Bombay High Court
Ghansham Magan Chavan vs The State Of Maharashtra And ... on 6 August, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
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Cri.Appln.1097-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1097 OF 2021
Ghanshaym Magan Chavan .. Applicant
Versus
The State of Maharashtra and anr. .. Respondents
Mr A.D. Sonar, Advocate for applicant
Mr S.P. Deshmukh, A.P.P. for respondent no.1
Mr Ganesh Gadhe, Advocate for respondent no.2
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATE : 6th August 2021
PER COURT :
1. Heard finally with the consent of the parties at admission stage.
2. The applicant is an accused in connection with Crime No.180/2021,
registered with Shahada Police Station for the offices punishable under
Sections 420 and 494 of the Indian Penal Code.
3. The applicant has approached to this Court by filing this Criminal
Application for quashing the said F.I.R.
4. The learned Counsel for the applicant/original accused no.1 submits
that the respondent no.2 is the legally wedded wife of the applicant. It has
been alleged in the complaint that the applicant has performed the marriage
with the co-accused no.2/Nalini Tandekar during subsistence of their
marriage. The learned Counsel submits that so far as the charge under
Section 420 of the Indian Penal Code is concerned, the same is not attracted
even if the allegations made in the complaint are accepted as it is.
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Cri.Appln.1097-2021
5. The learned Counsel for respondent no.2 submits that respondent
no.2 is legally wedded wife of the applicant/original accused no.1 and during
the subsistence of their marriage, the applicant has performed the marriage
with co-accused no.2 Nalini. The applicant has not only committed the
offence punishable under Section 494 of the Indian Penal Code, but he has
also committed an offence punishable under Section 420 of the Indian Penal
Code.
6. We have also heard the learned A.P.P. for the State.
7. In a case of State of Haryana and Ors. Vs. Ch. Bhajanlal and Ors.,
reported in AIR 1992 SC 604 in para 108 of the judgment, the Supreme
Court has framed the guidelines pertaining to the categories of the cases by
way of illustration wherein the powers under Section 482 of the Cr.P.C.
could be exercised either to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. In terms of those guidelines,
Clauses (1) and (2) are relevant for the present case and the same are
reproduced thus :
" (1) Where the allegations made in the First Information
Report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a congnizable offence, justifying an investigation by police
officers under Section 156 (1) of the Code except under an
order of a Magistrate within the purview of Section 155 (2) of the
Code."
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Cri.Appln.1097-2021
8. In the instant case, the respondent no.2/informant has made the
allegation about cheating. We reproduce Section 420 of the Indian Penal
Code as under :
"420. Cheating and dishonestly inducing delivery of
property : Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or to
make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is
capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine."
The ingredients of the offence of cheating are as under :
(i) There should be fraudulent or dishonest inducement of a
person by deceiving him;
(ii) (a) The person so deceived should be induced to deliver
any property to any person, or to consent that any person shall
retain any property; or (b) the person so CC no. 199/2008 Page
no. 6 of 9 deceived should be intentionally induced to do or
omit to do anything which he would not do or omit if he were not
so deceived; and
(iii) in cases covered by (ii) (b), the act of omission should be
one which causes or is likely to cause damage or harm to the
person induced in body, mind, reputation or property.
As per the observations made by the Supreme Court in a case of S.W.
Palanitkar vs . State Of Bihar, 2002 SCC (Cri.) 129.
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Cri.Appln.1097-2021
9. We have also gone through the definition of Cheating under Section
415 of the Indian Penal Code. Even accepting the allegations made in the
complaint as it is, we do not think that the same discloses the offence of
cheating in any manner. Consequently, in terms of Clause (2) of the
guidelines framed by the Supreme Court in case of State of Haryana and
Ors. Vs. Ch. Bhajanlal and Ors., reported in AIR 1992 SC 604 (supra), the
allegations in the F.I.R. do not disclose the cognizable offence and,
therefore, the criminal proceedings in terms of registration of the Crime
No.0180 of 2021 is nothing but the abuse of the Court process. However,
considering the allegations in respect of the second marriage attracting the
penal provision of Section 494 of the Indian Penal Code are concerned, we
grant liberty to respondent no.2 to file a private complaint before the
concerned Magistrate. Hence, the following order :
ORDER
(I) The Criminal Application is allowed in terms of prayer clause (B).
(II) The Criminal Application is accordingly disposed of.
( SHRIKANT D. KULKARNI, J.) ( V. K. JADHAV , J.)
vvr
