To construct a fraudulent promise, the promise maker must have had no intention of keeping his word when he made it: Tripura High Court

 HIGH COURT OF TRIPURA Crl. Petn. No.11 2020 Sri Jayanta Chakraborty S O. Sri Jogesh Ch. Chakraborty Resident of flat C 3 Mayangan Apartment 2nd Floor 3 1 B.G. Ghosh Sarani Bhadra Kali Hooghli West Bengal Pin 712232 P.S. Uttar Para C O OTPC ONGC Tripura Power Ltd. Palatana Gomati District. Present address Gouri Hotel Udaipur Central Road Udaipur Town P.S. R K Pur Dist. Gomati Tripura. ..…Petitioner(s) Versus 1. The State Of Tripura 2. Miss Ekata Deb D O. Sri Ankush Deb of Agartala Joynagar Road No. 6 P.S. West Tripura. Present Address Association of Social Health in India Mangalalok Nari Niketan Swadhar Greh Jagatpur Kali Bari Road Indranagar Agartala P.S. East Agartala Dist. West Tripura. ..…Respondent(s) : Mr. S. Sarkar Advocate. For Petitioner(s) For Respondent No.1 For Respondent No.2 : Ms. R. Purkayastha Advocate. : Mr. Sumit Debnath Addl. P.P. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment : 05.02.2021. Whether fit for reporting : No. JUDGMENT & ORDERPetitioner original accused has prayed for quashing of an FIR dated 12th April 2019 lodged by the respondent No.2 herein before Superintendent of Police Gomati as well as the charge sheet filed by the police upon completion of investigation pursuant to the said FIR. Brief facts are that the petitioner is a Senior Manager of ONGC Tripura Power Corporation Limited „OTPCL‟ for short). The complainant was also an employee of the said Corporation but at a much junior level. She lodged the said FIR against the petitioner in which she had made following allegations: She admitted that there are photographs where she and the accused are seen together in some of which the wife of the accused and other family members are also there. She stated that she and the accused were spending conjugal relationship with each other and spending time together and behaving like a married couple since September 2015 till recently. All the employees of OTPCL also knew about their relationship. During the entire period from September 2015 till 6th April 2019 she and the accused were spending time together as a married couple however the accused being already married and having a son her position was like a mistress. She also knew that the accused was not going to leave his family and accept her as his wife. She had accepted the said position because the accused had spent close to 20 lakhs of rupees for her higher studies for her psychological therapies and also for her business. She continued to bear her own living expenses herself. Sometimes the accused would help her in these matters also. She further stated that the accused was living with his wife son and parents. She desired to meet his parents and that the accused should disclose to them about their relationship. Except his family members everyone else knew about the relationship and that they were living together out of free will “with no false promises to be taken by him for marrying me”. According to her she was informed by the accused that his wife was mentally sick had no money and therefore would not be able to take care of herself if divorced. Even considering his son‟s life he would not divorce his wife. On 4th April 2019 she asked the accused to take her to his house to meet his parents and wife and son and to disclose them about their relationship which he refused. She ultimately approached a police station where upon the accused and his father came to the police station and abused her. After this incident the accused has stopped communicating with her and has blocked her communications. This is the gist of the complaint filed by the respondent No.2. The police carried out the investigation and filed a charge sheet in which the petitioner has been charged with commission of offences punishable under Sections 376 419 and 354A(3) of Indian Penal Codeof IPC. We would refer to all these provisions a short while later. Counsel for the complainant has referred to the offence of bigamy punishable under Section 494 of IPC. We would examine this provision also. For the present we may recall the complainant in the complaint had candidly stated that she had built very intimate relationship with the accused out of her free will. She specifically stated that no false promise of marriage was made by the accused. She has also narrated that continuously for close to 4 years she and the accused lived like husband and wife. This FIR thus does not indicate a slightest ground for contending that the consent given to the accused for physical relationship was not a free consent. She has not alleged either misconception of fact on her part or any misrepresentation on part of the accused which led her to giving the consent. To reiterate in the FIR she was specific that she was aware about the marital status of the accused and that she willingly agreed to a relationship with him. In fact she has stated that the accused made it clear to her that under his circumstances he would not divorce his wife. She has not alleged that the accused being in a supervisory position or in a controlling position in the establishment where both of them were employed he exploited her through his superior position and extracted physical relationship against her will. She admitted that the accused had financially supported her by spending large amounts for her higher education and treatments. The statement under Section 161 of Cr.P.C. recorded by the police would not change this position. She has made a few modifications in her version in this statement as compared to the FIR. However there is nothing on the record to suggest that whatever relationship she and accused had built up internally was not out of free volition on either side. Section 376 of IPC is simply not applicable. In this context we may refer to the decision of Supreme Court in case of Pramod Suryabhan Pawar versus State of Maharashtra and another reported in9 SCC 608 in which in the context of false promise of marriage for establishing physical relationship with a woman and the question of consent as referred to in Section 375 of IPC the Supreme Court after referring to large number of decisions on the point observed as under: “16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations there is a “misconception of fact” that vitiates the woman‟s “consent”. On the other hand a breach of a promise cannot be said to be a false promise. To establish a false promise the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act…. 