IMPORTANT POINT
Where accused committed sexual intercourse with complainant on a promise to marry her but refused to keep his promise, offence under 493 IPC could not be said to have been made out but offence under Section 417 IPC was prima facie made out.

JUDGMENT

R.N. Biswal, J.—Heard.

2. The petitioners challenge the order dated 8.3.2003 passed by the JMFC, Aska in G.R. Case No. 390 of 2002 taking cognizance of the offence punishable under Section 493/417 of IPC against petitioner No.1 and under Section 417/109 of I.P.C. against petitioner Nos. 2 and 3.

3. Learned counsel for the petitioners submits that even if the allegation depicted in the complaint petition which was treated as F.I.R., is believed to be true in its entirety, still then the offence under Section 493 of I.P.C. cannot be made out against petitioner No.1. However, he fairly submits that there is material to proceed with under Section 417 of I.P.C. against him. Learned counsel for the petitioners further submits that the offence under Sections 417/109 of I.P.C. cannot be attracted against petitioner Nos. 2 and 3, even if the entire allegation made against them is accepted in its face value. Learned Additional Government Advocate supports the impugned order.

4. On perusal of the complaint petition it is found that petitioner No.1 is son of the maternal uncle of the complainant (hereinafter referred to as “opposite party No. 2”). So they knew each other from their childhood. It is alleged that during the month of February, 2002 petitioner No.1 promised to marry opposite party No. 2 and made her to believe that she was lawfully married to him and persuaded her to have sexual intercourse with him. In good faith she yielded to him and they had sex in three occasions resulting in her conception. Opposite party No. 2 requested petitioner No.1 to get the marriage solemnized, but on the pretext of earning some money, he left for Gujarat leaving her high and dry. So the matter was placed before the Benayat Oriya Caste Committee to which Caste the petitioners and opposite party No. 2 belong, for the needful. It is alleged that petitioner No. 3 who is the head of the Benayat Oriya Caste Committee influenced the members of the Committee and did not solve the issue. It is further alleged that petitioner No. 2 abated petitioner No.1 not to marry opposite party

No. 2.

5. Section 493 of I.P.C. reads as follows:

“Cohabitation caused by a man deceitfully inducing a belief of lawful marriage—Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine”.

There is nothing to show, in the present case, that petitioner No.1 practiced deception on opposite party No. 2 to induce her to believe that she was lawfully married to him. As found from the complaint petition, when opposite party No. 2 was in a family way, she requested petitioner No.1 time and again to marry her, which clearly shows that she was not deceived by petitioner No.1 to believe that she was his lawfully married wife. So, as rightly submitted by learned counsel for the petitioners, even if the entire allegation made against petitioner No.1 is believed to be true, still then there is no material to proceed against him under Section 493 of I.P.C., as such it deserves to be quashed.

Now, it is to be seen, whether the offence under Section 417 of I.P.C. can prima facie be attracted against the petitioner No.1 Section 417 of I.P.C. reads as follows:

“Punishment for cheating—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with both.”

Section 415 of I.P.C. defines cheating as hereunder:

“Cheating—Whoever, 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 i