Refusal to marry after a consensual relationship does not constitute cheating under Section 417 IPC without evidence of fraudulent intent at the time of the promise.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

This appeal under Section 374 of Cr.P.C is directed against the judgment and order dated 27.09.2012 passed by the learned Additional District and Sessions Judge, Mandya in Sessions Case No.66/2010.

2. By the impugned judgment, learned Judge held the Appellant (hereinafter referred to as ‘accused’) guilty of offences punishable under Section 417 of the Indian Penal Code (hereinafter referred to as ‘IPC’). He has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- in default to undergo rigorous imprisonment for a period of three months.

3. The case of the prosecution in brief is as under:-

The prosecutrix –P.W.2 had lodged the FIR alleging that the accused had sexual relationship with her with promise of marriage. He subsequently declined to marry her. Based on the FIR at Ex.P1 lodged by the prosecutrix the crime came to be registered against the accused for offences punishable under Sections 376 and 417 of the IPC.

4. The Police after investigation have filed charge sheet against the accused for offences punishable under Sections 376 and 417 of IPC . The accused pleaded not guilty to the charge and claimed to be tried. The prosecution in support of its case examined 8 witnesses and got marked documents as Ex.P1 to 7. The defence of the accused was of total denial. The learned Judge upon appreciating and analysing the evidence on recorded acquitted the accused of offence under Section 376 of the IPC and held him guilty of the offence under Section 417 of the IPC . Being aggrieved by the conviction and sentence, the accused has preferred this appeal.

5. Heard learned counsel for the appellant and learned High Court Government Pleader for the respondent-State.

6. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties.

7. The evidence of P.W.2- Prosecutrix reveals that the accused was known to her. She had sexual relationship with the accused for about one and half years.

Evidence of P.W.1- relative of the accused will also indicate that accused and victim were moving on motor cycle, on enquiry with victim she revealed that both are in love and accused has promised to marry her. The evidence on record thus indicates that sexual relationship between the prosecutrix and the accused was consensual. The accused has been held guilty of offence under Section 417 of the IPC solely for the reason that he refused to marry the prosecutrix. The question is whether in such circumstances refusal to marry constitutes an offence of cheating.

8. While considering a similar issue, in Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Anr., 2021 SCC Online SC 181, the Hon’ble Supreme Court has observed as under:

“9. In Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608, while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:-

“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…”

10. Further, the Court has observed:

“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