Quashed

Akshay S/O Kailashrao Gaikwad and Another v. State of Mah. Thr. Pso City Kotwali Akola Tq. and Dist.Akola and Another

Bombay HC28 Sept 2021APL/285/2021

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay Bench at Nagpur, invoking inherent powers under Section 482 CrPC, quashed an FIR against joint applicants challenging false allegations of sexual intercourse on promise of marriage and recovery of gold.

What did the court decide?

The First Information Report bearing No.529/2020 is quashed and set aside.

Akshay S/O Kailashrao Gaikwad and Another Vs State of… — Cheating and Forgery | Bombay HC (2021)

¶1

APL.285.21.J.

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR.

¶4

CRIMINAL APPLICATION (APL) NO.285/2021

¶5

1. Akshay s/o Kailashrao Gaikwad Aged about 25 years, occu: Junior Engineer

¶6

1. Kailash Ashruji Gaikwad Aged about 51 years, occu: Teacher

¶7

1. Surekha Kailashrao Gaikwad Aged about 49 years, occu: Household

¶8

All R/o Lonar, Tq. Lonar Dist. Buldana)

¶9

..APPLICANTS

¶10

v e r s u s

¶11

State of Maharashtra Through Police Station Officer, City Kotwali, Akola Tq. & Dist. Akola.

¶12

Chaitali Gajanan Lodam Aged about 29 years occu: Household R/o Near Gajanan Mandir Gudadhi, Akola Tq. & Dist. Akola. .. RESPONDENTS

¶13

Mr Anil Mardikar, Senior Counsel with Mr. Ved R.Deshpande, Adv.for applicants Mr. T.A. Mirza, APP for respondent no.1 Mr. S.V. Sirpurkar, Adv.for respondent no.2

¶14

CORAM : V. M. DESHPANDE & AMIT B. BORKAR, JJ DATED : 28^th September, 2021.

¶15

APL.285.21.J.

¶16

¶17

ORAL JUDGMENT: (PER AMIT B BORKAR, J.)

¶18

1 . Rule . Rule is made returnable forthwith. Heard finally with the consent of respective parties.

¶19

This Application under Section 482 of the Code of Criminal Procedure is filed challenging the registration of First Information Report bearing No.529/2020 registered with non-applicant no.1-Police Station for offence punishable under Section 376 (2)(n), 328, 406, 420, 506 of the Indian Penal Code and Section 66(B) of the Information Technology Act.

¶20

The First Information Report came to be registered a against the applicants with the accusation that relationship between the applicant no.1 and non-applicant no.2 started in view of messages in social media app some time in September, 2019 and thereafter the applicant no.1 and non-applicant no.2 has sexual intercourse on promise of marriage. Thereafter from time to time the applicant no.1 promised to perform marriage with non-applicant no.2 and had sexual intercourse with non-applicant no.2. It is also alleged that the nonapplicant no.2 had handed over mangalsutra weighing 22 to 25 grams to the applicants. It is alleged that the applicant no.1 had recorded a video clip of non-applicant no.2 and threatened her that in case of

¶21

APL.285.21.J.

¶22

¶23

refusal on the part of the non-applicant no.2, the blue film would be made viral. The applicants have therefore challenged the registration of FIR by filing the present Application.

¶24

This Court had on 17^th February, 2021 issued notice to nonapplicants. The non-applicant no.1-Investigating agency have filed reply stating that it has recorded statements of the witnesses and have sufficient material available against the applicants.

¶25

The non-applicant no.2 has also filed her reply stating that the applicant no.1 has promised to marry her, but thereafter the applicant no.1 has refused to marry. It is alleged that the applicant nos. 2 and 3 did not return the golden chain, ring and mangalsutra of non-applicant no.2.

¶26

We have carefully considered the allegations in the FIR. Mr. Mardikar, learned senior counsel on behalf of the applicants made a statement that during pendency of the Application, the applicants have deposited laptop and mobile as per the condition imposed by learned single Judge of this Court in Criminal Application (ABA) No. 788/2020.

¶27

We have carefully scrutinized the allegations made against the applicants. The crux of the allegations against the applicant no.1 is to the effect that the applicant no.1 has sexual

¶28

APL.285.21.J.

¶29

¶30

intercourse with non-applicant no.2 on promise of marriage. The allegations against the applicant nos.2 and 3 are to the effect that they have not returned golden chain,mangalsutra and ring to the nonapplicant no.2.

¶31

The Hon’ble Apex Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608 , in a similar situation had quashed the First Information Report against the applicant therein. The Hon’ble Apex Court in the said case has held that, where the promise to marry is false and 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 “misconception of fact” that vitiates the woman’s consent. It is further held that mere breach of promise cannot be said to be false promise. The Hon’ble Apex Court observed that 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. In the facts of the present case, we are satisfied that there is no material on record to show that at the time of inception of relationship, the applicant no. 1 had no intention to perform marriage with the applicant No.2. We are therefore, satisfied that the continuation of the proceedings against the applicant no. 1 would amount to abuse of process of Court.

¶32

APL.285.21.J.

¶33

¶34

Insofar as the allegations against the applicant nos.2 and 3 are concerned, we are satisfied that there is no material available with the investigating agency in support of the said allegations. We are, therefore, satisfied that the prosecution against the applicants would amount to abuse of the process of the court. We, therefore, pass the following order:

¶35

ORDER

¶36

i) The First Information Report bearing No.529/2020 registered with non-applicant no.1-Police Station, for offence punishable u/ss. 376(2)(n), 328, 406, 420, 506 of the IPC and Section 66(B) of the Information Technology Act, is quashed and set aside.

¶37

ii) Rule is made absolute in the aforesaid terms.

¶38

JUDGE

¶39

JUDGE

¶40

sahare

Akshay S/O Kailashrao Gaikwad and Another v. State of Mah. Thr. Pso City Kotwali Akola Tq. and Dist.Akola and Another

Case brief

What is this about?

What did the court decide?

Akshay S/O Kailashrao Gaikwad and Another v. State of Mah. Thr. Pso City Kotwali Akola Tq. and Dist.Akola and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra, Thr. Police Station Officer, Police Station Old City Akola, Dist. Akola Vs Sk. Jabbar Sk. Mahboob and 16 Others

Gulab S/O. Sadu Jadhao (in Jail) Vs the State of Maharashtra Thr. Police Station Officer Police Station Jivati Dist. Chandrapur

Pappu S/O. Ratanlal Karase (in Jail) Vs the State of Maharashta Thr. Police Station Officer Jivati Dist. Chandrapur

Vilas S/O Ganpatrao Dhole and Another Vs State of Mah. Thr. Pso Ps Gitti Khadan Nagpur City Nagpur and Another

Kunal S/O. Pandurang Raikwar and Othr. Vs the State of Maharashtra Thr. P.S.O., P.S. Nerparsopant, and Anr.

Ajay S/O. Ramchandra Vairale and Othr. Vs State of Maharashtra Thr. P.S.O. P.S. Frezarpura, Dist. Amravati