CR.MA/4591/2003 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4591 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== ISHWARBHAI HARJIBHAI RABARI Versus STATE OF GUJARAT & another ====================================== Appearance : MR HARSHIT S TOLIA for Applicant Mr. R.C.Kodekar, APP for Respondent No.1 MR CJ VIN for Respondent No.2 ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/09/2008 ORAL JUDGMENT 1 This application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'], to quash the complaint being Criminal Case No.1432 of 2001 pending in the Court of the learned Judicial Magistrate, First Class, Surat, for the offences punishable under Sections 406, 420, 504 and 506(2) of the Indian Penal Code. 2 At the threshold, on 9th September 2003, this Court [Coram: R.P. Dholakia, J.] issued Rule making it returnable on 30.9.2003 and granted interim relief in terms of prayer paragraph 7(B). CR.MA/4591/2003 2/4 JUDGMENT 3 The short facts of the case are as under: 3.1 Respondent No.2, Ishwarbhai Karsanbhai Raika, filed the complaint in the Court of the learned Judicial Magistrate, First Class, Surat, inter alia, alleging that the engagement of son of respondent No.2 was fixed with the daughter of the applicant before 18 years as per their customary rituals and, at that point of time, some amount and golden ornaments were given to the applicant. It is further alleged in the complaint that, when the son of respondent No.2, Dinesh and daughter of the petitioner, Nita, became major, respondent No.2 reminded the petitioner for solemnizing their marriage, but, respondent No.2 was informed by the petitioner that the marriage could take place only after the marriage of the petitioner's elder daughter, Bhagwati. Even after the marriage of the petitioner's elder daughter, Bhagwati, respondent No.2 requested to solemnize the marriage of Dinesh and Nita, as stated earlier. However, the petitioner demanded Rs.50,000/- for marriage and, ultimately, the marriage could not be solemnized and, hence, the complaint. 4 Learned counsel appearing for the applicant has submitted that the complaint is nothing but abuse of process of law and the averments are pertaining to certain customs and marriage rituals of the community. He has further submitted that, even if all the allegations made in the complaint are taken at their face value and accepted in their entirety, then also, prima facie, the complaint does not disclose the offence, as alleged. It is further submitted that, even if there is any dispute, though not admitted, it is pertaining to customary and societal aspects and, at the most, may give rise to a civil proceeding. It is further submitted that the promise, as alleged in the complaint, was stated to have been given before 18 years prior to lodging of the complaint and there was no fraudulent or dishonest intention on the part of the applicant. In support CR.MA/4591/2003 3/4 JUDGMENT of his submissions, the learned counsel for the applicant has relied upon the following judgments of the Apex Court, [i] State of Haryana vs. Bhajanlal & Others; reported in AIR 1992 Supreme Court 604; [ii] G. Sagar Suri vs. State of U.P, reported in 2000 (2) SCC 636 [iii] Hridia Ranjan Prasad Verma vs. State of Bihar, reported in 2000 (4) SCC 168 with regard to exercise of power under section 482 of the Code and what constitutes of cheating, etc and submitted that, to hold a person guilty of cheating, it is necessary to show that such person has fraudulent and dishonest intention at the time of making the promise. The learned counsel for the applicant has relied upon the decision of the Apex Court in the case of Bhajanlal [supra] and submitted that the present case is covered by the the first, third and seventh categories of the cases enumerated therein. 5 I have heard learned Additional Public Prosecutor and perused the record. Learned counsel appearing for respondent No.2 is not present. 6 A bare perusal of the complaint shows that the averments and allegations made in the complaint do not reveal any of the ingredients of Sections 406, 420 and 504 of the Indian Penal Code . The recital in the complaint, even if taken at its face value, pertains to the promise alleged to have been given 18 years before about entering into a wedlock between the son of the applicant and the daughter of respondent No.2. Though validity or otherwise of such agreement under law is not the subject matter here, prima facie, the same is illegal and no such promise could have been given. Be that as it may, so far as Sections 406 and 420 of the Indian Penal Code are concerned, the learned counsel for the applicant has rightly placed reliance on the decision of Apex Court in CR.MA/4591/2003 4/4 JUDGMENT Hridia Ranjan Porasad Verma [supra] in establishing that the averments made in the complaint do not show any dishonest intention on the part of the applicant. The complaint is, therefore, nothing, but an abuse of process of law and deserves to be quashed by this Court in exercise of inherent powers under Section 482 of the Code. 7 In the result, this application is allowed. The complaint being Criminal Case No.1432 of 2001 pending in the Court of the learned Judicial Magistrate, First Class, Surat, for the offences punishable under Sections 406, 420, 504 and 506(2) of the Indian Penal Code, is quashed. Rule is made absolute. R & P, if any, be sent forthwith. (ANANT S. DAVE, J.) (swamy)