Page No.# 1/ vs The State Of Assam And Anr
2025 Latest Caselaw 3155 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And Anr on 14 February, 2025

                                                                               Page No.# 1/11

GAHC010243872017




                                                                          2025:GAU-AS:1588

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./928/2017

            MOUTUSHI DEY
            D/O- LATE SANTOSH KUMAR DEY, PERMANENT R/O- BANSBARI UNDER
            JORHAT POLICE STATION, DIST- JORHAT, ASSAM, AND PRESENTLY
            RESIDING AT H NO. 104, HAKIKAT NAGAR, KINGSWAY CAMP, NEW DELHI-
            110009

            VERSUS

            THE STATE OF ASSAM and ANR
            2:SAMBHU NATH SAHA@ SUBHAM SAHA
             S/O- LATE SUDHA RANJAN SAHA
             R/O- WARD NO. 5
             NAZIRANIBARI
             P.O AND P.S- JORHAT
             DIST- JORHAT ASSAM PIN- 78500

Advocate for the Petitioner   : MS.B MAHANTA, MR.D TALUKDAR,MR. K SAIKIA,MR.P
CHOUDHURY

Advocate for the Respondent : PP, ASSAM, DR. N DEKA,MR N AHMED

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

Advocate for the Petitioner : Mr. D. Talukdar, Advocate

Advocate for the Respondent : Mr. P. Borthakur, APP

Mr. N. Deka, for respondent No.2

Date of hearing : 23.01.2025 Page No.# 2/11

Date of Judgment and order :14.02.2025

JUDGEMENT & ORDER (CAV)

1. Heard Mr. D. Talukdar, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the respondent/opposite party No. 1. Also heard Mr. N. Deka, learned counsel for the respondent/opposite party.

2. The present criminal petition under Section 482 read with Sections 401/397 of the Code of Criminal Procedure, 1973 has been filed for quashing an order dated 07.09.2017 passed by the learned Chief Judicial Magistrate, Jorhat in C.R.Case No. 137/2016 whereby cognizance of the offences under Sections 417/420/506 IPC was taken against the petitioner. The petitioner further challenges the entire proceeding of C.R.Case No. 137/2016 and prays for quashment of the same. It is important to note at the outset that though the complaint was lodged by respondent No.2 against the petitioner and her mother, however, the learned Magistrate did not take cognizance against the mother.

3. Before dealing with the arguments advanced by the learned counsels for the parties, let this Court first record the contents of the complaint and the statements recorded by the learned Magistrate in the exercise of its power under Sections 200/202 CrPC.

4. As per the complaint, the complainant and the respondent No.2, have known each other since the year 2003, when both of them were studying in college. Their close relationship developed into a love relationship.The accused No. 1 therein/present petitioner proposed to the complainant and the complainant gave her consent to it happily. When the accused desired to go to New Delhi for her higher studies in the year 2004, the complainant did not object to her, since the Page No.# 3/11

accused/petitioner asserted that the distance between them would make the bonding of love stronger and thus, she built trust in the mind of the complainant that their love would grow more. According to the complainant, some difference was created in their love relationship as the accused/petitioner had an extra love affair with one Dipankar Das and this is the man who helped the accused/petitioner arrange her accommodation during her higher studies and subsequently, the complainant came to know about such love affair. Such a love affair was discussed by the accused/petitioner with the complainant in the year, 2007 and she promised him that she would not repeat such a mistake again in her life.

5. According to the complainant, after getting pressure from the accused/petitioner, he went with the accused to several places in India, i.e., Mumbai, Himachal, Kolkata, Nainital and Jaipur and he had spent lots of money as per her wishes.

6. It is alleged that as the accused/petitioner proposed for marriage, she said that these trips to the above-noted places were their pre-marriage honeymoon trips. It is further alleged that in the year, 2008, the accused/petitioner informed the complainant that she was having some financial problems, she persuaded him to hand over the ATM card and the accused/petitioner used the ATM card of the complainant till 28.04.2016.

7. It is also alleged that at different points of time, the complainant deposited money in his account which was withdrawn immediately in New Delhi by the accused/ petitioner. According to the complainant, in the year, 2015 both of them verbally agreed to their marriage and with lots of trust and expectation, the complainant under the influence of the accused/ petitioner paid her an amount of Rs. 3,00,000/- in cash for purchasing clothes, jewellery, cosmetic and all other pre-marriage articles required for the bride. Thereafter, on the occasion of the Page No.# 4/11

complainant's birthday party, in January 2016, both of them spent time in a Golf Resort and the accused/petitioner demanded a mobile phone from the complainant and accordingly, a mobile was gifted to her.

8. According to the complainant, in the year, 2016, the behaviour of the accused/petitioner changed drastically and at that point in time, she was engaged in another extra love affair with one ManashParatimBarua and the complainant did not have knowledge of such extra affair. Since January, 2016, the love relationship between the parties has deteriorated to a great extent.

