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P.Maheshwari vs State By Inspector Of Police on 8 May, 2019

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.05.2019

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.No.755 of 2016 and
Crl.M.P.No.355 of 2016

1.P.Maheshwari
2.M.Pongkali
3.P.Shanthi
4.P.Sathish Kumar
5.M.Palanisamy
6.M.Periya Pappa
7.Muthu
8.K.Parameshwaran … Petitioners
Vs.

1.State by Inspector of Police,
Alagapuram Police Station,
Salem District
2.Manikandan … Respondents

PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C.

praying to call for the records and quash the charge sheet in C.C.No.61 of

2015 pending on the file of the learned Judicial Magistrate No.5, Salem

District.

For Petitioners : M/s.Karan and Uday

For Respondents
For R1 : Mr.M.Mohamed Riyaz,
Additional Public Prosecutor
For R2 : Mr.M.Ravi

http://www.judis.nic.in
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ORDER

This petition has been filed to quash the proceedings in

C.C.No.61 of 2015 on the file of the learned Judicial Magistrate-V, Salem.

2. The learned counsel for the petitioner submitted that there

are totally nine accused in which the petitioners are arrayed as 1 to 8.

The case against the ninth accused was split up. The first petitioner is the

wife of the second respondent defacto complainant. The petitioners 2 to 4

are the in-laws of the second respondent and petitioners 5 to 8 are the

relatives of the first petitioner. On the private complaint filed by the

second respondent forwarded under Section 156(3) Cr.P.C. and crime has

been registered in Crime No.389 of 2014 by the first respondent for the

offences under Sections 120(b), Section420 I.P.C. After completion of

investigation, the first respondent filed final report for the offences under

Section 495, Section120(b), Section420 I.P.C. and the same has been taken cognizance

in C.C.No.61 of 2015. The crux of the allegation is that the first petitioner

got married with the second respondent on 26.11.2012. While being so,

at the time of Seemantham of the first petitioner, the second respondent

and his family members came to understand that the first petitioner was

already got married with one, Alagesan and suppressing the said earlier

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marriage, the first petitioner along with the other accused persons

conspired together and solemnized the marriage with the second

respondent.

3. The learned counsel for the petitioner further submitted that

the marriage between the petitioner and the said Alagesan happened in

the accidental manner and thereafter immediately the first petitioner filed

divorce petition in M.C.O.P.No.25 of 2011 and it was decreed in her favour

and declared that the marriage took place between the first petitioner

with the Alagesan was null and void by the decree dated 06.07.2012.

When the second respondent approached the petitioner’s family the said

fact categorically disclosed to the second respondent and his family

members also produced the decree of divorce. Only thereafter the second

respondent and his family members convinced and agreed for marriage.

4. He further submitted that the offence under Section 495

I.P.C. would not at all attract as against the petitioners, since the first

petitioner got divorce in F.C.O.P.No.25 of 2011 on the file of the Family

Court, Salem. Further so far as the other offences are concerned, there is

absolutely no conspiracy and the decree of divorce disclosed to the second

respondent and his family members and as such the petitioners never

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induced the second respondent or his family members to deliver any of

the property. Therefore, offences under Section 420 I.P.C. also not

attracted as against the petitioner and prayed for quashment of the entire

proceedings in C.C.No.61 of 2015.

5. Per contra, the learned counsel for the second respondent

submitted that the second respondent is the husband of the first

petitioner herein. The second respondent and his family members came

to understand that the first petitioner already got married with one,

Alagesan. The first petitioner and her family members namely all the

petitioners herein suppressed the said fact and got married with the

second respondent. There are material evidences to prove the charges as

against the petitioners and as such he prayed for dismissal of this quash

petition.

6. The learned Additional Public Prosecutor submitted that there

are totally nine accused in which the petitioners are arrayed as A1 to A8.

The ninth accused is absconded and the case has been split up as against

him. After completion of investigation final report was filed and the same

has been taken cognizance by the trial court for the offences under

Sections 495, Section120(b), Section420 I.P.C. The first petitioner got married already

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with one, Alagesan on 29.10.2010 itself. Thereafter she suppressed the

said fact along with the other accused persons with dishonest intention

induced the second respondent and his family members and got married

him. Further he submitted that there are material evidences to prove the

charges as against the petitioners. Though the first petitioner got divorce

from her first husband the petitioners are liable to be punished under

Section 495 I.P.C. All the petitioners suppressed the said fact and

cheated the second respondent by getting married with him. Therefore,

he prayed for dismissal of this quash petition.

7. Heard the learned counsel for the petitioners, the learned

counsel for the second respondent and the learned Additional Public

Prosecutor appearing for the first respondent.

8. The petitioners are arrayed as A1 to A8. There are totally

nine accused in which as against the ninth accused, the case has been

split up. Insofar as the petitioners are concerned, they have been

charged for the offences under Sections 495, Section420 and Section120(b) I.P.C.

Admittedly, the first petitioner got married with one, Alagesan on

29.10.2010. Immediately she filed dissolution of marriage petition in

F.C.O.P.No.25 of 2011 before the Family Court, Salem and the same was

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also decreed by the decree dated 06.07.2012. Thereafter, the first

petitioner got married with the second respondent on 26.11.2012 at

Prasanna Venkataramana Swamy Koil, China Thirupathi Village, Karuvalli

Post, Salem District. She also conceived and after Seemantham festival,

there are misunderstanding between the petitioner and the second

respondent and as such they got separated within a period of one year

from the date of their marriage. The second respondent filed divorce

petition in F.C.O.P.No.517 of 2013 before the Family Court, Salem.

