JUDGMENT - B.B. VAGYANI, J.:---Heard learned Advocate Mr. B.R. Varma for the petitioner and Shri A.M. Kanade, learned Public Prosecutor for the State. Rule made returnable forthwith. Shri A.M. Kanade, learned Public Prosecutor waives notice for the State. With the consent of parties, matter is taken for final hearing.

The short point that arises for consideration is whether the offence of cheating as defined under section 415 of I.P.C. embraces cases in which no transfer of property is occasioned by the deception.

In brief facts giving rise to this criminal application are as under:

1.The prosecutrix is a divorced woman. The prosecutrix was given in marriage at Badoda, tq. Chopda, Dist., Jalgoan. However, prosecutrix and her husband could not pull on well. The said marriage was completely broken and ended in divorce.

2.After divorce, the prosecutrix started residing with her mother at village Pargoan. It is alleged by the prosecution that the accused, who is petitioner in the present application, came in contact with the prosecutrix. The casual acquaintance ultimately culminated into a love affair. It is alleged by the prosecutrix that petitioner-accused used to tell her that he would marry her. It is further case of the prosecutrix that the petitioner-accused, after giving promise of marriage, sexually exploited the prosecutrix on number of occasions. According to the prosecutrix, every time before the sexual intercourse, the petitioner-accused allured the prosecutrix with the promise of marriage. The prosecutrix became prey to the petitioner-accused on account of promise of marriage and allowed him to have sex with her. The nature brought this indecent affair on the surface. The prosecutrix became pregnant. The prosecutrix asked the petitioner-accused to fulfil his promise of marriage, but the petitioner-accused flately refused to marry prosecutrix.

3.The prosecutrix sought indulgence of P.S.I., attached to the Adavat Police Station by submitting a formal application dt. 21st April 1992, wherein, the love affair has been disclosed. It appears that the indulgence didn't bear any fruits. The request of marriage put forth by the prosecutrix has been turned down by the petitioner-accused. Thereafter, the prosecutrix lodged a criminal complaint against the petitioner-accused on 30th April 1992 at Police Station, Adavat. On the basis of First Information Report, lodged by the prosecutrix, Crime No. 25/92 has been registered against the petitioner-accused under section 376 of I.P.C. The Investigating Officer carried out necessary investigation. After completion of the investigation, the charge sheet came to be filed. The learned Magistrate committed the case to the Sessions Court as the offence punishable under section 376 of I.P.C. is exclusively triable by the Court of Sessions.

4.On perusal of the relevant police papers, the learned Additional D.J. initially framed the charge under section 376 of I.P.C. The trial proceeded with. The prosecution examined few witnesses, including the prosecutrix. During the pendency of the trial, the learned Additional Public Prosecutor, submitted an application under section 216 of the Code of Criminal Procedure and moved the Additional Sessions Judge for additional charge under section 417 of the I.P.C. The learned Additional Sessions Judge called the say of the petitioner-accused on the application filed by the State for additional charge. The petitioner-accused opposed the application for additional charge on the ground that the offences under section 415 and 417 fall under the Chapter XVII which deals with offences against property. According to the petitioner-accused, no offence has taken place with regard to the property and therefore, application for additional charge under section 417 of I.P.C. is liable to be rejected.

5.The learned Additional Sessions Judge, Amalner, Dist. Jalgaon, after hearing both the sides and taking into consideration the legal position allowed the application fi

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