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2005 Supreme(Cal) 83
High Court Of Calcutta
P. N. SINHA
SHIBNATH MUKHERJEE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 1203 Of 2003
Decided On : 02/04/2005
AMIT BHATTACHARJI, KIRAN SHAH, MALA SEN, S.S.ROY, SILADITYA BANERJEE
Concealment of the bride's mental incapacity did not amount to cheating as the complainant had the opportunity to see the bride and make inquiries about her condition before the marriage.
Headnote:
CRIMINAL LAW - CHEATING - MARRIAGE NEGOTIATION - ELEMENTS OF CHEATING UNDER SECTIONS 419 AND 420 OF IPC NOT ATTRACTED - PETITIONER NO. 2 WAS NOT ILLITERATE BUT READ UPTO CLASS-IX - CONCEALMENT OF MENTAL INCAPACITY OF BRIDE NOT AMOUNTING TO CHEATING - COMPLAINT UNDER SECTION 417 OF IPC BARRED BY LIMITATION - REVISIONAL APPLICATION ALLOWED - CRIMINAL PROCEEDING QUASHED.
Fact of the Case:
A complaint was filed alleging cheating in marriage negotiation as the bride was suffering from a mental disorder that was not disclosed by her father. The complainant alleged that the accused had cheated them by inducing them to give their son in marriage to the bride by concealing her mental incapacity.
Finding of the Court:
The court found that there was no element of cheating under Sections 419 and 420 of the IPC as the bride was not illiterate but had read up to Class-IX. The court also held that the concealment of the bride's mental incapacity did not amount to cheating as the complainant had the opportunity to see the bride and make inquiries about her condition before the marriage.
Issues: 1. Whether the accused had cheated the complainant by concealing the bride's mental incapacity. 2. Whether the complaint was barred by limitation.
Ratio Decidendi: 1. The elements of cheating under Sections 419 and 420 of the IPC were not attracted as the bride was not illiterate and the complainant had the opportunity to see her and make inquiries about her condition before the marriage. 2. The complaint under Section 417 of the IPC was barred by limitation as it was filed more than one year after the complainant became aware of the bride's mental disorder.
Final Decision: The revisional application was allowed and the criminal proceeding pending before the learned CJM was quashed.
( 1 ) THIS revisional application under Section 482 of Cr. P. C. has been preferred by the petitioners for quashing complaint case No. C-661 of 2002 under Sections 419 and 420 of the Indian Penal Code (in short I. P. C.) now pending in the Court of the learned Chief Judicial Magistrate (in short CJM), barasat and the order dated 16. 9. 02 passed by the learned CJM issuing process against the petitioners and another accused.
( 2 ) THE aforesaid complaint case was started on the basis of complaint lodged by O. P. No. 2 as complainant in the Court of the learned CJM against these petitioners and another accused. It was the allegation of complainant that on the basis of an advertisement in 'bartaman' Bengali Daily newspaper dated 21. 2. 99 a marriage negotiation between Pranabesh Bagchi, son of complainant and Petitioner No. 2 Mohua Bagchi nee Mukherjee was made and in the newspaper the advertisement was published as 'quick marriage, east Bengal Mukherjee, 20/5'i" Class X standard, really beautiful, expert in household works, father Central Government employee, no objection in business'. During negotiation the petitioner No. 1, father of the bride told that his daughter is Xth standard pass. The complainant on her good faith relying upon representation of accused Petitioner No. 1 and other relatives of the bride without making any enquiry settled the marriage of her son with accused Petitioner No. 2 under Special Marriage Act and the marriage was solemnised on 2. 12. 99. On the night of 'fulsajya' complainant's son discovered that he has been deceived by the father of the bride who has suppressed about old mental ailment of his daughter which is incurable. After the marriage, it was noticed that accused Petitioner No. 2 used to leave her wearing apparels in front of other persons without caring for privacy and she uttered irrelevant talks. During her stay in the matrimonial home the complainant's son tried to have co-habitation with his wife, the accused no. 2, but the attempt failed as right hand of accused No. 2 started trembling abnormally. Accused No. 2 disclosed to the son of complainant that it was due to the result of some kind of disease and doctor advised her that, if she takes regular medicine throughout her life, the disease would remain under control but would not be cured. Thereafter, the complainant made appointment with Dr. Braja Ghosh, a Neurologist for treatment of accused no. 2 and Dr. Ghosh referred the case to a reputed neorophysicist Dr. Narayan Chakraborty. Dr. Chakraborty after examining accused No. 2 declared that she was suffering from mental ailment since her birth. Subsequently, accused No. 2 filed an application under Section 36 of the special Marriage Act in the Court of the learned Additional District Judge, 6th Court, Alipore. In the matrimonial suit she stated that she read upto class-IX standard and she was not Class-X standard pass. The complainant accordingly lodged the complaint against the accused petitioners and another for the offence of cheating. It appears that the learned CJM by order dated 16. 9. 02 issued process under Sections 419 and 420 of I. P. C. against the petitioners and another. Thereafter, the petitioners have moved this Court for quashing the proceeding and also for quashing the impugned order passed by the learned Magistrate issuing process against them.
( 3 ) MR. Joymalya Bagchi, learned Advocate for the petitioners contended that a plain reading of the petition of complaint without adding or subtracting anything to it would clearly indicate that there is no element of offence under Sections 419 and 420 of I. P. C. Section 30 of the I. P. C. describes what is valuable security. The complaint discloses that there was no inducement and there was no delivery of property and there was no wrongful loss to the complainant and wrongful gain to the accused persons. There are several inconsistencies in different paragraphs of the complaint. The Petitioner No. 2, the dau
