Bombay High Court

Jagdish Raghunath Mankar vs State Of Maharashtra on 24 February, 2021

Bench: S. K. Shinde

Shambhavi                                                            16-APEAL-354-1998.odt
N. Shivgan
Digitally signed by
Shambhavi N.           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shivgan
Date: 2021.02.26            CRIMINAL APPELLATE JURISDICTION
18:22:57 +0530

                                     CRIMINAL APPEAL NO.354 OF 1998

                      Jagdish Raghunath Mankar
                      Age 27 years, Occ: Tempo
                      Driver, Residing at
                      Manikpur Tal: Vasai,
                      District: Thane                            ... Appellant

                                Vs

                      The State of Maharashtra                  ... Respondents
                                                     ...

Mr. Advait M. Sethna appointed advocate with Mr. Pravan A. Gohil with Mr. Eshaan Saroop for the Appellant.

Mrs. Sharmila Kaushik, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 24th FEBRUARY, 2021.

ORAL JUDGMENT :

The appellant herein is convicted of the ofence

punishable under Section 417 of the Indian Penal Code,

1860 ('IPC' for short) and sentenced to sufer rigorous

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imprisonment for six months and to pay fne of Rs.200/- in

default to sufer simple imprisonment for one month.

2 It is against the conviction and sentence passed

in Sessions Case No.256 of 1996 by the Additional Sessions

Judge, Palghar, convict has preferred this appeal under

Section 374(2) of the Code of Criminal Procedure, 1973

('Cr.P.C.' for short).

3 Prosecution case in brief, is that, prosecutrix was

working on construction site where she be-friended with the

accused and in short span, they engaged in sexual

relations, on more than one time. She would allege,

appellant did not disclose his marital status but presuming,

he would marry her, she submitted to his sexual desires on

more than one occasion. Later, when she learnt that

applicant was married, but by the time, she was pregnant,

Soon thereafter, she lodged the complaint in September,

1990 whereupon the ofence punishable under Section 376

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of the IPC was registered against the accused. Pending

investigation, prosecutrix delivered a baby girl.

4 Accused was tried of the ofence punishable

under Sections 376 and 420 of the IPC.

5 The learned Trial Court upon appreciating the

evidence of the prosecutrix, recorded the fnding, that it

was consensual act and, thus, acquitted the accused of the

ofence punishable under Section 376 of the IPC. The

learned Trial Court while acquitting the accused of the

charge under Section 376, has observed and held, 'From

the version of the complainant, as stated earlier, accused

did not have sexual intercourse with the complainant

against her will and without her consent. Sexual intercourse

by a lady of 20 years age with consent cannot be said to

be rape, as the lady is capable of giving her consent. In

such background charge for ofence punishable under

Section 376 of the I.P.C. against the accused must fail.'

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6 The State has not preferred the appeal against

the order of acquittal as stated above.

7 The learned Trial Judge, however, convicted the

accused of the ofence punishable under Section 417 of the

IPC and sentenced to sufer rigorous imprisonment for six

months.

8 Mr. Sethna, the learned counsel for the appellant,

in support of the appeal would argue that ofence of

cheating falls under Chapter XVII of the IPC, which relates

to the, "ofence against the properties" and, therefore,

ofence under Section 415 read with Section 417,

necessarily relate to the property, which in the instant case

is not involved and, therefore, the conviction under Section

417 of the IPC is erroneous. Mr. Sethna further submits the

appellant has been acquitted of the charge of rape on the

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ground that it was consensual act and, therefore, it is

irrational, to hold appellant guilty of ofence of cheating by

intentional deception and therefore, once the Court

concludes, it was consensual act, on the same set of facts

and evidence, accused cannot be convicted for falsehood or

concealment of his marital status. On these grounds, Mr.

Sethna seeks acquittal of the appellant.

9 On the other hand, the learned Additional Public

Prosecutor, Mrs. Kaushik supported the conviction and

sentence and would contend that the learned Trial Court

has correctly applied penal provisions of Section 417 of the

IPC to the facts of the case. The learned Additional Public

Prosecutor submits that, proposition canvassed by Mr.

Sethna that Section 415 of IPC only relates to the property

is incorrect and would submit that second part of Section

415 squarely applies to the facts of the case and in support

of this submission, she has relied on the judgment of the

Hon'ble Apex Court in the case of G.V.Rao v.

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L.H.V.Prasad and Others                    and judgment of this Court in

the case of Mangesh Madusudan Kotiyan v. The State

of Maharashtra & Anr. in Criminal Appeal No.892 of 2012

decided on 2nd July, 2013.

10 I have carefully considered the submissions of the

learned counsel for the appellant and the learned Additional

Public Prosecutor for the State. Also perused the evidence

and the judgment cited by the respective counsel in

support of their case.

