Karnataka High Court

Sri Sagar Agarwal vs The State Of Karnataka on 5 April, 2022

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 05TH DAY OF APRIL, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.1867 OF 2022

BETWEEN:

SRI SAGAR AGARWAL
AGED ABOUT 35 YAERS
S/O SEETHARAM AGARWAL
RESIDING AT FLAT NO.10V
BLOCK-05, 10TH FLOOR
104, BIDHAN NAGAR ROAD
MERLIN LAKE VIEW APARTMENTS
ULTADANGA, KOLKATTA - 700 067.
                                                  ... PETITIONER

(BY SRI K.SUMAN SR.COUNSEL FOR
    SRI SIDDHARTH SUMAN, ADVOCATE (PHYSICAL HEARING))

AND:

1.     THE STATE OF KARNATAKA
       BY STATION HOUSE OFFICER
       KORAMANGALA POLICE STATION
       KORAMANGALA, BENGALURU
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       HIGH COURT BUILDING
       BENGALURU - 560 001.

2.     SMT. {Name-redacted}
       D/O {Name-redacted}
                                2



     {Address-redacted}
     {Address-redacted}
     {Address-redacted}
     {Address-redacted}.
                                              ... RESPONDENTS
(BY SRI SHANKAR H.S., HCGP FOR R1;
    SRI S.G.BHAGAVAN, ADVOCATE FOR R2 (PHYSICAL HEARING))


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. THE FIR REGISTERED BY THE
KORAMANGALA POLICE DATED 24.09.2018 IN CR.NO.332/2018
AGAINST THE PETITIONER THAT IS ANNEXURE-A AND ETC.,


     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioner is before this Court calling in question

proceedings in C.C.No.7256 of 2019 pending before the XLV

Additional Chief Metropolitan Magistrate, Bangalore arising out

of Crime No.332 of 2018 registered for offences punishable

under Sections 406, 417, 493, 504 and 506 of the IPC.

2. Heard the learned senior counsel Sri.K.Suman for the

petitioner, Sri.Shankar.H.S., learned High Court Government

Pleader for respondent No.1 and Sri.S.G.Bhagavan, learned

counsel for respondent No.2.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleading, are as follows:-

The petitioner claims to be an ex-student of IIT Karagpur

and working at Mohalla Tech Private Limited as a Product

Manager at Bangalore. The petitioner and the 2nd respondent got

to know each other through some acquaintance, fell in love and

also had physical relationship by sharing a room on several

occasions which according to the petitioner was on the way to

his residence. It appears that the 2nd respondent expressed her

interest in marrying the petitioner. The petitioner was not

interested in marrying the 2nd respondent. Contacts go on for

some time. On 23-09-2018 the 2nd respondent registers a

complaint against the petitioner alleging that the petitioner and

the complainant had an affair and on such affair, the petitioner

had promised to marry the 2nd respondent/complainant and had

physical relationship with her. It is also the allegation in the

complaint that parents of the petitioner initially agreed to

perform the marriage of the petitioner with the 2nd respondent/

complainant and later withdrew the said assurance. It is on this

ground the petitioner is dragged into criminal proceedings in

Crime No.332 of 2018 on the afore-quoted provisions. The

Police, after investigation, filed a charge sheet against the

petitioner. It is at that juncture the petitioner has knocked the

doors of this Court in the subject petition.

4. The learned counsel appearing for the petitioner

submits that offence under Section 406 of IPC for criminal

breach of trust, Section 417 of IPC for cheating, Section 504 or

Section 506 cannot even be laid against the petitioner, as the

offence alleged is that the petitioner had promised to marry the

2nd respondent and had withdrawn his promise and, therefore,

he has committed the offence of cheating. He would submit that

the promise of marriage cannot be an offence either under

Section 406 or under Section 420 of the IPC is the law laid down

by this Court in D.RAMESH SINHA v. STATE OF KARNATAKA

- Criminal Revision Petition No.233 of 2020 decided on

24-02-2020.

5. On the other hand, the learned counsel representing the

2nd respondent would vehemently refute the submissions and

contends that though the complainant had agreed to the

demands of the petitioner, it was only on the promise of

marriage and the petitioner declining to marry the complainant

would definitely be an act of cheating which would become

punishable under Section 406 or 417 or 420 of the IPC as the

case would be. He would submit that it is a matter of trial.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. The afore-narrated facts are not in dispute and,

therefore, are not reiterated. Section 406 of the IPC deals with

offence punishable for criminal breach of trust, ingredients of

which are found in Section 405 of the IPC. Section 417 deals

with cheating, ingredients of which are found in Section 415 of

the IPC. Section 405 of the IPC requires entrustment of a

property and unauthorized usage of the said property belonging

to the victim by the accused. There is no entrustment as is

necessary under Section 405 of the IPC in the case at hand.