9. Thereafter, the complainant lodged an FIR on 06.06.2016 which was registered as Jorhat P.S. Case No. 1128/2016 under Sections 294/506 IPC. Thereafter, on 29.06.2016, the accused/petitioner lodged an FIR which was registered as Jorhat P.S. Case No. 1294/2016 with some false allegations of demanding money, harassment, defamation etc. against the complainant. The complainant was arrested in connection with the aforesaid case. However, subsequently, he was released on bail.

10. Thereafter, the present complaint has been filed by the complainant. According to the complaint, he was being cheated, insulted and defamed in society when the accused/petitioner started courting "would be a husband"

(ManashPratimBorua)

11. It is further alleged that the mother of the accused demanded an amount of Rs.

70,00,000/- from the complainant using her aforesaid Jorhat P.S. Case No. 1294/2016 as a tool to extort money. It is contended that the accused/petitioner was punishable under Sections 120B/388/389/415/420/499/503/504 IPC.

12. The complainant examined as many as 4 (four) witnesses including the complainant himself during the enquiry by the learned Magistrate.

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13. This Court has also perused the aforesaid statements of the witnesses. In the statement, the complainant also made a similar assertion. His statements are reproduced herein below:-

"I have filed a case against Moutushi Dey. I know her since 2003 since college. We had a love affair. In 2004, she went to Delhi for higher education. In 2005 she shifted to Delhi. Her family had accepted our relationship. We went to visit many places. From 2008, she faced some financial problems and sought help from me. I gave her cash and sometimes I deposited money in her account on her mother's account. She asked me my ATM card and I gave it to her. She used to withdraw money for her personal and educational requirements. We visited Kolkata, Himachal, etc. We decided to get married in December, 2016.I gave her Rs.3 Lakhs to purchase jewellery for the marriage. She bought gold jewellery with my money. She came to Jorhat in January 2016 and I gifted her a mobile. After some days, she stopped responding to me and when I enquired I came to know that she had affairs with another boy. Moutushi gave me threatening to go away from her. She lodged an ejahar against me. I was arrested. Her mother demanded Rs. 70 Lakhs to withdraw the case."

14. One of the common friend of the complainant and accused, namely, Madhab Nandi, in his deposition stated that the accused/petitioner and the complainant had a long love relationship and the complainant spent a huge amount of money on her. It is also stated by her that a dispute arose between the accused and the complainant as regards handing over the ATM card of the complainant to the accused. According to him, in between their love relationship, though the accused started a love relationship with some other boys, such dispute was also resolved subsequently. However, when the marriage was fixed, the accused started to avoid the complainant and when the complainant investigated, he could learn that the accused had a Page No.# 6/11

relationship with on Manash Pratim Barua. Thereafter, said Manash Pratim Barua asked the complainant to leave alone the accused petitioner.

15. According to the sister of the complainant, her brother asked the accused/petitioner to return all the gift items that had been given by him. However, instead of returning the same, the accused/petitioner lodged a false case against the complainant and falsely, he was sent to jail.

16. Mr. D. Talukdar, learned counsel for the petitioner referring to the statements made in the complaint as well as the statements recorded by the Magistrate argues that if the allegations made in the complaint, even if taken at the face value donot prima facie constitute any offence or make out any case against the accused inasmuch as it is a case where a long standing love affair was broken and therefore, the material gifted cannot be treated either as an entrustment of property or misappropriation thereof not to say any initial deception in mind. There is nothing to suggest any ingredients of Section 417/420 and/or 506 IPC.

17. Per contra, Mr. N. Deka, learned counsel for the respondent referring to the statements argues that it is specifically stated that the accused had convinced the complainant to start the affair and taking advantage of such a relation, the accused had induced the complainant to handover properties, however, at the last moment she broke the relation which itself clarifies that the accused had initial deception in mind when starting the relation with the complainant. Therefore, a bare reading of the statements discloses offences under Section 417/420 and 506 IPC inasmuch as the learned Magistrate had rightly taken cognizance and issued process on the basis of material available.

18. This court has given anxious consideration to the submissions advanced by Page No.# 7/11

the learned counsel for the parties. Also perused the materials available on record.

19. From the testimonies of these prosecution witnesses, it is disclosed that both the accused and the complainant had studied together in the same college and they had a long love relationship.It is seen from the testimonies that the accused developed a relationship with another boy and she had also confessed the same before the complainant and thereafter, they continued their relationship.The date of marriage was also fixed but for the alleged relationship of the accused, the marriage could not be solemnized. The complainant demanded back the money and the gifts, which were given to the accused during subsistence of their love affair and at that relevant point in time, their conflict started. Thereafter, an FIR was lodged by the complainant and another by the accused. The complainant got arrested. Finally, the impugned complaint case was filed as his reputation was put at stake, more particularly, for his arrest in a false case.

20. In the aforesaid backdrop of the testimonies and factual assertion made in the complaint, if it is taken to be correct, the fundamental issue is whether any prima facie case under Sections 417/420/506 IPC is made out.