11 Before dealing with the submissions, qua the

application of Section 417 of IPC to the facts of the case, let

me advert to the evidence of the prosecutrix. In her

testimony, she testifed that she was living on construction

site and be-friended with the accused, whereafter they fell

in love with each other. Her evidence in no uncertain terms,

let-out, that she presumed, appellant was not married and

1 (2000) 3 Supreme Court Cases 693

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believing that he would marry her, she indulged into sexual

relationship with him. Her evidence reads as under:

"vkeph vksG[k lqekjs † efgU;kiwohZp >kyh- eh fcxkjh dkekyk jk=kS lw/nk lkbZMyk jgkr vls- Pkkj efgU;kr vkeps vksG[khps #ikarj izsekr >kys- R;kus eyk izseklaca/kh pkaxys pkaxys lkaxwu rqb;k'kh eh yXu djhu vls xksMhr lakxwu eyk ,dnep toG dsyh- R;kus R;kps iwohZ yXu >kys vlY;kckcr u lkaxrkp ek>s'kh izse d#u laca/k Bsoys- eyk R;kaps yXu >kys ulkos o rks ek>s'kh yXu djsy Eg.kwu eh R;kyk dkgh vkMdkBh dsyh ukgh- uarj R;kps [email protected]† efgus jk=kS vijk=kS ek>sdMs ;s.kstk.ks pkyw >kys- R;k eqnrhr [email protected]† osGk vkeps ''kkjhjhd laca/k vkys-" "(emphasis supplied)

12 Thus, the evidence of the prosecutrix does not

suggests that the appellant made false promise to marry

her, soon after they be-friended. What appears from her

evidence is, that prosecutrix consented for sexual relations,

initially, for more than one time but when she learnt that he

was married, she fled the report with police whereupon

crime came to be registered.

13 Thus, on plain reading of the prosecutrix's

evidence, it cannot be said that the appellant lured the

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prosecutrix to engage in sexual relations with him on false

promise of marrying her.

14 In the context of the facts of the case and the

evidence on record, question that falls for my consideration

is whether conviction of the accused under Section 417 of

the IPC is sustainable.

15 As the application of penal provisions of Section

417, to the facts of the case is concerned, it may be stated

that the Hon'ble Apex Court in G.V.Rao (Supra) has held

that, the frst part of Section 415 pertains to the property

and second part need not necessarily relate to the property.

In the cited case, petitioner had fled private complaint

against his wife since allegedly after marriage, he came to

know his wife was belonging to Kondakapu community,

which is scheduled tribe and it was then that he realised

that by misrepresenting that she belongs to advanced

community, wife and her family members lured petitioner

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in wed-lock for which he would not have agreed at all

having known that wife did not belong to forward

community but belongs to scheduled tribe. It was in these

circumstances, he had fled complaint under Sections 415,

419 and 420 read with Section 34 of the IPC. Wife-

respondent therein, approached the High Court under

Section 482 of the Cr.P.C., seeking quashing of the FIR,

which allowed by the High Court. It appears, High Court

quashed the FIR principally on the ground that Chapter XVII

of the Indian Penal Code, 1860 deals with ofences of the

property and, therefore, Section 415 must also necessarily

relate to the property, which in the instant case, is not

involved and consequently, FIR was quashed.

. The Hon'ble Apex Court, however, held that,

while the frst part of the defnition of Section 415 relates to

the property, second part need not necessarily relate to the

property. Thus, upon analysing provisions of Section 415,

the Apex Court in G.V.Rao (Supra) held in paragraphs 6,7

and 8 as under:

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          "6     This part speaks of intentional deception

which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property.

7 As mentioned above, Section 415 has two parts. While in the frst part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the frst part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 = 1956 SCR 483, a guilty intention is an essential ingredient of the ofence of cheating. In order, therefore, to secure conviction of a person for the ofence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J. 1806, that in order to constitute the ofence of cheating, the intention to deceive should be in existence at the time when the inducement was ofered.

8 Thus, so far as second part of Section 415 is concerned, "property", at no stage, is involved. Here it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have sufered or was Shivgan

16-APEAL-354-1998.odt

likely to sufer damage or harm in body, mind, reputation or property. In an old decision of the Allahabad High Court in Empress v. Sheoram and another, (1882) 2 AWN 237, it was held by Mahmood, J.:-

"That to palm of a young woman as belonging to a caste diferent to the one to which she really belongs, with the object of obtaining money, amounts to the ofence of cheating by personation as defned in s.416 of the Indian Penal Code, which must be read in the light of the preceding, s.415."

9 In an another old decision in Queen-

Empress v. Ramka Kom Sadhu, ILR (1887) 2 Bombay 59, it was held that a prostitute may be charged for cheating under Section 417 if the intercourse was induced by any misrepresentation on her part that she did not sufer from syphilis."

16 Thus, having regard to the facts of the case and

the law laid down by the Hon'ble Apex Court, argument of

Mr. Sethna that the penal provisions of Section 417 must

also necessarily relate to the property is rejected. It may be

stated that in G.V.Rao (Supra), facts were altogether

diferent than the facts in the present case. Herein there

was no 'promise to marry' nor intentional deception by

misrepresentation or deceitfulness practised before

establishing physical relationship with prosecutrix. In fact

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her evidence suggests that she presumed that he was not