Judgment:
S.P. Kukday, J.
1. Rule. Mr. S.P. Brahme, learned Counsel waives service for respondent. By consent of the parties, Rule made returnable forthwith.
2. This petition under Section 482 of the Code of Criminal Procedure is for quashing the proceedings of Regular Criminal Case No. 492 of 2004.
3. Facts relevant for the purpose of deciding this petition are that, petitioner No. 1 married respondent about 20 to 22 years back at Bhusawal. On 19.1.2004 an agreement was executed on a stamp paper under which the respondent is purported to have given permission to petitioner No. 1 for marrying a second wife. Subsequently the petitioner No. 1 married a second wife on 22.2.2004. After the second marriage there were disputes between petitioner No. 1 and respondent, who were living together for 22 years since their marriage. As a consequence of this dispute, respondent filed complaint with police. As no cognizance was taken she approached the Court and filed Regular Criminal Case No. 492/2004 against the petitioners. On the basis of this complaint, learned 3rd Joint Judicial Magistrate, First Class, Jalgaon issued process against original accused Nos. 1, 3, 4 and 5 in respect of offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. Process was issued against all accused in respect of offence punishable under Sections 323 and 506 read with Section 34 of the Indian Penal Code. The process for offence punishable under Section 420 of the Indian Penal Code was issued only against petitioner No. 1. The petitioners have challenged the entire proceedings.
4. The respondent appeared and filed affidavit-in-reply contending that there is sufficient material on record for issuance of process under Section 204 of the Code of Criminal Procedure. Her verification was also recorded.
5. Heard both sides. During the course of argument, learned Counsel for the petitioners restricted his challenge to the issuance of process in respect of offence punishable under Section 420 of the Indian Penal Code. The allegations in this respect are that respondent was pressurised to execute an agreement for granting permission to petitioner No. 1 for marrying a second wife on condition that he would pay maintenance of Rs. 2,000 per month to the respondent throughout her life. According to the respondent, her consent was obtained by fraud and coercion. Learned Counsel for the petitioners has rightly pointed out that the parties are governed by Mohammedan Law under which petitioner No. 1 can marry four wives. Therefore, it was not necessary to obtain consent from the respondent. On the other hand, learned Counsel for the respondent contends that the respondent was pressurised and deceived for obtaining this consent. The point for consideration is whether any of the ingredients of Section 415 or Section 420 are satisfied. For making out an offence of cheating punishable under Section 415 it has to be averred and proved that there is deception of any person by inducing that person fraudulently or dishonestly, (1) to deliver any property to any person; (2) to consent that any person shall retain any property; or (3) intentionally inducing that person 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.
Section 420 is aggravated form of cheating. For making out an offence punishable under Section 420 following ingredients must be satisfied, namely the deceived person is dishonestly induced, (1) to deliver any property to any person or; (2) to make, alter or destroy; (a) the whole or any part of a valuable security, or (b) anything which is signed or sealed and which is capable of being converted into a valuable security. Bare reading of the complaint shows that there are no allegations which satisfy these ingredients.
6. Learned Counsel for the petitioners has rightly pointed out that Mohammedan Law is applicable to the parties. Therefore, no consent was required. There was no need for obtaining such a consent by fraud or deception. There is no allegation that the respondent was induced to do anything which she could not have done or omitted to do. Considering the averments in the complaint and the statement recorded at the time of verification of complainant it can be seen that there is no justification for issuing process in respect of offence punishable under Section 420 of the Indian Penal Code against petitioner No. 1. This portion of the order dated 16.8.2004 passed by the learned Magistrate cannot be sustained. Thus, order for issuing process in respect of offence punishable under Section 420, Indian Penal Code against the petitioner, therefore, deserves to be quashed and set aside. However the proceeding shall continue in respect Of other offences for which the process is issued by the learned Magistrate in accordance with the provisions of law.
7. The petitioner is, therefore, partly allowed. Rule is made absolute in the above terms.