Sangitrao S. Patil, J.—Rule. Rule made returnable forthwith. With the consent of the learned counsel for the applicants and the learned A.P.P., heard finally.
2. The applicants have prayed for quashing of the proceedings in Regular Criminal Case (R.C.C.) No. 95 of 2015, pending in the Court of Judicial Magistrate First Class, Ashti, for the offences punishable under sections 417 and 420 read with section 34 of the Indian Penal Code ("I.P.C.'', for short), instituted by respondent no.1 on the basis of Crime No. 197 of 2014, registered with Police Station, Ashti.
3. Respondent No. 2 (the informant) lodged an F.I.R. on 27th December, 2014, alleging inter alia that it was decided to give his daughter namely Sunita in marriage to applicant No. 2, who was studying in law faculty. However, the date of the marriage had remained to be fixed. A meeting was held in the hospital of Dr. Deepak Bhawar on 17th November, 2011 between the informant and his relatives on one hand and the applicants on the other. In that meeting, it was decided to perform the marriage in Jageshwari Mangal Karyalaya at Ashti on 18th December, 2014. On being asked by the persons from the side of the applicants, the informant paid them Rs. 1,00,000/for purchasing the articles required for performing the marriage. The informant purchased the clothes of the bride and that of the bridegroom at Nagar and Ashti. He further purchased the ornaments for them at Ashti. He got printed the wedding cards in Ashish Press at Ashti. He made all the necessary arrangements for performing the marriage ceremony. He went to village Hingni to the farmhouse of the applicants for haldi ceremony on 17th December, 2014 at about 4.00 p.m. However, none of them was found present there. They did not attend the venue of the marriage on 18th December, 2014. Therefore, all the expenses incurred by the informant went in vain. He was humiliated and defamed. He, therefore, lodged report against the applicants in Police Station, Ashti for the above mentioned offences.
4. After completion of the investigation, the charge sheet came to be filed against the applicants on the basis of which R.C.C. No. 95 of 2015 came to be instituted for the above mentioned offences.
5. Respondent No. 2 was duly served twice with the notice of this application, but remained absent.
6. The learned counsel for the applicants submits that the ingredients of the offence of cheating are not at all disclosed in the FIR. He submits that in fact, no date, time and place for performing the marriage was actually fixed as claimed by the informant. Applicant No. 2 never approved the daughter of the informant as his bride. He further submits that even if it is accepted that applicant No. 2 had agreed to marry with the daughter of the informant but did commit breach of that promise, the offence of cheating cannot be said to have been established. In support of this contention, he relied on the judgments in the cases of Raje Ram and another v. Chander Bhan 1983 (2) R.C.R. (Criminal) 413, (Punjab and Haryana) and Jagvir Kaur v. State of Punjab and another with Gurdip Singh and others v. State of Punjab and another, 2011 (3) R.C.R. (Criminal) 192 (Panjab and Haryana).
7. In the case of Raje Ram and another (supra), the customary gifts were given to the would be bride by her in-laws at the time of the engagement. However, subsequently the engagement had to be broken off. Therefore, the bride and her close relatives were prosecuted for the offences punishable under sections 406 and 420 of the I.P.C. While quashing the criminal proceedings in that case, it was observed in paragraph No. 4 of the judgment as under :
"The point to be considered in this petition is whether the customary gifts given by the complainant to the engaged girl Saroj Kumari at the time of the "Chuni" ceremony were given to her in trust and/or could these articles be trust with the petitioners and their co-accused. As per the allegations in the complaint these articles were gifted at the time of the engagement in observance of the customary ceremony of "Chuni". Hardly can such an act be called in placing those articles in the hands of the engaged girl or the accused persons in trust, express or implied, so as to fall within the meaning of section 406, Indian Penal Code. At best, these articles might have become returnable dependant on the usages and practices prevalent in the community. But at the time when they were given and taken, it cannot be said that any kind of trust had been created with the accused persons. It is a different matter altogether that the accused persons may be civilly liable to return those articles. For that matter, the criminal court is not the right forum. For that purpose, the complainant has to knock the doors of the civil Court. The proceedings before the criminal Court are thus clearly an abuse of the process of the Court requiring this Court to interfere at the initial stages."
8. In the case of Jagvir Kaur (supra), the facts of that case, as narrated in paragraph No. 4 of the judgment, read thus :" Facts in short are that the parents of the petitioner had arranged her engagement with Gurpreet Singh son of Maan Singhrespondent No.2 about five years earlier. In June, 2005, the petitioner, her parents and brother Raghbir Singh came from Canada to India for solemnization of the marriage of the petitioner. Respondetn No.2 and his son Gurpreet Singh demanded huge amount as dowry besides Safari Vehicle from the parents of the petitioner. The petitioner is stated to have learnt that respondent No.2 and his son were greedy persons. She as well as her parents were shocked and the petitioner refused to marry Gurpreet Singh. Thereafter, respondent No. 2 got the present FIR recorded against the petitioner, her parents and others on the allegation that the marriage of the petitioner and Gurpreet Singh was scheduled to be solemnized on 23.11.2005 and that he had already distributed wedding cards to his friends and relatives and that an amount of Rs.10,00,000/had been spent by him at the engagement ceremony and other consultations had disappeared from the village and had gone back to Canada. Thus, he has been cheated. The petitioner, her brother and parents were declared Proclaimed offender as they were in Canada and could not come back to India. However, the other three accused namely, Sukhjit Singh, Baljinder and Harvinder Kaur appeared in the Court to face trial. The trial Court at the time of consideration of the charge, held that no offence was made out against them and accordingly, discharged them vide order dated 04.01.2006."
9. In the present case, there is absolutely no mention in the FIR that the applicants, right from the inception, had an intention not to perform the marriage with the daughter of the informant and on the pretext of performing marriage of applicant No. 2 with the daughter of the informant, induced him to part with any amount or to take any steps for arranging the marriage. The dishonest intention, right from the beginning, which is an essential ingredient for constituting the offence of cheating, is totally absent in the present case. The facts narrated in the FIR exfacie show that this is, at the most, a case of breach of the promise to perform the marriage. Consequently, no offence of cheating punishable either under section 417 or section 420 of the I.P.C. can be said to have been disclosed against the applicants. Such a matter can not be allowed to be fought before the criminal Court. In case the informant desires, he may explore the possibility of taking action against the wrong doers for breach of promise before the civil Court and claim compensation/damages. In our opinion, considering the facts of the present case, the continuation of the criminal proceedings against the applicants would be nothing but an abuse of the process of law. In the circumstances, the proceedings bearing R.C.C. No. 95 of 2015, instituted against the applicants would not be maintainable and would be liable to be quashed and set aside. Hence, the order :
(i) The criminal application is allowed.
(ii) The criminal proceedings bearing Regular Criminal Case No. 95 of 2015, pending before the Judicial Magistrate First Class, Ashti for the offences punishable under section 417 and 420 read with Sections 34 of the Indian Penal Code, instituted on the basis of FIR No. 197 of 2014, dated 27th December, 2014, registered in Police Station, Ashti, District Beed, are quashed and set aside.
(iii) The Rule is made absolute in the above terms.
