for
\n CRIMINAL MISC. NO.M 53908 OF 2007 (O&M)                      :{ 10 }:\n<\/p>\n
which he would not have any power. His conduct needs to be<\/p>\n
scanned. While allowing this petition and quashing the FIR against<\/p>\n
the petitioners, direction would go to the Senior Superintendent of<\/p>\n
Police, Hoshiarpur to investigate this aspect of the matter as to how<\/p>\n
the Investigating Officer had been so insensitive in recording this<\/p>\n
criminal proceedings against petitioner No.1, who has been a victim<\/p>\n
at the hands of respondent No.2, but has been made to face criminal<\/p>\n
proceedings. Senior Superintendent of Police would hold an enquiry<\/p>\n
into this aspect and separately intimate the outcome thereof to this<\/p>\n
court by moving appropriate application in this regard within a period<\/p>\n
of three months from the date of the receipt of the copy of this order.<\/p>\n
           The present petition is allowed and FIR and all<\/p>\n
consequential proceedings held against the petitioners shall stand<\/p>\n
quashed.\n<\/p>\n<\/p>\n
September 03, 2008                        ( RANJIT SINGH )\nramesh                                          JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Monica And Others vs State Of Punjab And Another on 3 September, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-211941","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nMonica And Others vs State Of Punjab And Another on 3 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/monica-and-others-vs-state-of-punjab-and-another-on-3-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Monica And Others vs State Of Punjab And Another on 3 September, 2008 - 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