Burla Laxminarayana Laxman, vs The State Of A.P., Rep By Pp.,
2022 Latest Caselaw 3513 Tel

           HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No. 1142 of 2008


JUDGMENT:

1. The appellant is convicted for the offence under

Section 417 IPC and sentenced to undergo six months

rigorous imprisonment and to pay fine of Rs.1,000/-, in

default, to suffer simple imprisonment for one month vide

judgment dated 12.09.2008 in S.C.No.88 of 2007 passed by

the Special Sessions Judge for trial of offense under SCs &

STs (POA) Act, Karimnagar (for short 'learned Sessions

Judge'). Aggrieved by the same, present appeal is filed.

However the appellant was acquitted under Section 3(1)(xii)

of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short 'the Act')

2. The case of the prosecution is that P.W.1/victim filed

complaint against the appellant stating that she was staying

in Karimnagar for five or six years. She belongs to Lambada

caste and the appellant belongs to Padmashali caste. They

were staying nearby houses in the same locality. One year

prior to the complaint, the appellant proposed to PW1

stating that he loves her and intends to marry her.

Accordingly, having accepted the love proposal, they had

sexual intimacy over a period of time, resulting in pregnancy

of P.W.1. P.W.1 asked the appellant to marry her as she

was 5 months pregnant, however the appellant refused on

the ground that P.W.1 belongs to lower caste and he cannot

marry her. P.W.1 informed to her parents and other elders,

who in turn questioned the appellant regarding marriage,

however, as the appellant refused, complaint was filed.

3. It is further case that after filing of the case during the

course of investigation, PW1 delivered a baby but died after

three months. At the time of her pregnancy, a letter Ex.P2

was prepared agreeing upon her not to reveal their

relationship with anyone and both of them signed on the

said letter.

4. Learned Sessions Judge framed charges for the

offences under Section 417 and Section 3(1)(xii) of the Act,

however the learned Sessions Judge found the appellant not

guilty for the offences under Section 3(1) (xii) of the Act but

convicted for the offence of cheating.

5. Learned counsel for the appellant would submit that

going by the statement of P.W.1 and other witnesses, no

offence of cheating is made out. Further, the prosecution is

relying upon Ex.P2, which letter was sent to the hand

writing expert, but no opinion was given regarding the

writing in the said letter. When Ex.P2 forms basis of the

complaint and involvement of the appellant to infer any kind

of cheating committed by the appellant, not proving the

same is fatal. The opinion given under Ex.P21 was that the

admitted Telugu writing of the appellant was necessary, for

which reason, no opinion was given by the handwriting

expert-P.W.14.

6. Learned counsel for the appellant, in support of his

contentions, relied upon the judgment of the Hon'ble

Supreme Court in the case of Tilak Raj vs. State of

Himachal Pradesh [(2016) 4 Supreme Court Cases 140],

wherein the Hon'ble Supreme Court held that to constitute

an offence of cheating, ingredients as mentioned in Section

415 IPC have to be made out, failing which, there cannot be

any conviction under Section 417 or 420 IPC and in the

facts and circumstances of the case, acquitted the accused.

7. Learned counsel also relied upon the judgment in the

case of Kagitha Narendra @ Sunny v. State of A.P,

through SHO Ponnur Rural Circle, rep. by Public

Prosecutor, High Court of A.P, Amaravathi [2021 (1) ALT

(CRI.)223 (S.B), wherein it was found on the basis of several

Hon'ble Supreme Court Judgments that dishonest intention

or bad faith must exist at the initial stage of the

relationship. Further, mere failure to live up to the promise

of marriage without anything more cannot be a ground to

convict a person of rape. In the said circumstances, the

appellant was acquitted and in the facts and circumstances,

it was found that the appellant therein did not have the

intention at the inception to cheat before having sexual

intercourse.

8. Learned counsel for the appellant also relied upon

judgment in the case of Hari Majhi v. The State [1990

CRI.L.J 650], wherein the Kolkata High Court found that

the accused and the victim having sexual intercourse

frequently for a period of one year on the promise but as

there was no evidence that such promise was made falsely

when it was made, the accused was found not guilty.

9. In the present case, P.W.1, who is the alleged victim

does not in any manner state that for the purpose of having

sexual relationship by the appellant with her, any false

promises were made. Even according to her complaint, both

slowly developed intimacy and participated in sex and she

got pregnant. During pregnancy, when requested, the

appellant refused to marry her for the reason of her

belonging to lower caste.

10. P.W.1 has stated that they were in love with each

other. It cannot be said that having physical intimacy was

sole reason of any false promise made by the appellant.

Since the said sexual relation between them was

consensual, it cannot be said that mere failure to marry her

at a subsequent date after being in relationship over a year

would not amount to an offence of cheating, when refused to

marry.

11. To attract an offence of cheating in cases such as this,

it has to be proved that the person had a fraudulent or

dishonest intention from the inception and thereby for the

purpose of deceiving, such person induces any person to

give consent. The person so induced was deceived and she

would not have consented to physical intimacy except for

the false promise made. Whether the promise of marriage

was made only for the reason having physical relation or not

depends on facts and circumstances of a particular case. In

the facts of the present case, the prosecution could not

make out that there was any false intention on the part of

the appellant. Admittedly slowly love blossomed and they

entered into physical relation as such it cannot be said that

the appellant has cheated P.W.1 only for the reason of

refusing to marry.

12. For the aforementioned reasons, the conviction

recorded by the learned Sessions Judge for the offence

under Section 417 of IPC is liable to be set aside and

accordingly set aside.

13. Accordingly, the Criminal Appeal is allowed setting

aside the impugned judgment dated 12.09.2008 in SC

No.88 of 2007. Since the appellant is already on bail, his

bail bonds stand cancelled.

As a sequel thereto, miscellaneous applications, if

any, shall stand closed.

________________

K.SURENDER, J Date: 07.07.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

Criminal Appeal No.1142 OF 2008

Date:07.07.2022

kvs