To establish cheating under IPC, there must be initial deceptive intent shown, and mere failure to perform a promise is not sufficient.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. D. Talukdar, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the respondent/opposite party No. 1. Also heard Mr. N. Deka, learned counsel for the respondent/opposite party.

2. The present criminal petition under Section 482 read with Sections 401 /397 of the Code of Criminal Procedure, 1973 has been filed for quashing an order dated 07.09.2017 passed by the learned Chief Judicial Magistrate, Jorhat in C.R.Case No. 137/2016 whereby cognizance of the offences under Sections 417 /420/506 IPC was taken against the petitioner. The petitioner further challenges the entire proceeding of C.R.Case No. 137/2016 and prays for quashment of the same. It is important to note at the outset that though the complaint was lodged by respondent No.2 against the petitioner and her mother, however, the learned Magistrate did not take cognizance against the mother.

3. Before dealing with the arguments advanced by the learned counsels for the parties, let this Court first record the contents of the complaint and the statements recorded by the learned Magistrate in the exercise of its power under Sections 200 /202 CrPC.

4. As per the complaint, the complainant and the respondent No.2, have known each other since the year 2003, when both of them were studying in college. Their close relationship developed into a love relationship.The accused No. 1 therein/present petitioner proposed to the complainant and the complainant gave her consent to it happily. When the accused desired to go to New Delhi for her higher studies in the year 2004, the complainant did not object to her, since the accused/petitioner asserted that the distance between them would make the bonding of love stronger and thus, she built trust in the mind of the complainant that their love would grow more. According to the complainant, some difference was created in their love relationship as the accused/petitioner had an extra love affair with one Dipankar Das and this is the man who helped the accused/petitioner arrange her accommodation during her higher studies and subsequently, the complainant came to know about such love affair. Such a love affair was discussed by the accused/petitioner with the complainant in the year, 2007 and she promised him that she would not repeat such a mistake again in her life.

5. According to the complainant, after getting pressure from the accused/petitioner, he went with the accused to several places in India, i.e., Mumbai, Himachal, Kolkata, Nainital and Jaipur and he had spent lots of money as per her wishes.

6. It is alleged that as the accused/petitioner proposed for marriage, she said that these trips to the above-noted places were their pre-marriage honeymoon trips. It is further alleged that in the year, 2008, the accused/petitioner informed the complainant that she was having some financial problems, she persuaded him to hand over the ATM card and the accused/petitioner used the ATM card of the complainant till 28.04.2016.

7. It is also alleged that at different points of time, the complainant deposited money in his account which was withdrawn immediately in New Delhi by the accused/ petitioner. According to the complainant, in the year, 2015 both of them verbally agreed to their marriage and with lots of trust and expectation, the complainant under the influence of the accused/ petitioner paid her an amount of Rs. 3,00,000/- in cash for purchasing clothes, jewellery, cosmetic and all other pre-marriage articles required for the bride. Thereafter, on the occasion of the