Quashed

Baiju.R v. State of Kerala

Kerala HC7 Dec 2022Crl.MC/4395/2022

Case brief

AI extract

What is this about?

This criminal miscellaneous petition sought quashing of proceedings alleging rape and cheating. The High Court held elements were absent, consenting to sex based on an unenforceable promise of marriage by a married woman does not attract Section 376 IPC, and money demands do not evidence cheating. Proceedings were quashed.

What did the court decide?

All further proceedings in S.C.No.578/2018 on the file of Fast Track Court, Aluva are quashed and the criminal miscellaneous case is allowed.

Baiju.R Vs State of Kerala — Cheating and Forgery | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

¶4

WEDNESDAY, THE 7^TH DAY OF DECEMBER 2022/16TH AGRAHAYANA, 1944

¶5

CRL.MC NO. 4395 OF 2022

¶6

[AGAINST THE PROCEEDINGS IN SC. NO. 578/2018 OF THE FAST TRACK COURT, ALUVA]

¶7

PETITIONER/ACCUSED:

¶8

BAIJU.R AGED 48 YEARS, RAMANAN, KAKKAPARAMBATHUVELI HOUSE, CHERTHALA, ALAPPUZHA DISTRICT. 688524, PIN - 688524 BY ADV S.SANAL KUMAR

¶9

RESPONDENTS/ STATE & COMPLAINANT:

¶10

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031., PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

¶11

SRI SANGEETHA RAJ-PP

¶12

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶13

Crl.M.C.No.4395 of 2022

¶14

..2..

¶15

O R D E R

¶16

Dated this the 7^th day of December, 2022

¶17

This Crl.M.C. has been filed to quash all further proceedings in S.C.No.578/2018 on the files of Fast Track Court, Aluva (for short, 'the court below').

¶18

The petitioner is the sole accused. The 2^nd respondent is the victim. The offence alleged are punishable under Sections 376 and 420 of the Indian Penal Code. The prosecution case in short is that, the petitioner after giving false promise of marriage sexually assaulted the victim on several occasions at various places and further the petitioner induced the 2^nd respondent to part with a sum of Rs.15 lakhs (Rupees Fifteen Lakhs only) and thereafter cheated her without giving back the said amount.

¶19

I have heard Sri. Sanal Kumar, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. Even though notice has been served to the 2^nd respondent, there is no appearance.

¶20

The learned counsel for the petitioner submitted that, even if the entire allegations in the First Information Statement together with the materials collected during investigation are believed in its entirety, no offence under Sections 376 and 420 of

¶21

Crl.M.C.No.4395 of 2022

¶22

..3..

¶23

IPC has been made out.

¶24

I went through the FI Statement as well as the statement of the witnesses. There is absolutely nothing to attract the basic ingredients of Section 376 and 420 of IPC. A reading of the FIS would show that, the 2^nd respondent was a married woman. However, she was residing separately from her husband. She is also having a son. Thereafter, she got acquainted with the petitioner and fell in love with him. According to the 2^nd respondent, she along with the petitioner voluntarily went to various places, stayed in lodges and had consensual sex. But her case is that, she consented for sex on the promise given by the petitioner that he would marry her.

¶25

It is settled that, if a man retracts his promise to marry a woman, consensual sex they had, would not constitute an offence of rape under Section 376 of IPC unless it is established that the consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge [ See Ranjith v. State of Kerala (2022 (1) KHC 195)]. It is a case where the victim who is a married woman voluntarily had sex with her lover. She knew pretty well that she cannot enter into a lawful marriage with the petitioner, in as much as she is a married woman. Recently, this

¶26

Crl.M.C.No.4395 of 2022

¶27

..4..

¶28

Court in [ XXX v. State of Kerala (2022 KHC 296)] has held that the promise alleged to have been made by an accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arises, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law. Hence, I am of the view that the basic ingredients of Section 376 of IPC are not attracted.

¶29

There is also nothing on record to attract the ingredients of Section 420 of IPC. The 2^nd respondent simply stated that on various occasions the petitioner demanded and collected a total sum of Rs.15 lakhs from her and he did not give it back. The said allegation is hardly sufficient to attract the ingredients of the offence of cheating.

¶30

For the reasons stated above, I am of the view that no purpose will be served in proceeding further with the matter. Hence, all further proceedings in S.C.No.578/2018 on the file of the Fast Track Court, Aluva stands hereby quashed. The Crl.M.C. is allowed.

¶31

Sd/- DR. KAUSER EDAPPAGATH, JUDGE

¶32

APA

¶33

Crl.M.C.No.4395 of 2022

¶34

..5..

¶35

APPENDIX OF CRL.MC 4395/2022

¶36

PETITIONER'S ANNEXURES

¶37

Annexure A1	COPY ASSIS THE 10.2.	OF THE COMP TANT COMMISSIO SUB INSPECTOR 2017	LAINT SUBMITTED BEFORE THE NER OF POLICE, ERNAKULAM AND OF POLICE, THEVARA DATED
Annexure A2	COPY 3060/	OF THE ORDER 2017 OF THIS HO	DATED 12.5.2017 IN BA NO. N'BLE COURT
Annexure A3	COPY	OF THE FINAL	REPORT IN CRIME NO.418/2017
	SUBMI MAGIS	TTED BEFORE TRATE COURT – I	THE JUDICIAL FIRST CLASS I, ERNAKULAM DATED 11.2.2017
Annexure A4	COPY DESAB	OF THE NEWS HIMANI DAILY DA	PAPER REPORT APPEARED IN TED 11.8.2019

Baiju.R v. State of Kerala

Case brief

What is this about?

What did the court decide?

Baiju.R v. State of Kerala

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

Suresh Vs State of Kerala

Illyas Vs the State of Kerala

Sneha C.S, Vs State of Kerala

Shabeer K a Vs State of Kerala

Balan Vs State of Kerala

Shibu Rajan Vs Ritty