Bombay High Court

Purushottam Kanhiya Yempal & Ors vs Asha @ Jayshree Govind Ida & Anr on 3 October, 2017

Bench: V.K. Jadhav

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                                                   205 CRIMINAL APPLICATION 1454.2005.odt


               THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        BENCH AT AURANGABAD.


                   CRIMINAL APPLICATION NO. 1454 OF 2005

1.         Purushottam s/o Kanhaiya Yempal,
           Age. 40 years, Occ. Business,
           R/o. Sahakar Nagar, Aurangabad.

2.         Kanhaiya s/o Pochaiya Yempal,
           Age. 72 years, Occ. Retired,
           R/o. Sahakar Nagar, Aurangabad.

3.         Parmeshwar s/o Kanhaiya Yempal,
           Age. 45 years, Occ. Service (WALMI)
           R/o. Dashmeshnagar, Aurangabad.

4.         Rajmani (Rani) w/o Parmeshwar Yempal,
           Age. 38 years, Occ. Household,
           R/o. Dashmeshnagar, Aurangabad              ... PETITIONERS


                   V E R S U S


1.         Asha @ Jayshree d/o Govind Ida,
           Age. 34 years, Occ. Household,
           R/o. Prlhad Nagar, Bhusawal,
           District Jalgaon.

2.         The State of Maharashtra.
           (Copy to be served on the 
           Public Prosecutor, High Court
           of Bombay, Bench at Aurangabad.             ... RESPONDENTS


                                     ...
Mr. H. F. Pawar, h/f Mr. A. H. Kapadia, Advocate for Petitioners.
Mrs. Seema T. Pawar h/f Mr. A. G. Talhar, Advocate for Respondent No.1
Mr. G. O. Wattamwar, APP for Respondent No. 2 / State.
                                     ...




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                                                         205 CRIMINAL APPLICATION 1454.2005.odt



                                              CORAM  : V. K. JADHAV, J.

                                              DATE     :  03rd October, 2017.


ORAL JUDGMENT:   
 
.                 By   this   criminal   application,   the   Petitioners   /   original

accused seek quashing of the order of taking cognizance of complaint

bearing R.C.C. No. 129 of 2004 filed by Respondent No. 1.

2 Brief facts giving rise to the present criminal application

are as follows.

On 15th March, 2004, the engagement of Petitioner No.1 with

Respondent No.1 was performed and the date of marriage also came

to be fixed as 29th April, 2004. Consequent to the said engagement

ceremony and date of marriage has been fixed, Respondent No.1 /

original Complainant has booked the marriage hall and also

purchased costly items like T.V., fridge, cooler, washing machine etc.

by incurring expenses to the tune of Rs.50,000/-. Even Respondent

No.1 / original Complainant has also printed the marriage invitation

cards. However on 13th April, 2004, the Petitioners in collusion with

each other, demanded certain more amount and also certain articles

and informed to Respondent No.1 / original Complainant that if their

205 CRIMINAL APPLICATION 1454.2005.odt

demands are not fulfilled, they would perform the marriage of

Petitioner No.1 with other girl from Beed. Respondent No.1 / original

Complainant and her relatives tried their level best to convince the

Petitioners, however, in vain. Consequently, the Respondent /

original Complainant has instituted Regular Civil Suit No.62 of 2004

for injunction to prevent Petitioner No.1 from getting married with

another girl. The Respondent / original Complainant has also filed a

private complaint before Magistrate against the Petitioners for having

committed an offence punishable under Sections 420, 520, 427 read

with 34 of the Indian Penal Code.

3 The learned counsel for Petitioners submits that during

the pendency of this criminal application, Petitioner Nos.2 and 3 died.

Petitioner No.1 is the bridegroom and Petitioner No.4 is the paternal

aunt of Petitioner No.1. The learned counsel submits that as per the

allegations made in the complaint, the engagement ceremony was

performed by consent and accordingly, the date of marriage was

fixed. The learned counsel submits that breach of promise may give

rise to the civil cause as well as criminal prosecution. The learned

counsel submits that in the instant case, there are no allegations to

indicate that right from inception the Petitioners were having

205 CRIMINAL APPLICATION 1454.2005.odt

dishonest intention to cheat Respondent No.1 / original Complainant.

The learned counsel submits that in the given set of allegations,

ingredients of Section 415 hardly attract. The learned counsel

submits that so far as said Regular Civil Suit No.62 of 2004 is

concerned, the same has been dismissed in default long back and the

Respondent / original Complainant has never tried to restore the

same. The learned counsel, on instructions, submits that the

Respondent / original Complainant got married and Petitioner No.1

also got married after the alleged incident.

4 The learned counsel for Petitioners in order to

substantiate his contentions placed his reliance in the case of Sharad

Prabhakar Ambadkar & Anr. Vs. Arun Shardram Deshpande &

Anr., reported in, 2005 All.M.R. (Cri.) 601.

5 The learned counsel for Respondent / original

Complainant submits that prima-facie case is made out under

Sections 420, 500 and 427 of the Indian Penal Code and the

Magistrate has therefore, rightly issued the process against the

Petitioners.

205 CRIMINAL APPLICATION 1454.2005.odt

6 By accepting the allegations made in the complaint as it

is, I do not think that the ingredients of Sections 420, 500 and 427

stand attracted in this case. There are no allegations in the complaint

that right from inception, Petitioner No.1 was having the dishonest

intention to cheat the Respondent / original Complainant. It also

appears that both the parties have lost their interest in the litigation.

Petitioner No.1 and Respondent / original Complainant got married

with other partners. Even though Regular Civil Suit No.62 of 2004

came to be dismissed in default long back, the Respondent / original

Complainant never tried to restore the same.

7 In the case of Sharad Prabhakar Ambadkar & Anr. Vs.

Arun Shardram Deshpande & Anr. (supra), relied up by learned

counsel for Petitioners, this Court (Coram : Anoop V. Mohta, J.) in the

identical facts, in paragraph No.8 has made the following

observations:

"8. In the present case there is nothing which entitles the complainant to proceed against the petitioner under Section 420 of I.P.C. The complaint, admittedly, has not been filed by the daughter of the complainant with whom petitioner No.1 was engaged. Petitioner No.2 is the father of petitioner No.1. The allegation against

205 CRIMINAL APPLICATION 1454.2005.odt

petitioner No.2 has been that he was unable to convince petitioner No.1 and to give reason to break the engagement. On the face of the complaint itself it is clear that the complainant has incurred expenses after the engagement. The expenses have been incurred by the complainant at their end. There is no wrongful loss to or gain by the petitioners. No case is made out that the petitioners have dishonestly earned and or received some property out of this engagement. The grievance of the complainant with respect to the expenses incurred is of at the most civil in nature. It does not fall within the ambit of ingredients of cheating as per Sections 415 to 420 of I.P.C. Therefore, the criminal prosecution cannot be proceeded against the petitioners. There is no case of any criminal conspiracy or misrepresentation or mistrust made out in the complaint. The things were smooth between petitioner No.1 and the daughter of respondent No.1 till the break of the engagement on 24.8.1997. The complainant's case is that in spite of the legal notice, as money was not paid the petitioners have committed the offence of cheating. Considering the ingredients as required to be invoked as per the above provisions, the issuance of the process on the private complaint in this case is unjustified and incorrect."

8 In view of the above discussion, I proceed to pass the

following order: