Parents Concealed the facts at
the time of Marriage.
“ father of
the bride told that his daughter is Xth standard pass. The complainant on her
good relying upon representation of accused petitioner No. 1 and other
relatives of the bride without making any enquiry settled the marriage of her
son with accused petitioner No. 2 under Special Marriage Act and the marriage
was solemnised on 2.12.99. On the night of 'fulsajya' complainant's son discovered
that he has been deceived by the father of the bride who has suppressed about
old mental aliment of his daughter which is incurable.”
Calcutta High Court
Shibnath Mukherjee And Ors. vs State Of West Bengal And Anr. on 4
February, 2005
Equivalent citations: 2005 (4) CHN 447
Author: P Sinha
Bench: P Sinha
JUDGMENT
P.N.
Sinha, J.
1. This
revisional application under Section 482 of Cr. PC has been preferred by the
petitioners for quashing complaint case No. C-661 of 2002 under Sections 419
and 420 of the Indian Penal Code (in short IPC) now pending in the Court of the
learned Chief Judicial Magistrate (in short CJM), Barasat and the order dated
16.9.02 passed by the learned CJM issuing process against the petitioners and
another accused.
2. The
aforesaid complaint case was started on the basis of complaint lodged by O.P.
No. 2 as complainant in the Court of the learned CJM against these petitioners
and another accused. It was the allegation of complainant that on the basis of
an advertisement in 'Bartaman' Bengali daily newspaper dated 21.2.99 a marriage
negotiation between Pranabesh Bagchi, son of complainant and petitioner No. 2
Mohua Bagchi nee Mukherjee was made and in the newspaper the advertisement was
published as 'quick marriage, East Bengal Mukherjee, 20/5'1" class X
standard, really beautiful, expert in household works, father Central
Government employee, no objection in business'. During negotiation the
petitioner No. 1, father of the bride told that his daughter is Xth standard
pass. The complainant on her good relying upon representation of accused
petitioner No. 1 and other relatives of the bride without making any enquiry
settled the marriage of her son with accused petitioner No. 2 under Special
Marriage Act and the marriage was solemnised on 2.12.99. On the night of
'fulsajya' complainant's son discovered that he has been deceived by the father
of the bride who has suppressed about old mental aliment of his daughter which
is incurable. After the marriage, it was noticed that accused petitioner No. 2
used to leave her wearing apparels in front of other persons without caring for
privacy and she uttered irrelevant talks. During her stay in the matrimonial
home the complainant's son tried to have co-habitation with his wife, the
accused No. 2, but the attempt failed as right hand of accused No. 2 started
trembling abnormally. Accused No. 2 disclosed to the son of complainant that it
was due to the result of some kind of disease and doctor advised her that, if
she takes regular medicine throughout her life, the disease . would remain
under control but would not be cured. Thereafter, the complainant made
appointment with Dr. Braja Ghosh, a neurologist for treatment of accused No. 2
and Dr. Ghosh referred the case to a reputed neorophysicist Dr. Narayan
Chakraborty. Dr. Chakraborty after examining accused No. 2 declared that she was
suffering from mental ailment since her birth. Subsequently, accused No. 2
filed an application under Section 36 of the Special Marriage Act in the Court
of the learned Additional District Judge, 6th Court, Alipore. In the
matrimonial suit she stated that she read upto class IX standard and she was
not class X standard pass. The complainant accordingly lodged the complaint
against the accused petitioners and another for the offence of cheating. It
appears that the learned CJM by order dated 16.9.02 issued process under
Sections 419 and 420 of IPC against the petitioners and another. Thereafter,
the petitioners have moved this Court for quashing the proceeding and also for
quashing the impugned order passed by the learned Magistrate issuing process
against them.
3. Mr.
Joymalya Bagchi, learned Advocate for the petitioners contended that a plain
reading of the petition of complaint without adding or subtracting anything to
it would clearly indicate that there is no element of offence under Sections
419 and 420 of IPC. Section 30 of the IPC describes what is valuable security.
The complaint discloses that there was no inducement and there was no delivery
of property and there was no wrongful loss to the complainant and wrongful gain
to the accused persons. There are several inconsistencies in different
paragraphs of the complaint. The petitioner No. 2, the daughter-in-law of
complainant started a case under Section 498A of IPC against her husband and
other in-laws, and thereafter, as a counter blast the complainant instituted
the present proceeding. There cannot be any misrepresentation if the bride read
upto class IX and not class X. It does not attract any element of cheating.
Matter would have been different if the bride i.e. petitioner No. 2 was totally
illiterate. The mental incapacity of bride since birth cannot be regarded as
suppression and concealment of incurable disease amounting to cheating.
4. Mr.
Bagchi further contended that mental illness per se is not a ground to make a
girl incapable of marriage. The husband, son of complainant has instituted a
suit for divorce against petitioner No. 2 on the ground of desertion. If the
husband files the suit against the wife on the ground of desertion, the
allegation by the husband or her mother regarding cheating, inducement,
deception etc. does not arise at all. No property was given to the accused
persons nor anything was taken away by the accused persons. The allegation that
the wife took away her property cannot attract any offence as the wife alone
has right over her 'stridhan' properties. Before the learned Additional
District Judge, 6th Court at Alipore evidence was recorded over the application
filed by petitioner No. 2 claiming alimony pendente life and in the said Court
the petitioner No. 2 was examined as a witness. If she was suffering from
mental disorder and mental incapacity of high degree, the learned Additional
District Judge would have noted it in the order sheet or in the deposition
sheet. Her evidence in the Court of the learned Additional District Judge does
not reveal that she is unable to pursue her normal course of life and unable to
understand her good or bad. It would be evident that she answered the questions
properly and with relevancy and after considering everything learned Judge allowed
her prayer for alimony pendente lite. Accordingly, in the instant complaint
there is no element of cheating at all against the accused persons.
Continuation of the criminal proceeding would be an abuse of the process of
Court and being so the said complaint case should be quashed. In support of his
contention Mr. Bagchi relied upon the decisions namely Anil Chandra
Pitarnbardas Sagar and Ors. v. Rajesh Harjivandas Jhaveri and Ors. reported in
1991 Cr. L J 487, Dr. Sharma's Nurshing Home, v. Delhi Admn. and Ors., reported
in 1999 SCC (Cri) 91, Ramkrishna Baburao Maske v. Kisan Shivraj Shelke and
Ors., reported in 1975 Cr. LJ 173, Zandu
Pharmaceutical Works Limited and Ors. v. Md. Sharaful. Hague and Ors., reported
in JT 2004(9) SC 486 and Ramesh Kumar Verma and Ors. v. Jai Shankar Prasad
Srivastava, .
5. On the
contrary, Mr. Amit Bhattacharjee, learned Advocate for the opposite party No. 2
contended that perusing the complaint learned Magistrate took cognizance and
thereafter examined the complainant and her witnesses under Section 200 Cr. PC
and finding that sufficient materials have been disclosed for the alleged
offence and to proceed further issued process under Section 204 of Cr. PC.
There was no illegality in the impugned order passed by the learned CJM. In the
advertisement only good side of the bride were disclosed and the dark or the
black side of the bride were not mentioned. The advertisement attracted the
complainant and the advertisement induced the complainant to make the marriage
negotiation. The advertisement was published concealing some material facts and
intention of the advertiser was to induce parents of bridegroom and to give a
defective bride in marriage somehow. If the matter of advertisement was false
right from the beginning there are elements of cheating concerning that
advertisement and the accused persons have cheated the complainant and her son.
The complainant would not have proceeded with the marriage negotiation of her
son with the daughter of accused petitioner No. 1, if it was disclosed to her
that the bride was suffering from mental incapacity since birth. Cheating has
been defined in Section 415 of the IPC and it has two parts and in the instant
case the second part would attract and illustrations (c) and (i) as mentioned
in the Section 415 of IPC are applicable. The mental incapacity of the bride
appears from her evidence itself before the learned Additional District Judge,
6th Court, Alipore.
6. Mr.
Bhattacharjee further contended that ingredients of divorce should not be mixed
up with the elements of cheating. The father of the bride knowing fully well
that his daughter did not pass class X standard represented in such mariner
and, knowing that his daughter is suffering from incurable mental disorder or
mental incapacity since birth, did not disclose it either in the advertisement
or at the time of talks of marriage negotiation. It establishes that the
accused persons concealed some vital materials relating to marriage negotiation
and induced the complainant to give marriage of her son with the daughter of
accused No. 1. In the instant case there are elements of cheating and there is
no ground to quash the criminal proceeding. In support of his contention he
cited the decisions namely G.V. Rao v. L.H.V. Prasad and Ors., reported
in 2000 (2) L.W. (Crl) 937, Sadhu Ram and Ors. v. Kishan Kumar, reported
in 1987 Cri L. J. 1351, Subhra Pal and Ors. v. Biswarup Pal and Ors., reported
in 1990 C Cr LR (Cal) 161, Best Morning Khongthorem v. Nirmalendu Dev, reported
in AIR 1987 Gauhati 63, Som Dutt v. Raj Kumari, ,
Vimla
v. Delhi Administration, reported in 1963(2) Cr. LJ 434,
Banwarilal and Anr. v. State, and Baboo
Khan v.
State, .
7. I have
perused the revisional application and the materials on record and considered
the submissions made by the learned Advocates of the parties. A plain reading
of the complaint and the facts and circumstances behind the institution of the
complaint case against the accused petitioners establishes that there cannot be
cheating, if the bride, i.e. accused petitioner No. 2 read upto class IX and
was not class X standard pass as told by her father, the accused No. 1. There
is no great difference between class IX standard and class X standard and the
difference, if any, is of insignificance and minor in nature which is not
sufficient to attract elements of cheating. If it was found that the accused
petitioner No. 2 was illiterate and did not know at all how to read and write,
matter would have been different. In the instant case, the accused petitioner No.
2 is not an illiterate lady but, it is evident that she read upto class IX and
also gave evidence before learned Additional District Judge, 6th Court, Alipore
in Misc. Case No. 4 of 2001 under Section 36 of the Special Marriage Act in
connection with Matrimonial Suit No. 1124 of 2000. These matters establish that
petitioner No. 2 was not deaf and dumb, was not illiterate and she read upto
class IX. Accordingly, the allegation that the complainant was cheated as the
bride was not class X standard pass but was found read upto class IX only,
cannot be accepted and in the instant matter there was no cheating at all for
such allegation.
8. Now
the crux for consideration is whether the failure of the accused persons to
disclose that the petitioner No. 2 was suffering from mental incapacity or
mental disorder from her birth or since 1995 would attract element of cheating.
It is true that in the advertisement published in the matrimonial column of the
Bengali daily newspaper 'Bartaman' it was not mentioned that the bride was
suffering for mental disorder. The complainant, when the marriage negotiation
was in progress and talks were going on how two families can be united through
the nuptial tie between son of complainant and daughter of accused petitioner
No. 1, had the opportunity to see the bride when she accompanied by her son and
others visited house of accused No. 4 to see the bride and to have some talks.
It appears on that occasion the accused petitioner No. 2 did not speak anything
and kept mum and when questioned the complainant was told that the bride was
feeling shy to talk. It fails to impress me the explanation of complainant that
they relied on such submission. If the complainant applied her intelligence
properly and created pressure on the parents of the bride for talk at the very
inception she could have detected the matter whether the bride was suffering
from mental disorder or was irrelevant in talk or conversation. The accused
persons cannot be blamed for the entire episode and for the present breakdown
of the said marriage the complainant was also responsible to some extent by not
applying her proper senses and not making proper enquiry.
9. Be
that as it may, this discussion is of little consequence when the complainant
has already lodged a complaint against the accused persons and the learned CJM
has issued process against them under Sections 419 and 420 of IPC.
10. After
going through the averments of the petition of complaint and considering the
entire facts and circumstances, I find that, elements of Sections 419 and 420
of IPC are not attracted in the instant matter. In order to attract elements of
Section 419 of IPC it must be established that there was a cheating by
personation and cheating by personation has been defined in Section 416 of IPC.