9. On perusal of the divorce petition filed by the second

respondent, there is no whisper about the allegation of suppression of first

marriage by the petitioners. There is no allegation about the adultery

about the first petitioner. After filing divorce petition after a period of one

year, the second respondent lodged the complaint alleging that the

petitioners suppressed the earlier marriage and got married with the

second respondent thereby cheated the second respondent and his family

members.

10. Admittedly, the first petitioner got divorce on 06.07.2012

and only thereafter she got married with the second respondent on

26.11.2012. Therefore, the offence under Section 495 would not attract

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as against the petitioners. It is relevant to extract the provision under

Section 495 I.P.C. as follows:

“495. Same offence with concealment of former
marriage from person with whom subsequent marriage is
contracted —Whoever commits the offence defined in the last
preceding section having concealed from the person with
whom the subsequent marriage is contracted, the fact of the
former marriage, shall be punished with imprisonment of
either description for a term which may extend to ten years,
and shall also be liable to fine.”

According to the provision 494 SectionI.P.C. exception -I, the offence would not

attract if any person whose marriage with such husband or wife has been

declared void by the court of competent jurisdiction. Therefore, the

offence under Section 495 would not attract as against the petitioner.

11. Insofar as the offence under Section 420 concerned, there is

a decree of divorce obtained by the first petitioner. According to the

petitioners, the said fact categorically was disclosed to the second

respondent and his family members and arranged for marriage. Whereas

the second respondent contended that the first marriage was suppressed

by the first petitioner and her family members and got married him.

12. On perusal of the documents, it shows that the second

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respondent without even whisper about this allegation, he filed divorce

petition in F.C.O.P.No.517 of 2013 before the Family Court, Salem. After

a period of one year from the date of filing of divorce petition, he lodged

the present complaint with the above said allegations. It shows that it is

only an after thought and there is no suppression of facts by the

petitioners about the first marriage and divorce decree. If the petitioners

suppressed the above facts to his family members, it is the main ground

for divorce and definitely the second respondent would have made specific

allegation against the first petitioner in his divorce petition. That apart,

the offence under Section 420 I.P.C. would not at all attract as against the

petitioners since there is no dishonest intention for the petitioners to

induce the second respondent to deliver any property. Therefore, the

offence under Section 420 I.P.C. also not at all attracted as against the

petitioners.

13. The second respondent has alleged in the complaint that the

petitioners have committed offences under Sections 495, Section120(b), Section420

I.P.C. It would thus be necessary to examine the ingredients of the above

offences and whether the allegations made in the complaint, read on their

face, attract those offences under the penal code. Section 415 of the

Penal Code reads as thus:

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“Section 415. Cheating:- Whoever, by deceiving
any person, 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, or
intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to
cause damage or harm to that person in body, mind,
reputation or property, is said to cheat.”

The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a
person by deceiving him;

ii) (a) the person so induced should be intentionally induced to
deliver any property to any person or to consent that any person shall
retain any property, or

(b) the person so induced should be intentionally induced to
do or to omit to do anything which he would not do or omit if he were not
so deceived; and

iii) in cases covered by (ii) (b) above, the act or omission should
be one which caused or is likely to cause damage or harm to the person
induced in body, mind, reputation or property.
A fraudulent or dishonest inducement is an essential ingredient of the
offence. A person who dishonestly induces another person to deliver any
property is liable for the offence of cheating.

14. Section 420 of the Penal Code reads thus:

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“Section 420. Cheating and dishonestly

inducing deliver 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 to 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.”
The ingredients to constitute an offence under Section 420 are as follows:

i) A person must commit the offence of cheating under Section 415; and

ii) The person cheated must be dishonestly induced to

(a) deliver property to any person; or

(b) make, alter or destroy valuable security or anything signed
or sealed and capable of being converted into valuable security.

Cheating is an essential ingredient for an act to constitute an offence
under Section 420.

15.The condition necessary for an act to constitute an offence

under Section 415 of the Penal Code is that there was dishonest

inducement by the accused. No act on part of the petitioners has been

alleged that discloses an intention to induce the delivery of any property

to the petitioners by the second respondent. There is thus nothing on the

face of the complaint to indicate that the petitioners dishonestly induced

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the second respondent to deliver any property to them. Cheating is an

essential ingredient to an offence under Section 420 of the Penal Code.

The ingredient necessary to constitute the offence of cheating is not made

out from the face of the complaint and consequently, no offence under

Section 420 is made out.

16. Therefore, in view of the above discussions, there is no

conspiracy at all between the petitioners and as such the offence under

Section 120(b) is also not attracted as against the petitioners. As such

the entire proceedings are nothing but clear abuse of process of law and it

cannot be sustained as against the petitioners.

17. Accordingly, this Criminal Original Petition is allowed and the

proceedings in C.C.No.61 of 2015 pending on the file of the learned

Judicial Magistrate No.5, Salem District is quashed. Consequently,

connected miscellaneous petition is closed.

08.05.2019

lok
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order

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G.K.ILANTHIRAIYAN, J.

lok

To

1.The Inspector of Police,
Alagapuram Police Station,
Salem District

2.The learned Judicial Magistrate No.5,
Salem District.

3.The Additional Public Prosecutor,
High Court of Madras

Crl.O.P.No.755 of 2016 and
Crl.M.P.No.355 of 2016

08.05.2019

http://www.judis.nic.in

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