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The Bombay High Court pronounced a judgement that mere refusal to marry the offence of cheating be constituted under Section 417 of the Penal Code, 1860 through Justice Anuja Prabhudessai in the case of Kashinath Narayan Gharat v. State of Maharashtra (CRIMINAL APPEAL NO.119 OF 1999 )

FACTS OF THE CASE:

The Additional Sessions Judge held  The appellant was found guilty of offences punishable under Section 417 of the Penal Code of 1860. An immediate appeal was lodged against the aforementioned judgement.

The prosecutor had filed an FIR stating that the accused had a sexual relationship with her with the promise of marriage and then rejected to marry her. The accused was charged with a crime under Sections 376 and 417 of the IPC.

The accused was found guilty of the act under Section 417 IPC merely because he refused to marry the prosecutrix; hence, the question arose as to whether the refusal to marry would constitute the crime of cheating in such circumstances.

JUDGEMENT:

The prosecutrix was known to the accused and they had a sexual connection for around 3 years, according to the High Court. The evidence on file established that the prosecutrix and the accused had a consensual sexual relationship.

In the case of Maheshwar Tigga v. State of Jharkhand, (2020), the Supreme Court ruled that under Section 90 of the IPC, consent provided under misconception is not consent under the law. However, the misconception of fact must be close to the incident and cannot be extended across a four-year period.

According to the High Court, the prosecutrix’s evidence did not show that she had a sexual relationship with the accused based on a false promise of marriage or that her consent was based on fraudulent misrepresentation of marriage.

Further, the Bench stated that there was insufficient evidence to indicate that the prosecutrix consented to a physical relationship based on a misconception of fact, as required by Section 90 IPC, and therefore her refusal to marry would not constitute an offence under Section 417 IPC. As a result of the foregoing reasoning, the challenged decision could not be upheld, and the appeal was permitted.

According to the High Court, the prosecutrix’s evidence did not show that she had a sexual relationship with the accused based on a false promise of marriage or that her consent was based on fraudulent misrepresentation of marriage.

Further, the Bench stated that there was insufficient evidence to indicate that the prosecutrix consented to a physical relationship based on a mistake of fact, as required by Section 90 IPC, and therefore her refusal to marry would not constitute an offence under Section 417 IPC. As a result of the foregoing reasoning, the challenged decision could not be upheld, and the appeal was permitted.

JUDGEMENT REVIEWED BY REETI SHETTY

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