21. Section 415 IPC defines the term 'cheating' and brings under its fold an act that is done by fraudulent or dishonest intentions. The reading of the aforesaid provision shall clarify that there must be an inducement to deceive and to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person. Therefore, the dishonest or fraudulent intention on the part of the accused must prima facie be shown as regards dishonest or fraudulent inducement to deliver property. Thus, what is required is initial deception of a person, fraudulent or dishonest inducement leading to delivery of any property to any person.

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Dishonest intention of the accused at the time of making such inducement, must be at least prima facie shown. Thus, the dishonest intention must be there from the inception when the promise and representation were made.

22. It is equally well settled that every deceitful act is not unlawful inasmuch as every unlawful act is not deceitful. Those acts, which can be termed as unlawful and at the same time deceitful, shall come within the purview of Section 420IPC.

23. It is a well-settled proposition of law that a statement of fact is deemed 'deceitful' when it is false and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss. Cheating generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.

24. After perusal of the aforesaid provision, it is found that to make out an offence under Section 415 IPC, prima facie it is to be shown that the person fraudulently or dishonestly deceives another inducing that person to deliver any property to any person.

25. As recorded hereinabove, in the case in hand, from the statement of the complainant as well as the statements of the witnesses recorded under Sections 200/202 CrPC by the learned Magistrate, it is clear that there had been a long love relationship of 10/12 years between the petitioner and the complainant which was known to their parents also. Though their marriage was fixed and in that process, some articles were also given to the accused as gift, however, on the alleged relationship of the petitioner with some other boy, the marriage could not be solemnized and the dispute arose when the Page No.# 9/11

accused allegedly refused to hand over the marriage articles.

26. Therefore, if the materials available on record, i.e., the statement of the complainant and the statements of the witnesses recorded by the Magistrate are accepted to be true and are taken in theirface value, there is nothing to indicate or any whisper to indicate that the accused at the time of accepting the love relation had initial deception in mind to cheat inasmuch as the alleged subsequent conduct of the accused does not disclose such fact, more particularly, when it is available in the statements made by the witnesses that while the accused refused to return the gifts to the complainant, then only the problem arose. There is absolutely no material either in the complaint or in the statements to suggest that there had been any fraudulent or dishonest intention right from the beginning of their relationship. The alleged properties handed over to theaccused, admittedly were gifts out of their love.It is equally settled that mere failure to keep up promise, in the absence of any such culpable intention to deceive right from the beginning, cannot be said that such an offence was made out under Section 415 IPC. The statement made in the complaint as well as statements recorded, does not even remotely disclose any of such material.

27. This Court is also of the view that a marriage proposal may not reach its desired conclusion for many reasons and in such a situation, when cheating is alleged, at least some prima facie reliable and trustworthy material as required to take cognizance should be made available to the Magistrate to prosecute such a case. Breach of a promise cannot always be said to be a false promise and to prima facie show that there is a false promise, there must be some material indicating that the maker of the promise had no intention of upholding his/her word at the time of giving it. As recorded hereinabove, there was no such material before the Magistrate to take Page No.# 10/11

cognizance of an offence under Sections 417/420 IPC rather both the accused and the complainant enjoyed pre-honeymoon trip, celebrated birthday of the accused at a rent etc.

28. Therefore, in the totality of this matter, this Court is of the unhesitant view that no offence under Sections 415/417/420 IPC is made out against the petitioner.

29. Now coming to the offence under Section 506 IPC, it is by now well settled that mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504 IPC, if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace.

30. However, there cannot be a general proposition that no one commits an offence under Section 504 IPC, if he merely uses abusive language against the complainant. In judging whether particular abusive language attracts Section 504 IPC, It is the ordinary general nature of the abusive language that is the test for considering, whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.

31. Now coming to the case in hand, the complainant made a statement that the accused gave him threatening to go away from her life and she lodged an ejahar against him.

32. In the considered opinion of this Court, when there was admittedly mistrust and relations were already broken, when the accused asked the complainant to go away from her life, it cannot be said to be an offence under Section 506 IPC.

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33. This Court on prima facie evaluation of the statement made in the complaint as well as by the witnesses do not find that the allegations made in the complaint as well as in the statement constitute any cognizable offence against the accused. What is discernible is that a long love relation was broken, when marriage proposal was at a final stage for alleged relation of the accused with some other person and the complainant demanded back the gifts and materials given to the accused by the complainant, which further aggravated the situation. An FIR and counter FIRs were lodged. However, this Court could not find out from the materials available on the record if the same are taken at its face value and treat it to be correct, any offence under Sections 417/420/506 IPC.

34. Given the aforesaid determination, this Court is of the unhesitant opinion that the learned Magistrate had wrongly issued process in the case without there any prima facie case under sections 417/420/506 IPC and accordingly, the present petition stands allowed by setting aside the impugned order dated 07.09.2017 passed by the learned Chief Judicial Magistrate, Jorhat in C. R. Case No. 137/2016 whereby cognizance of offence under Sections 417/420/506 IPC was taken against the petitioner. Resultantly, C.R. Case No. 137/2016 also stands quashed.

JUDGE

Comparing Assistant