The Calcutta High Court has ruled that, in order to invoke the provision of Section 415 of IPC, the prosecution is under obligation to prove that the accused person induced the victim to indulge in any such sexual relationship with him.

While mentioning that element of uncertainty in the present case was there since the inception of such a relationship between the parties and the victim consciously accepted such risk of uncertainty, the Bench of Justice Siddhartha Roy Chowdhury observed that "the promise of marriage, after divorce, by itself does not amount to cheating".

Advocate Bibaswan Bhattacharyya appeared for the Appellant and Advocate Joydeep Das appeared for the Respondent.

In a brief background, the victim lady filed a police complaint stating that she went for an interview for a job in ITC Sonar, Kolkata. During the interview, she met the Appellant/accused (Gaurav Bir Basnet, the Front Office Manager), who after taking the informant into confidence, asked her to stay at an accommodation provided by the Company along with the Appellant. The Information stayed together with the Appellant even after having knowledge of the Appellant’s previous marriage, on the assurance that the Appellant will take divorce from his wife. However, later, the Appellant started pestering the informant to quit the job and made excuses regarding a delay in filing the suit for divorce. After the informant quit her job, the Appellant refused to take divorce on grounds of the prestige of the family and his priorities towards his daughter born from wedlock of his former wife.

Accordingly, as per the statement of the informant, a chargesheet was filed against the Appellant under Section 417/376 of the IPC. The Trial Court thereafter convicted the Appellant for committing offence within the meaning of Section 417 of IPC and sentenced him to pay a fine of Rs. Ten lacs as compensation with a default clause of rigorous imprisonment for one year.

After considering the submissions, the High Court noted that one of the essential ingredients of cheating is deception, which must precede and thereby induce the other person and thereby lead to an error by causing a person to believe what is false or disbelieve what is true.

Section 415 of I.P.C. has two parts, in the first part inducement must be dishonest or fraudulent and in the second part it should be intentional. In both the cases, deception is common element. In this case, prosecution is to prove that promise to marry made by the accused person, for inducing the victim to have sexual relation with him was false, since the very inception when he made such promise”, found the Court.

The Bench found that the victim was very much aware that the accused person was a married man living apart from his wife and had a daughter, and even then she agreed to live together with the Appellant on the pretext of their marriage after Appellant would take divorce from his wife.

Thus, the promise of marriage, so made by the accused person, was not a promise simplicitor - it was contingent on the dissolution of his marriage, which was subsisting, observed the Bench.

Therefore, opining that the prosecution has not been able to prove that since the inception the accused person had this evil design to exploit the victim both financially and sexually, the High Court held the accused not guilty to the charge under Section 417 of IPC.

Cause Title: Gaurav Bir Basnet v. State of West Bengal and Anr.

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