Ravindra S/O. Manikrao Ghavale vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 878 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

               CRIMINAL APPLICATION (APL) NO. 369 OF 2018

Ravindra S/o. Manikrao Ghavale,
Aged about 48 years, Occ. Service,
R/o. Shiwai Vihar, Juna Saturna,
Amravati, Tah. & Dist. Amravati.                                           . . . APPLICANT

                     ...V E R S U S..

1. State of Maharashtra through
   P.S.O., P.S. Badnera,
   Tah. & Dist. Amravati.

2. Sau. Indira W/o. Dilip Bodule,
   Aged about 44 years,
   Occ. Household Works,
   R/o. Nimbhora Nagar,
   Near Sipna College,
   Badnera Road, Amravati,
   Tah. & Dist. Amravati.                                         . . NON-APPLICANTS

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Shri R. D. Wakode, Advocate for applicant.
Ms. Mayuri Deshmukh, A.P.P. for non-applicant no. 1/State.
Shri S. D. Chande, Advocate for non-applicant no. 2.
-----------------------------------------------------------------------------------------------
                                CORAM :- Z. A. HAQ AND
                                         AMIT B. BORKAR, JJ.

DATED :- 14.01.2021

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Rule. Rule is made returnable forthwith.

2. This is an application under Section 482 of the Code of

Criminal Procedure to challenge the First Information Report (FIR) No.

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615/2017, dated 22.11.2017 registered with the non-applicant no. 1-

Police Station for the offence punishable under Sections 376(2)(n), 506

and 417 of the Indian Penal Code (IPC).

3. The FIR came to be registered against the applicant on

22.11.2017 with accusation that the applicant being teacher, used to

visit house of the non-applicant no.2. It is alleged that the applicant told

the non-applicant no.2 that wife of the applicant had deserted him and

promised to marry the non-applicant no.2. It is further alleged that the

applicant and the non-applicant no.2 were in sexual relationship from

year 2010 till 2017. It is alleged that in the year 2015, the applicant

agreed to sell Plot No. 32 and agreement to sell was executed by the

applicant in favour of the non-applicant no. 2 by accepting amount of ₹

30,000/-. It is further alleged that towards the sale consideration of the

said plot, the non-applicant no.2 paid an amount of ₹ 90,000/- by cash.

It is alleged that the applicant has received amount of ₹ 7 lakhs in total

from the non-applicant no.2 and has sexually exploited her by promising

marriage.

4. The applicant has approached this Court by way of the

present application. This Court on 06.07.2018 issued notice for final

disposal and granted ad-interim relief in terms of prayer clause (ii). The

non-applicant no.2 in pursuance of notice issued by this Court and filed

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reply and it is stated in the said reply that the applicant had forcible

sexual intercourse with the non-applicant no.2. It is further alleged in

the reply that the applicant made the non-applicant no.2 to take divorce

from her husband by promising to perform marriage with her and

accordingly the non-applicant no.2 had taken divorce from her husband

on 31.12.2016. It is further alleged that the non-applicant no.2 has paid

various amounts to the applicant, partly through cash and partly through

cheque.

5. We have considered the contents of the FIR and material

produced on record by the applicant and reply filed by the non-

applicants. The main allegation against the applicant is that the

applicant had sexual intercourse with the non-applicant no.2 on the

promise of marriage. We have carefully considered the contents of the

FIR in light of the allegations under Section 376(2)(n). The allegations

in the FIR does not contain any allegation that the applicant at the

inception of their relationship never intended to marry the non-

applicant no.2. The said point is no longer res-integra in view of the

judgment in the case of Pramod Suryabhan Pawar Vs. State of

Maharashtra [(2019) 9 SCC 608]. The Apex Court in para no. 18 had

categorical held that the promise to perform marriage at the inception

should be the false promise and mere failure to perform marriage will

not attract ingredients of Section 376(2)(n) of the IPC. We have

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considered the allegations in the FIR. It appears from the allegations

that the non-applicant no.2 was in relationship with the applicant from

year 2010 till 2017 and there were repeated incidents of sexual

intercourse with the applicants. In light of the judgment of the Apex

Court in the case of Pramod Suryabhan Pawar (supra), we are satisfied

that insofar Section 376(2)(n) of the IPC, the allegation in the FIR does

not constitute the offence.

6. The allegation in the FIR, as regards payment of amount by

the non-applicant no.2 to the applicant for the purpose of sale of Plot

No. 32 is concerned, the applicant has placed on record the agreement

between the applicant and the non-applicant no.2. The contents of the

said agreement are not disputed by the non-applicant no.2. As per the

said agreement, the applicant has repaid an amount of ₹ 62,500/- to the

non-applicant no.2. The applicant has also produced the bank passbook

at page no. 33 of the paper-book of the present application. The said

passbook contains entry about amount of ₹ 62,500/- being withdrawn

by the non-applicant no.2.

7. Learned Advocate for the applicant invited our attention to

the earlier complaints filed by the non-applicant no.2 with concerned

Police Station. The first complaint dated 06.11.2017, wherein it is

alleged by the non-applicant no.2 that the applicant has taken an

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amount of ₹ 2 lakhs from the non-applicant no.2. Another complaint is

dated 10.11.2017, wherein it is alleged by the non-applicant no.2 that

the applicant has taken an amount of ₹ 2 lakhs from time to time and

had promised to sale two plots in her favour. In the FIR dated

23.11.2017, the non-applicant no.2 has alleged that the applicant has

taken an amount of ₹ 7 lakhs from the non-applicant no.2. From the

aforesaid three complaints, it appears that the non-applicant no.2 has

changed her stand from time to time. This casts doubt about veracity of

the allegations made against the applicant.

8. The applicant has produced sufficient material on record to

show that the applicant has repaid an amount of ₹ 62,500/-. If the non-

applicant no.2 had any grievance about non-payment of any amount to

be paid by the applicant, the remedy of the non-applicant no.2 was not

to register offence against the applicant. The non-applicant no.2 had

independent remedy available under the law.

9. We have considered the contents of the FIR in the context of

registration of offence punishable under Sections 417 and 506 of the

IPC. The essential ingredients of offence under Section 417 of the IPC is

dishonest intention at inception of the transaction. After having

considered the contents of the FIR, we are satisfied that essential

ingredients of offence punishable under Section 417 of the IPC are not

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made out, even if the allegations in the FIR are assume to be correct in

its entirety.

10. Insofar as the offence under Section 506 of the IPC is

concerned, we have gone through the contents of the FIR and we do not

find allegations in the FIR, which will constitute offence under Section

506 of the IPC.

11. We are therefore satisfied that continuation of proceedings

against the applicant amounts to abuse of process of law. The present

case is covered by Clause 1 of the para no. 102 of the judgment in the

case of State of Haryana and others Vs. Ch. Bhajanlal and others [1992

Supp. (1) SCC 335]. Having regard to criteria laid down in the above

judgment by the Apex Court, we are satisfied that the FIR lodged against

the applicant deserves to be quashed and set aside.

12. We, therefore, pass the following order :-

First Information Report No. 615/2017, dated 22.11.2017

registered with the non-applicant no.1- Police Station for offence

punishable under Section 376(2)(n), 506 and 417 of the Indian Penal

Code is quashed and set aside.

Rule is made absolute accordingly.

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CRI. APPLICATION (APPA) NO. 1146 OF 2018

In view of the disposal of the present appeal, the Criminal

Application praying for dispensing with filing of typed copy of FIR does

not survive. It is disposed accordingly.

              JUDGE                                         JUDGE

RR Jaiswal