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
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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
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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
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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
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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
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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
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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
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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