1 cri-appln.8-11 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.8 of 2011 The State of Maharashtra ..Applicant Vs. Nagesh Ramchandra Sutkar ...Respondent Mrs.A.S. Pai, A.P.P., for State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 24TH FEBRUARY, 2011. P.C. Heard Mrs. Pai, the learned A.P.P., for the applicant-State. This is an application filed by the State seeking leave to appeal under Section 378(3) of Cr.P.C., against the order of acquittal passed in Sessions Case No.242 of 2004 by the learned Additional Sessions Judge at Solapur. The respondent was tried for the offences punishable under Section 376, 377, 417 and 312 of I.P.C. 2 cri-appln.8-11 2. As per the prosecution case the complainant is a married lady with four children i.e. two sons and two daughters. Her husband went to Saudi Arabia in August, 1987 and left her behind with four children. All the four children were being brought up by the complainant's brother and she joined the General Midwifery nursing course at Solapur from August, 1990 and it was a 3 year course. She did not hear from her husband for about six years. She met the accused at her hostel and they were known each other because he was her teacher in the High School days. She alleged that the accused lured her with many promises including to take care of her children and find her employment and subsequently she developed physical relationship with him. This relationship continued for about 6 years and he used to call her at the place of his duty on and off and she would stay with him for few days and again return. They were also together in Maharashtra Sadan, New Delhi for 4-5 days. However, in 1999 she went to the house of the accused at Daund and insisted upon him to marry her, but he declined to enter into such a relationship. As per the complainant this was against the promises the accused had made to her and, therefore, she started filing complaints and ultimately the accused came to be tried in Sessions Case No.242 of 2004. 3 cri-appln.8-11 3. The prosecution examined in all 17 witnesses. The learned Judge of the trial Court considered the evidence as well as the law laid down on the interpretations of Section 376 of the Cr.P.C., and more particularly in the case of Uday vs. State of Karnataka 2003 (2) Crimes, 176 (SC) and Anwar Khan Ikbal Khan vs. State of Maharashtra, 2010 All M.R. (Cri.) 2124. In para.15 of the judgment the trial Court concluded:- “....In this particular case, there was sexual relations between complainant since May, 1993 till October, 19999 for the period of six year and for the reasons discussed above, it cannot be permitted to be said that there was mistaken belief of complainant that accused would marry with her and would take her care so also of her children's care. Thus it was case of free consent to have sexual relations between complainant and accused in this case. Consequently it would not amount to rape within the ambit of Sec.375 of Indian Penal Code.” 4. The trial Court also noted that there was no iota of material to substantiate that accused persuaded or lured to the complainant to do sexual intercourse on promise to marry her and made her to believe that she would be lawfully married with him in future. Both of them being government servants there was no possibility performing second marriage by the accused when his first marriage is subsisting and so also the case of 4 cri-appln.8-11 the complainant. 5. Mrs. Pai, the learned A.P.P., in all fairness gave up the challenge to the order of acquittal vis-a-vis the offence punishable under Sections 376 and 377 of the I.P.C., but submitted that the case for the offence punishable under Section 417 of I.P.C. needs to be reconsidered. 6. Section 415 of I.P.C., defines “cheating” and reads as under:- “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”. 7. The oral deposition copies of P.W.1, P.W.4, P.W.5, P.W.15, the complainant have been placed on record and we have also perused the record and proceedings. There is no iota of evidence even for the offence punishable under Section 415 of I.P.C. i.e. cheating. The trial Court was justified, in the peculiar facts of this case, to hold that the relationshhip between the complainant and the accused, if any, continued by consent of 5 cri-appln.8-11 both of them. 8. Hence leave to appeal is refused and the application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)