In order to attract cheating by personation the following ingredients are
required. ... (1) Pretention by a person to be some other person, (2) Knowingly
substituting one person for another and (3) Representation that he or any other
person is a person other than he or such other person really is. To attract
Section 419 of IPC it must be established that the accused cheated someone and
that he did it by impersonation. In the instant matter it is clear that there
was no cheating at all by impersonation and accused No. 1 or accused No. 2 did
not cheat by impersonation. The learned CJM did not apply his mind properly by
issuing process against the accused petitioners under Section 419 of IPC.
11.
Considering the materials of complaint I am of opinion that in this case
elements of Section 420 was not at all there in the complaint and the learned
Magistrate was not right by issuing process under Section 420 of IPC. In order
to attract Section 420 of IPC it must be established that, (1) the accused must
have deceived someone, (2) by such deception the accused must induce a person,
(a) to deliver any property, or (b) to make, alter or destroy the whole or part
of the valuable security or any thing which is signed or sealed and which is
capable to being converted into a valuable property and, (iii) that the accused
did so dishonestly. In the instant matter from the complaint as well as other
facts and circumstances as disclosed therein it is evident that there was no
such deception by the accused persons to the complainant inducing her to
deliver any property or to destroy, alter whole or part of valuable security or
anything which is signed or sealed or is capable of being converted into
valuable security. The essential elements which require to fulfil or to attract
element of cheating under Section 420 of IPC are absent in the present petition
of complaint and the factual aspects depicted in the complaint do not make out
any prima facie case under Section 420 of IPC against the accused petitioners.
12.
Learned Advocates of the both parties placed some decisions in support of their
respective cases. Considering the contents of the complaint petition and the
factual aspects disclosed in the complaint, I am of opinion that, the decisions
cited by the learned Advocates of the parties do not require any threadbare
discussion. The decisions cited by them do not make out any settled principle
of law over such matter. In Anilchandra Pitatnbardas Sagar (supra) cited by the
learned Advocate for petitioner it was held that merely because sometime after
marriage eyesight of the bride was found to be slightly weak or because she had
urinary infection issue of process for cheating in relation to marriage under
Section 417 of IPC could not be justified. In Dr. Sliarma's Nursing Home (supra)
complainant admitted his brother in a nursing home and assurance given by
nursing home authorities that air conditioned rooms were available but the room
provided to the brother of complainant was found to be not air conditioned
though there was charge for such a room. It was held that offence of cheating
not made out. In Ramkrishna Baburao Maske (supra) there was concealment of fact
of pregnancy of bride at the time of marriage. It was held that as there was no
wrongful gain or wrongful loss of property, involved dishonest concealment of
fact cannot be said to have been established and there was no offence of
cheating. Other decisions cited by the learned Advocate for petitioners do not
require discussion as in my opinion these decisions are not relevant in the
facts and circumstances of the present case.
13. In
Sadhu Ram (supra) cited by the learned Advocate for the opposite party No. 2
the accused concealed that his son was suffering from mental disorder and
complainant accepted the marriage proposal and the marriage was celebrated.
Subsequently, complainant filed a case of cheating against accused and the
Delhi High Court held that complaint cannot be quashed. In Som Dutt (supra)
there was an arranged marriage and the wife though seven years older than her
husband was shown one year younger during marriage negotiation. In a suit for
decree of nullity the Punjab and Haryana High Court held that marriage is
liable to be annulled. In Best Morning Khongthohrem (supra) the husband
underwent vasectomy before marriage and it was not disclosed to the wife before
marriage. The Special Bench of Gauhati High Court held that consent of the wife
to the marriage was thus obtained by fraud and a decree of nullity of marriage
could be passed in the facts and circumstances even though the husband could
not be said to be impotent at the relevant time.
14. The
discussion of the above decisions cited by the learned Advocates of the parties
reveal that the Bombay High Court and the other High Courts were of different
views relating to cheating in marriage. The grounds of decree of nullity of
marriage or decree for divorce cannot be identical to attract elements of
cheating in all respects. No reliable decision of the Hon'ble Supreme Court of
India has been cited before me to form opinion regarding legal principles as to
whether under such facts and circumstances cheating in marriage negotiation was
made or not. Accordingly, the decisions cited by the parties cannot make out
the foundation of law in the instant matter. Considering the facts and
circumstances of the present case let me decide whether there was any element
of cheating and whether the complaint is maintainable.