18. To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman‟s decision to engage in the sexual act. 19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused but on the promise of marriage he established sexual relations. However the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as 19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004. 19.2. The complainant and the appellant met regularly travelled great distances to meet each other resided in each other‟s houses on multiple occasions engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was 19.3. The appellant expressed his reservations about marrying the complainant on 31 1 2014. This led to arguments between them. Despite this the appellant and the complainant continued to engage in sexual intercourse until March 2015. 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant it was done in bad faith or with the intention to deceive her. The appellant‟s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008 and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant‟s promise of marriage. Therefore even if the facts set out in the complainant‟s statements are accepted in totality no offence under Section 375 IPC has occurred.” 10. Section 419 of IPC which is another provision police has included in the charge sheet provides of punishment for cheating by personation. Offence of cheating is defined in Section 415 of IPC and can be stated to have been committed by a person who 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. Section 416 defines the offence of cheating by personation and provides that a person is said to “cheat by personation” if he cheats by pretending to be some other person or by knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person really 11. Ex facie there are no allegations of cheating by personation. Nowhere has the complainant either in the FIR or even in her statement recorded by the police ever alleged that the accused personated himself as some other person and influenced by such personation she give consent for physical relationship. I am prepared to go a step beyond and examine whether the offence of cheating with or without personation can be said to have been made out. Here also the answer has to be in the negative. As noted under Section 415 of IPC a person can be said to have committed the offence of cheating if he has deceived a person fraudulently or dishonestly into inducing such a person to do or not to do certain act which the person otherwise would not have done or omitted. In the present case there are no allegations of deception by the accused fraudulently or dishonestly. 12. Section 354A of IPC refers to Sexual harassment and punishment for such sexual harassment. Sub Section of Section 354A defines the offence of sexual harassment. A man who commits any of the acts referred to in clauses to of sub Section shall be guilty of offence of sexual harassment and these clauses arephysical contact and advances involving unwelcome and explicit sexual overtures a demand or request for sexual favours showing pornography against the will of a woman and making sexually coloured remarks. Sub Section of Section 354 A provides for punishment for the offence specified in clause iv) of sub Sectionnamely making sexually coloured remarks. I have not seen any indication in either FIR or any of the papers accompanying the charge sheet to include the said offence. 13. There was an attempt on part of the counsel for the complainant to bring the case within the definition of bigamy. Offence of bigamy is made punishable under Section 494 of IPC which provides that whoever having a husband or wife living marries in any case in which such marriage is void by a reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years. 14. There is no allegation in the complaint that the accused had married the complainant. Offence of bigamy under Section 494 of IPC can be said to have been made out only when a person with a spouse living and subsisting marriage marries another person. Under Section 198 of Cr.P.C. a complaint for bigamy can be made only by a person aggrieved. Even if the case of the complainant was that she and the accused had performed a ceremony of marriage since she herself was aware about the subsisting marriage of the accused with his wife it is hugely doubtful whether she can be said to be the person aggrieved. 15. Under the circumstances impugned FIR dated 14.05.2019 and the charge sheet filed by the police on the basis of such an FIR are quashed. Petition is allowed. Pending application(s) if any stands disposed of. CJ sima 

Summary: Where it is wrong to agree to marry and where the manufacturer does not want to keep the promise itself, but rather to mislead the woman to get her to enter into sexual intercourse, a misconception arises that the woman’s consent is vitiated. On the other hand, it cannot be said that a violation of a contract is a mistaken premise. The man making the vow should not have intended to keep his word when he gave it to create a false promise. The judgement was passed by the High Court of Tripura in the case of Jayanta Chakraborty v. The State of Tripura [Crl. Petn. No.11/2020] by Single Bench consisting of Hon’ble Justice MR. Akil Kureshi. The facts of the case are that the petitioner is a Senior Manager of ONGC Tripura Power Corporation Limited. The complainant was also an employee of the said Corporation but at a much junior level. She lodged the said FIR against the petitioner of offences punishable under Sections 376, 419 and 354A(3) of the Indian Penal Code (IPC). Learned counsel for the petitioner, vehemently contended that neither in the FIR nor during investigation any offence is made out against the petitioner. Even if all averments made in the complaint are taken at the face value, no offence can be stated to have been committed by the petitioner. Learned counsel for the respondent submitted that the charge sheet having already been filed, the petitioner should be allowed to file a discharge application before the concerned Court which can examine the material on record more minutely and come to a proper conclusion. While relying on the apex court in the case of Pramod Suryabhan Pawar vs. the State of Maharashtra and Anr, wherein, it was held that “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a misconception of the fact that vitiates the woman’s consent. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The consent of a woman under Section 375 is vitiated on the ground of a misconception of fact where such misconception was the basis for her choosing to engage in the said act.”