Actions constituting cheating under Section 415 IPC must meet the specific elements outlined in the provision, and the burden of proof lies with the prosecution to establish the same.

P.G. Agarwal, J.

1. Heard Mr. C.R. De, learned Counsel for the Petitioner. None appeared for the Respondent.

2. This revision is directed against the order of acquittal recorded by the learned Sessions Judge, Karimganj in Criminal Appeal No. 15(3)/97, whereby the order of conviction recorded by the learned S.D.J.M., Karimganj in C.R. Case No. 710/95 was set aside.

3. The Petitioner, Md. Quadir Ahmed, filed a written complaint stating, inter alia, that he had married the accused Saheeda Khanam on 4.7.92 and thereafter lived as husband wife till 15.5.94. The Petitioner has also arrayed the father and brother of the wife as accused No. 2 and 3. On 15.9.94, the wife went to her parents place and also carried with herself a gold necklace and she assured to return back within 15 days. However, as the accused No. 1 did not return and the Petitioner came to know that she has joined in a Nursing Training on false pretext of being unmarried, the complaint was filed. Learned S.D.J.M. took cognizance of the offence under Section 182/417/34 IPC. During trial, the case against accused No. 2 was filed. On Conclusion of the trial, the learned trial Court acquitted the father of the accused Saheeda Khanam from the charge under Section 417 IPC and convicted and sentenced her to pay fine of Rs. 500/-, in default to 15 days imprisonment. Feeling aggrieved, the Respondent convict filed Criminal appeal No. 15(3)/97 before the learned Sessions Judge, Karimganj who vide the impugned order allowed the appeal and set aside the order of conviction and sentence. Hence, the present revision by the Petitioner complainant.

4. The allegation of the Petitioner for alleged cheating is on two different counts. The first allegation is that the wife had left the company of the husband with a promise to return after 15 days but as she has refused or failed to return back within the said period, the husband has suffered both physically and mentally and, as such, it amounts to cheating as defined in Section 415 IPC and more so, when the marriage was still subsisting. Section 415 IPC reads as follows:

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 is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.

5. The Respondent accused in her statement under Section 313 Code of Criminal Procedure has denied the marriage and stated that she is unmarried and that she has not executed any bond. The complainant although claimed that the marriage was solemnized before the Marriage Registration Officer (Kazi) no documentary evidence was produced in support of the same. As a matter of fact, except the oral testimony of two witnesses, there is no other documentary evidence. Moreover, even if we accept for arguments sake that the Petitioner and the accused person are husband and wife, we are unable to agree with the submission that in cases where the wife leaves the company of the husband or do not return back to the company of her husband, it amounts to cheating as defined under Section 415 IPC. Shri De has submitted that the refusal of the wife to return back or the absence of the wife amounts to an act of omission which has caused harm to the person's body, mind or reputation and according to Mr. De, this is a case of causing damage to the mental health of the husband. The offence of cheating is included in the Chapter of Offences Against property in the Penal Code and we have no hesitation whatsoever to hold that in cases where the wife leaves the company of her husband or refuses to return back, it does not constituted an offence of cheating as defined under Section 415 IPC. So far the taking away of her orn