15. I
have already observed in the previous paragraphs that in the instant case there
is no element of Sections 419 and 420 of IPC and the learned Magistrate was not
right by issuing process under these two sections. Considering the entire
matter and reading the petition of complaint I am of opinion that in the
instant case in order to prove cheating it has to be proved by the complainant
that they were cheated by the accused persons with the knowledge that they were
likely to cause wrongful loss to her. Wrongful loss has been defined in Section
23 of the IPC and it signifies that loss by unlawful means of property to which
the person losing is legally entitled. Sections 419 and 420 and even Section
418 of IPC cannot be applied in such matter as the offence alleged herein does
not relate to any property and accordingly question of knowledge of wrongful
loss does not arise. Considering the factual aspects disclosed in the complaint
it appears to me that prima facie a case under Section 417 of IPC was there for
which the criminal proceeding could have been proceeded with, though the
learned Magistrate did not issue process under Section 417 of IPC and learned.
Magistrate could have been directed to proceed under that section. But the
prosecution for offence under Section 417 of IPC in the present case cannot be
continued with as such offence is barred by limitation. The punishment under
Section 417 of IPC is imprisonment of either description for a term which may
extend to one year, or with fine or with both. Section 468(1) of Cr. PC
prescribes that no Court shall take cognizance of offence after the expiry of
period of limitation and sub-section (2) of Section 468 prescribes that the
period of limitation shall be --
(a) ...
(b) One
year if the offence is punishable with imprisonment for a term not exceeding
one year,
(c) Three
years if the offence is punishable with imprisonment for a term exceeding one
year but bot exceeding three years.
16. The
petition of complaint reveals that the marriage was solemnised on 2.12.99. On
the night of 'Fulsajya', the son of the complainant discovered that the bride
was suffering from old mental ailment which is incurable. It was also disclosed
in the complaint that during the short span of stay of the bride in matrimonial
home, the son of the complainant tried to have co-habitation with the bride but
failed as right hand of the bride started trembling abnormally and the bride
disclosed to him that she is suffering from some mental disorder and neuro
problems and her disease is not curable. It is clear, therefore, on 4.12.99 or
at least on 5.12.99 the complainant was aware of the mental disorder of accused
No. 2 but the complaint was not filed within period of limitation and the
complaint was filed on 18.5.2002, more than one year after the knowledge of the
mental disorder of accused petitioner No. 2. Complaint was conspicuously absent
relating to dates of incident including date of failure of husband to have
cohabitation with the wife, date of examination of wife by doctors etc. and
learned Magistrate before issuing process did not consider whether there was
bar of limitation. Section 469 of Cr. PC prescribes that period of limitation
relating to an offence shall commence on the date of offence or where the
commission of offence was not known to the person aggrieved by the offence, the
first day on which such offence comes to the knowledge of such person. The
complaint had her first knowledge of alleged offence at least on 5.12.99 or
soon thereafter. The complaint was not filed within the period of limitation so
far as it relates to Section 417 of IPC and being so the proceeding cannot be permitted
to continue with under Section 417 of IPC as such offence is barred by
limitation.
17. The
above discussion make it clear that continuation of the criminal proceeding in
the Court of the learned CJM at Barasat would be an abuse of the process of the
Court. Accordingly, exercising jurisdiction under Section 482 of Cr. PC the
impugned criminal proceeding pending before the learned CJM should be quashed.
The revisional application is allowed and the criminal proceeding being
complaint case No. C-661 of 2002 pending before the learned CJM, Barasat and
the order dated 16.9.02 passed by the learned CJM in connection with the said
case are hereby quashed.
18. Send
a copy of this order to the learned Chief Judicial Magistrate, Barasat for
information and necessary action.
19.
Urgent xerox certified copy be given to the parties, if applied for,
expeditiously.
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