Bombay High Court
Nalini Tarachand Tandekar vs The State Of Maharashtra And ... on 14 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
66-CriAppln-2787-2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
66 CRIMINAL APPLICATION NO. 2787 OF 2021
NALINI TARACHAND TANDEKAR
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for Applicant : Mr. Sonar Anudeep D
APP for Respondent No.1-State : Mr. K. S. Patil
Advocate for Respondent No.2 : Mr. Shantanu A. Deshpande
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR. C. MORE, JJ.
DATED : 14th MARCH, 2022
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, District
Nandurber 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.2
submits that respondent no.2 is the legally wedded wife of original
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accused no.1 Ghanshyam. It has been alleged in the complaint that
accused no.1 Ghanshyam has performed marriage with the present
applicant 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.
5. The learned Counsel for respondent no.2 submits that
respondent no.2 is legally wedded wife of original accused no.1
Ghanshyam and during the subsistence of their marriage, he has
performed marriage with present applicant-accused no.2 Nalini. The
applicant along with accused no.1 Ghanshyam has not only
committed the offence punishable under Section 494 of the Indian
Penal Code, but 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
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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."
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
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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.
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
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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. 180 of 2021 is nothing but an abuse
of the Court process. So far as the allegations in respect of the second
marriage attracting the penal provisions of Section 494 of IPC are
concerned, by order dated 06.08.2021 in Criminal Application No.
1097 of 2021, we have quashed the FIR in connection with crime no.
180 of 2021 against original accused no.1 Ghanshaym Magan
Chavan, however, we have granted liberty to respondent no.2 to file a
private complaint under Section 494 of IPC. Thus by granting the
same liberty to respondent no.2 again, to the extent of the present
applicant, we allow this criminal application in terms of prayer clause
(B). 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.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
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