CH.Kanakaraju @ Chinnam Kanakaraju vs State of Telangana

Juvvadi Sridevi, J

This Criminal Petition is filed under Section 482 of Cr.P.C. by the petitioner-accused seeking to quash the proceedings against him in C.C.No.11342 of 2021 on the file of the XVII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad (for short ‘trial Court’), pertaining to Crime No.446 of 2021 of P.S. Jubilee Hills, registered for the offences under Sections 406, 417 and 420 of the Indian Penal Code (for short ‘IPC’).

Heard Sri P.Vishnuvardhana Reddy, learned Senior Counsel for the petitioner and Mrs. S.Madhavi, learned Assistant Public Prosecutor appearing for the respondent-State. No representation on behalf of respondent No.2. Perused the record.

The case of the prosecution, in brief, is that the petitioner-accused is the paternal aunt’s son of de facto complainant. In the year 2012, the petitioner went to U.S. to pursue his education. Since 2018, the petitioner and the de facto complainant are chatting over phone. The petitioner-accused proposed the de facto complainant and said that he will marry her, due to which, the de facto complainant has rejected all the matches. On returning to India in April, 2021, the petitioner informed the de facto complainant that his parents are against their marriage, but he will convince them and asked her to wait. Thereafter, the de facto complainant came to know that the petitioner-accused is ready to marry another woman. When the de facto complainant and her family members questioned him, the petitioner-accused refused to marry her. Basing on the said complaint, a case in Crime No.446 of 2021 was registered against the petitioner-accused and after completion of investigation, charge sheet was filed before the trial Court. The same was taken cognizance and numbered as C.C.No.11342 of 2021 for the aforesaid offences.

Learned Senior Counsel for the petitioner submits that the petitioner-accused is innocent and has been falsely implicated in the case. Since the petitioner is in good profession and earning a handsome salary, the de facto complainant developed love towards him and started asking him to marry her. However, as the petitioner-accused did not pay any attention to her demands, the present complaint was foisted against him by the de facto complainant, with an intention to hinder his job and blackmail to marry her. He further submits that there is no such relationship between the petitioner and the de facto complainant as alleged in the complaint, hence, the question of petitioner defrauding the de facto complainant does not arise. Even assuming that if the allegations of love affair and the promise made by the petitioner to marry the de facto complainant are true, still, the same would not make out the offences alleged, as the mere promise of marriage would not amount to cheating by any stretch, since there is no allegation of either taking advantage of the de facto complainant or her modesty, taking money and anything valuable. He further submits that the petitioner has a right to select his life partner. There are no specific allegations against the petitioner and the ingredients of the offences alleged against him are not made out. Thus, he prayed to quash the proceedings against the petitioner.

On the other hand, the learned Assistant Public Prosecutor contended that there are specific allegations against the petitioner and the allegations levelled in the complaint as well as in the charge sheet are subject matter of trial, and hence, this is not a fit case to quash the proceedings at this stage. Accordingly, she prayed to dismiss the petition.

For the sake of convenience, Sections 406, 417 and 420 IPC is extracted hereunder:

Punishment for criminal breach of trust.—

Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Punishment for cheating.—

Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Cheating and dishonestly inducing delivery of property.—

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In the judgment of State of Haryana and others v. CH.Bhajan Lal and others  1992 SCC (Cri) 426 , the Hon’ble Supreme Court held as follows:

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In  the  judgment  of  Raju  Krishna  Shedbalkar  v. State of Karnataka and another 2024 SCC OnLine SC 200 the Hon’ble Supreme Court, at paragraph Nos.8 and 11, held as follows:

“8. In the case of Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, this Court held as under:

“15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

(Emphasis supplied)

We do not see how an offence even under Section 417 of IPC is made out against the present appellant. There can be multiple reasons for initiating a marriage proposal and then the proposal not reaching the desired end. It may in a given case involve cheating; it is possible theoretically yet in order to prove an offence of cheating in such cases prosecution must have reliable and trustworthy evidence in order to first prosecute such a case. There is no such evidence before the prosecution and therefore no offence under Section 417 is also made out. Consequently, we allow the appeal and set aside the order of the Trial Court to the extent it has refrained from quashing the proceedings under Section 417 IPC against the present appellant. The petition succeeds, the appeal is allowed, to the extent stated above.”

As seen from the record, the allegation against the petitioner is that he promised to marry the de facto complainant and thereafter, he cheated her by denying to marry her. For the offence of cheating, the existence of a fraudulent or dishonest intention of making initial promise or existence thereof from the very inception is a condition precedent. Mere breach of promise at a later point of time cannot be said to be a false promise to attract the offence of cheating. Except the allegation of the petitioner and the de facto complainant chatting with each other and he promised to marry her, prima facie, the allegations in the complaint, FIR or the charge sheet do not disclose that the petitioner has made a promise to the de facto complainant in a bad faith and with an intention to deceive her, from the inception. Moreover, there is no allegation against the petitioner of either taking advantage of the de facto complainant or her modesty, taking money and anything valuable. In the said circumstances and in view of the law laid down by the Hon’ble Supreme Court in the judgments referred to above, the continuation of the proceedings against the petitioner amounts to abuse of process of the law, and hence, the same are liable to be quashed.

Accordingly, this Criminal Petition is allowed, quashing the proceedings against the petitioner-accused in C.C.No.11342 of 2021 on the file of the XVII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.

Pending miscellaneous applications, if any, shall stand closed.