Rajendra S/O Ananda Magdum And ... vs State Of Mah., Thr. Pso
2022 Latest Caselaw 4359 Bom

         Judgment                           1                     apl595.19.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.


                    CRIMINAL APPLICATION (APL) NO. 595/2019


               Rajendra S/o Ananda Magdum,
               Aged about 41 years, Occ. Service,
               R/o. C/o. Inamdar, Behind Malekar
               House, Sai Marg 1, Sangram Nagar,
               Akaluj, Tq. Malhshiras, District Solapur
                                                          .... APPLICANT(S)

                                      // VERSUS //

         1]    State of Maharashtra,
               Through the Police Station Officer,
               Hudkeshwar Police Station, Nagpur

         2]    Savita D/o Bhanudas Nardewar,
               Aged about 42 years,
               R/o. Bungalow No. 15, Plot No. 52/A,
               Swagat Nagar, Narsala, District Nagpur
                                                    .... NON-APPLICANT(S)

         *******************************************************************
            Ms. S.Thakur, Adv h/f Shri S.P. Sonwane, Adv for the Applicant(s)
                    Shri T.A. Mirza, APP for the Non-applicant/State
         *******************************************************************

                      CORAM : V.M. DESHPANDE & AMIT BORKAR, JJ.

APRIL 26, 2022

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

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1] Heard.

         2]            RULE. Rule made returnable forthwith.



         3]            By this Application under Section 482 of the Code of

Criminal Procedure, the Applicant is challenging registration of the F.I.R.

No. 51/2019 registered with the Non-Applicant No. 1 - Police Station

for the offences punishable under Sections 376, 506 & 406 of the Indian

Penal Code.

4] The First Information Report came to be registered against

the Applicant with the accusations that the Applicant was working as a

Police Sub Inspector in Tembhurni Police Station and he got acquainted

with the Non-Applicant No. 2 when the maternal uncle of the Non-

Applicant No. 2 lodged report against the Credit Co-operative Society.

Since the Applicant was the Investigating Officer of the said case, he had

occasion to meet the Non-Applicant No. 2. It is alleged that on the false

promise of marriage with the Non-Applicant No. 2, the Applicant had

repeated sexual intercourse with the Non-Applicant No. 2. It is alleged

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that the period of love relationship of the Applicant and the Non-

Applicant No. 2 was spread over from February, 2011 till June, 2014.

When the Non-Applicant No. 2 carried pregnancy due to the said sexual

intercourse, the Applicant forced her to abort the said child. It is alleged

that from the year 2017, the Applicant tried to avoid the Non-Applicant

No. 2. It is also alleged that the property owned by the Non-Applicant

No. 2 was mortgaged to the bank at the instance of the Applicant.

5] The Applicant has therefore challenged the registration of

the First Information Report by filing the present Application. This

Court on 26/09/2019 issued notice to the Non-Applicants. The Non-

Applicant No. 1 has filed reply stating that the material on record prima-

facie indicates involvement of the Applicant in the crime. The office note

dated 03/12/2019 shows that the Non-Applicant No. 2 is served. In spite

of service, the Non-Applicant No. 2 neither appeared in person nor

engaged any Advocate to represent her.

6] Learned Advocate for the Applicant submitted that

considering the allegations in the First Information Report on the face

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value, it appears that the relationship between the Applicant and the

Non-Applicant No. 2 was consensual in nature. She submitted that due

to the property dispute, false report came to be lodged against the

Applicant. She placed reliance on the judgment of the Hon'ble Supreme

Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra

reported in (2019) 9 SCC 608.

7] Per contra, the learned APP submitted that the material on

record is sufficient to constitute the offences alleged against the

Applicant.

8] On the basis of the rival contentions and with the assistance

of the learned Advocate for the Applicant and learned APP, we have

perused the First Information Report and the material on record. On

careful perusal of the First Information Report, it appears that the

Applicant and the Non-Applicant No. 2 were married, before

commencement of their relationship. Both are having children from their

respective spouses. The Non-Applicant No. 2 was aged about 46 years

on the date of the report. It also appears from the averments in the First

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Information Report that the Applicant and the Non-Applicant No. 2

were residing as husband and wife from February, 2011 till June, 2014.

On the basis of the allegations in the First Information Report as well as

the material on record, the following essential features of the case are

emerging:-

"(i) The relationship between the Applicant and the Non-Applicant

No. 2 was consensual in nature.

(ii) The parties were in physical relationship from February, 2011 till

June, 2014;

(iii) The sexual intercourse between the Applicant and the Non-

Applicant No. 2 had developed with the consent of the Non-

Applicant No. 2 as she offered no resistance nor made any complaint

at any point of time though they had sexual intercourse from

February, 2011 till June, 2014; and

(iv) Both the parties were residing with each other as husband and

wife for period of three years."

9] At this stage, it would be profitable to refer to the judgment

of the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar

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(supra). The Hon'ble Apex Court in the said case , while dealing in the

similar situation had quashed the First Information Report against the

Applicant therein. The Hon'ble Apex Court in the said case has held

that, where the promise to marry is false and intention of the maker at

the time of making the promise itself was not to abide by it but to

deceive the woman to convince her to engage in sexual relations, there is

"misconception of fact" that vitiates the woman's consent, it is further

held that mere breach of promise cannot be said to be false promise. The

Hon'ble Apex Court observed that, to establish a false promise, the

maker of the promise should have had no intention of upholding his

word at the time of giving it. In the facts of the present case, we are

satisfied that there is no material on record to show that at the time of

inception of relationship, the accused had no intention to perform

marriage with the Non-Applicant No. 2. Therefore, we are satisfied that

the Prosecution has failed to prove the ingredients of the offence

punishable under Section 376 of the Indian Penal Code.

10] The next offences alleged against the Applicant are under

Sections 506 and 406 of the Indian Penal Code. Section 406 is

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punishing section for the offence of criminal breach of trust which is

defined under Section 405 of the Indian Penal Code which reads thus:-

"406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

11] To constitute offence under Section 405 of the Indian Penal Code, the following ingredients are necessary:-

"(i) Entrusting a person with property or with any dominion over property;

(ii) That person entrusted:-(a) dishonestly mis-appropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation:- (i) of any direction of law prescribing the mode in which such trust is to be discharged or

(ii) of any legal contract made, touching the discharge of such trust.

12] In the facts of the present case, even if the allegations in the

First Information Report are accepted on the face value, there is no

allegation that the Applicant has either dishonestly misappropriated or

converted the property of the Non-Applicant No. 2 for his own use. We

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are therefore satisfied that the ingredients of the offence under Section

406 are not fulfilled. The next offence is under Section 506 of the Indian

Penal Code. On careful reading of the said Section, we are satisfied that

the First Information Report lacks essential ingredients of the offence

defined under Section 505 of the Indian Penal Code. We are therefore

satisfied that continuation of the present proceedings against the

Applicant would amount to abuse of process of the Court.

13] Hence, the following order is passed:-

F.I.R. No. 51/2019 registered with the Non-Applicant No. 1

- Police Station for the offences punishable under Sections

376, 506 & 406 of the Indian Penal Code against the

Applicant is quashed and set aside.

Rule is made absolute in the above terms. Pending

Application(s), if any, stand(s) disposed of.

                                                 (JUDGE)                                  (JUDGE)
   Signed By:AKRAM PARVEZ
   MAQSOOD AHMAD ANSARI
   Private Secretary to Hon'ble Judge
   Signing Date:28.04.2022 17:24

ANSARI