Section 415 depicts ingredients necessary for cheating. The facts

obtaining in the case at hand do not constitute an offence under

Section 417 of the IPC. The Co-ordinate Bench of this Court in

D.RAMESH SINHA' s case has held as follows:

"8. Upon hearing learned counsel for the petitioner and the learned High Court Government pleader for the respondent, the point that arise for consideration is :-

'Whether any material isl placed on record by the investigating officer to frame charges against the petitioner/accused No.5 for the offence punishable under Sections 420 and 417 of IPC and the order under revision calls for any interference?'

9. After perusal of the records, they go to show that it is not in dispute that the petitioner is accused No.5, elder brother of accused No.2 and uncle of accused No.1.The marriage engagement was held in the presence of elders on 11.07.2018 and some of the dowry i.e., cash and ornaments are said to be given to accused No.1 at the time of the engagement ceremony and subsequent to the engagement ceremony, the marriage date was fixed to 28.08.2018 and 29.08.2018. Prior to that, the petitioner/accused No.5 is said to have accompanied accused Nos.1 to 4, who went to the house of the complainant and demanded further dowry of 600 grams of golden ornaments and five lakh rupees cash, due to which, the complaint came to be filed. The statement of the complainant, brother

and other witnesses says that prior to the marriage engagement also, the petitioner/accused No.5 went along with other accused and demanded golden ornaments and cash thereby the complainant's parents gave cash and golden ornaments to accused No.1 at the time of engagement ceremony and all the statements go to show that subsequent to the engagement, petitioner/accused No.5 accompanied accused Nos.1 to 4 and demanded further dowry, which goes to show that offence punishable under Sections 3 and 4 of the D.P. Act attracts against this petitioner/accused No.5 along with accused Nos.1 to 4.

10. Learned counsel brought to the notice of this Court the judgment of the Hon'ble Andhra Pradesh High Court in the case of M. Giriprasad v. K.

Munikrishna Reddy reported in LAWS (APH) 2014 3 50 and in the case of Varthya Shanker and Another vs. State of Telangana reported in LAWS (APH) 2018 6 60, wherein the Andhra Pradesh High Court has held that after the engagement, if the marriage was not performed, it will not amount to cheating and promise to marriage is not an inducement and the offence of cheating is not attracted.

11. In this case, admittedly, accused No.1 was bridegroom, whose engagement was held with complainant. Accused Nos. 2 to 4 are the family members of accused No.1. Accused No.5 though is not residing along with other accused is said to be the elder member in the family of accused No.2 and has participated in the marriage talks of accused No.1 and complainant. However, the statement of witnesses go to show that he has not induced or obtained any ornaments from the complainant and has cheated the complainant or their family members. Therefore, learned counsel rightly stated that offence under Sections 417 and 420 of IPC would not attract against this petitioner, but the trial Court though considered the same, held that the Court shall not evaluate materials and

documents on record and see whether there is a prima facie case to proceed against the accused at the time of framing of charge, but the order does not reflect what is the actual distinct charges are to be framed against each of the accused. Merely stating, there are grounds to frame charges is not enough. On the other hand, the Court is required to consider what are the charges that would attract against each of the accused. Admittedly, accused No.1 was the groom who demanded and received dowry ornaments and by making a demand for purpose of marriage, the family members i.e., accused Nos.2 to 4 also accompany accused No.1 who have been benefited out of dowry ornaments and cash but the petitioner/accused No.5 has only accompany accused Nos.1 to 4 as a family members or elder, participated and the negotiation was done by him by demanding dowry articles and cash on behalf of accused No.1. Therefore, as already stated above, offence under Sections 3 and 4 would attract against accused No.5 but not Sections 420 or 417 of IPC. This aspect is not properly considered by the trial court in its impugned order. Therefore, the order under revision suffers an error. Hence, the same requires to be set aside. Accordingly, I proceed to pass the following:-

ORDER

(i) Order under revision passed by the II Additional Senior Civil Judge and JMFC, Tumakuru in C.C.No.239/2018 on the application filed by the petitioner/accused No.5 under Section 239 of Cr.P.C is set aside.

(ii) The charge against accused No.5 under Sections 420 and 417 of IPC requires to be set aside. Accused No.5 shall have be discharged for the offence punishable under Sections 420 and 417 of IPC.

However, the matter is remitted back to the trial court for fresh consideration by taking into consideration the observations made by this Court and specify what are the charges that are going to be framed against this accused and other accused and proceed to frame the charges by taking into consideration Chapter XVII of the Cr.P.C. Accordingly, the petition is disposed of.

In view of the disposal of the main petition, pending I.A.No.1/2020 does not survive for consideration. Hence, disposed of."

In the light of the afore-quoted judgment of the Co-ordinate

Bench and the facts obtaining in the case at hand being promise

of marriage having been withdrawn, it cannot result in the

offence of cheating. Permitting further proceedings to be

continued against the petitioner would become contrary to the

judgment rendered by the Co-ordinate Bench and, therefore,

become an abuse of the process of law and results in marriage of

justice.

8. For the aforesaid reasons, the following:

ORDER

(i) The Criminal Petition is allowed.