IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 Crl.Rev.Pet.No. 831 of 2008() ----------------------------- CMP.5602/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER/COMPLAINANT: ---------------------------------------- ULLAS, AGED 34 YEARS PARUKKARAN HOUSE, POST CHOWWA, KANNUR. BY ADV. SRI.B.PREMNATH (E) RESPONDENTS: ----------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 831 of 2008 ========================== Dated this the 24th day of July, 2008. ORDER The petitioner who was the complainant in C.M.P. No. 5602 of 2006, which was a private complaint filed by him against his wife and four of her relatives alleging commission of an offence punishable under Section 418 r/w Section 34 IPC, challenges the order dated 17.08.2007 passed by the Judicial First Class Magistrate-I, Kannur dismissing the complaint. 2. The case of the prosecution can be summarised as follows:- The marriage between the petitioner and the 2nd accused Nisha was solemnized on 07.12.2005 in accordance with the customs and rites governing the parties. Soon after the marriage, A2 refused to share the bed with the petitioner and it was found that she was having a venereal disease. Thereafter, she had gone to her house and had admitted herself in a hospital for treatment. The other accused had suppressed the disease of the 2nd accused and had wilfully persuaded the complainant to marry A2 and thereby committed an offence punishable under Section 418 IPC. 3. On the side of the petitioner, he examined himself as CW1. His brother, mother and uncle were examined as CWs 2 to 4. CRL.R.P. NO. 831/2008 : 2: Admittedly, CWs 2 to 4 cannot have any direct knowledge about the alleged disease of the 2nd accused. The doctor who was examined as CW5, merely stated that he examined A2 on 03.02.2006 and A2 was having a primary herpes genetalis with recent bacterial infection. It was not elicited through CW5, doctor that this was a sexually transmitted disease or could have been transmitted through any pre- marital sex. Herpes genetalis is only an infection and is transmitted by sexual contact. That does not mean that A2 was suffering from venereal disease. Even according to the petitioner, he did not lodge any complaint either before the court below or before the Family Court seeking decree of nullity of marriage soon after discovering the alleged venereal disease. There was no material before the court below to indicate that four of the relatives of A2 had deliberately suppressed the alleged illness suffered by A2 so as to justify their prosecution for an offence punishable under Section 418 IPC. The learned Magistrate, according to me, rightly concluded that in order to constitute an act or omission within the meaning of Section 418 IPC, there should be cheating by the accused who were under a legal obligation to protect the interest of the complainant and they knew that the complainant was likely to suffer wrongful loss on account of their conduct. The solemnization of the marriage between the complainant and A2 by the CRL.R.P. NO. 831/2008 : 3: other accused cannot come within the four corners of the alleged occurrence. Admittedly, the petitioner has moved the Family Court for dissolution of the marriage. It is also an admitted fact that the matrimonial relationship between the petitioner and the 2nd accused was brought to an end and even gold ornaments and thali were returned to the petitioner. Under these circumstances, I see no ground to interfere with the discretion exercised by the learned Magistrate dismissing the complaint under Section 203 Cr.P.C. This Crl. R.P. is accordingly dismissed. Dated this the 24th day of July, 2008. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 831/2008 : 4: