Jamadar Rai and Others vs Emperor

Wort, J.—This rule is directed against the conviction of two persons Jamadar Rai and Kuber Rai of an offence u/s 420 I.P.C., the second applicant Kuber Rai being found guilty of abetting the commission of the offence. The learned Magistrate seatenced them to 18 months� rigorous imprisonment and to pay a fine of Rs. 300, the fine if realized to be paid to the complainant in this case.

The facts so far as it is necessary to mention them are these: The complainant had a brother whom he desired to marry, the first applicant having a daughter and on or about the 3rd July 1929 the second applicant who was the brother-in-law of the first applicant proceeded to the village of the complainant and there it is stated arranged the marriage between the daughter of the accused and the brother of the complainant. The actual transaction was nothing more or less than a sale of this young girl to the complainant or to his brother for a sum of Rs. 1400; and the learned Sessions Judge before whom an appeal was preferred points that out. The term was as I have stated that Rs. 1,400 was to be paid to the father of the young girl to be given in marriage; it was also one of the terms that Rs. 500 should be paid in cash and that payment was in fact made.

One of the ceremonies connected with the marriage was performed some eight days after this alleged agreement and in due course the complainant went to the village of the accused for the purpose of having the marriage ceremony performed. When he arrived there with some other persons, he discovered that another marriage ceremony was being performed at the house of the accused. Explanations were asked for and then it was stated that the brother of the complainant was to be married to the daghter of one Deonarain; and it was also alleged that he refused to make the repayment of Rs. 500 which had been paid to him as earnest money. One of the witnesses for the defence had stated that no such arrangement as was alleged by the complainant had ever been made, the reason being that an arrangement had already been made for the marriage of complainant''s brother with the child of one Daonarain and it was in his evidence it appeared that it was stated that this arrangement with Daonarain preceded the arrangement between the accused and the complainant.

Now it is contended that on the facts which I have stated no criminal offence is disclosed. The learned Sessions Judge when he comes to deal with this point states that it was urged before him that the prosecution had failed to show that any deception had been practised on the complainant; but states that the evidence clearly showed that Jamadar Rai one of the accused represented to the complainant that he would marry his daughter to his brother and it was on this representation which was apparently falsa that the transaction was entered into and the payment was made. That perfectly obviously cannot be the basis of a criminal prosecution. If it can be in this case, then it is quite clear that any breach of contract must inevitably give raise to a criminal prosecution. It is as I have stated u/s 420 I.P.C. that these persons have been convicted. The section reads that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person...shall be punished with imprisonment therein provided. The section which defines cheating is Section 413 and it provides that whoever by deceiving any parson, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property is cheating.

Now the cheating or the representation if any in this case, was either the direct or implied representation that the daughter was marriageable, if I may use the expression. Now assuming for the moment that an agreement had already been entsred into with another person to marry this young girl, even so her status had not been altered and there was nothing to prevent the father of the girl from marrying her to the brother of the complainant.

If on the other hand the girl had already been married when the agreement with the appellant was entered into, the express or implied representation that the girl could be married to the complainant''s brother would have been false and could have been the basis of a criminal prosecution. In my judgment this was nothing more in the circumstances of the case than a breach of contract, that is a refusal to marry the girl to the brother of the complainant giving cause of action in a civil court and the remedy of the complainant can be obtained only in that way. In the circumstances of this case no offence u/s 420, I.P.C. has been disclosed, The conviction will be set aside and the rule made absolute.

Scroope, J.

I agree.