- Marriage in November 1986
- Two children aged approx 27 years and 20 years out of wedlock
- Husband a doctorate and scientist. Couple have lived abraod and in India
- After approx 25 years couple split and wife has filed 498A, DV, maintenance cocktail on husband
- In addition to getting Rs 15000 p,m. and 170000 from husband, wife files 498a, 406, 323, 504 case in 2013 !! yes 27 years later
- The learned Magistrate, passed summoning order in a mechanical manner !
- Husband runs to HC for quash (after approaching apex court !!).
- HC orders “…application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed…”
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 22
Case :- U/S 482/378/407 No. – 5246 of 2013
Applicant :- Dr. Bijoy Kundu
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- Rohit Tripathi,Chandra Bhushan Pandey
Counsel for Opposite Party :- Govt. Advocate,Saurabh Mishra
Hon’ble Mahendra Dayal,J.
This application under Section 482 Cr.P.C., has been filed for quashing of the summoning order dated 16.07.2013 passed in Criminal Case No.45/2013, under Sections 498-A, 323, 504, 506 and 406 IPC, by the Court of Judicial Magistrate, Court No.35, Lucknow, whereby the applicant has been summoned to face trial. A prayer has also been made for quashing of the entire proceedings of the aforesaid criminal case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
The brief facts are that the applicant and the opposite party No.2 are husband and wife. The marriage between them was solemnized in the month of November, 1986. The applicant is working on the post of Chief Scientist in C.D.R.I., Lucknow. Two sons were born out of the wedlock. The first son is a Computer Engineer and is aged about 27 years, while the second son is aged about 20 years. It was in the year 1989-1991 that the applicant visited United States and stayed there for a considerable period. During his stay at United States, he pursued the opposite party No.2 to take admission in the M.B.A. Course. He also took her to several countries. However, despite all efforts from the side of the applicant, the opposite party No.2 neglected the applicant and some times abused him also by calling him illegitimate child of his parents. The applicant was ultimately forced to move out from his own house in the month of March, 2012 on account of cruelty from the side of the opposite party No.2 and since then both of them have been living separately. The opposite party No.2 also filed a suit for divorce in the year 2012 on the ground of cruelty and desertion. She also filed a case under the Domestic Violence Act and also claimed maintenance under Section 125 Cr.P.C. The Court fixed monthly maintenance of Rs.15,000/- as an interim measure and the applicant paid a sum of Rs.1,70,000/- to the opposite party No.2 towards maintenance allowance. In order to further harass the applicant, the opposite party No.2 filed an application under Section 156(3) Cr.P.C., which was treated as complaint case. The learned Magistrate, after following the procedure of the complaint case, passed the impugned summoning order in a mechanical manner. There was absolutely no material to attract the offence of Section 406 IPC. There is also no material on record to attract the offence of Sections 498-A, 504 or 506 IPC. The impugned summoning order, passed by the learned Magistrate, therefore, suffers from manifest error of law and is liable to be set aside.
Learned counsel for the opposite party No.2 has filed counter affidavit and has stated therein that the entire facts narrated in the complaint are true and on the basis of the allegations, the charges under Sections 498-A, 323, 504, 506 and 406 IPC are fully made out. The applicant after having acquired control over the movable or immovable properties belonging to the opposite party No.2, has misappropriated the property and has left her to face destitution. The opposite party No.2 has no source of income. It has further been averred that the opposite party No.2 has half share in a plot at Sector-H, Aliganj, Lucknow, which is measuring 2200 sq. ft., but in order to misappropriate the share of the opposite party No.2, the applicant sold the entire plot without the knowledge and consent of the opposite party No.2. Several other allegations have been made in the counter affidavit to show that the applicant had committed the offence of misappropriation of property. The submission on behalf of the opposite party No.2 is that on the basis of the allegations made in the complaint and the statement, the learned Magistrate has rightly passed the summoning order and there is no sufficient ground for quashing of the summoning order.
A perusal of the record reveals that while entertaining this application under Section 482 Cr.P.C., this Court vide order dated 24.10.2013 directed that no coercive measure shall be taken against the applicant. Since the aforesaid order could not be extended from some reason, the applicant moved an application on 18.09.2014 making request that the interim order granted on 24.10.2013 be extended. A Coordinate Bench of this Court while passing order on this application, provided that the applicant may apply for bail before the trial court within three weeks and the trial court shall decide his bail application on the same day considering that the applicant is a public servant. This order was passed considering the fact that merely by directing that no coercive measure shall be taken against the applicant, would not amount to stay of the proceedings.
Feeling aggrieved by this order, the applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court on 10.10.2014 passed an order that the earlier order passed by this Court on 24.10.2013 shall stand restored. The special leave petition filed by the applicant was disposed of by Hon’ble the Apex Court on 11.01.2016 requesting this Court to dispose of the application under Section 482 Cr.P.C., within a period of six weeks, from the date of communication of the order. The said order of Hon’ble the Apex Court was placed on record on this Court on 01.02.2016.
Learned counsel for the applicant has relied upon several decisions of Hon’ble the Apex Court to show that no offence under Section 406 IPC or Section 498-A IPC is made out against the applicant. One of such case law relied upon by the applicant is reported in (2010) 68 ACC Page 246 – Bhaskar Lal Sharma and another vs. Monica. In this case, Hon’ble the Apex Court has held that the essential ingredient to attract the offence of Section 498-A IPC is that the complainant must make allegations of harassment to meet unlawful demand of dowry or any unlawful conduct on the part of the accused which is likely to drive woman to commit suicide or to cause grave injury or danger to life limb or health. The only allegation that the accused kicked the complainant with her leg and told her that her mother was a liar, does not make out an offence under Section 498-A IPC. For the offence of Section 406 IPC, Hon’ble the Apex Court has held that the essential ingredients for establishing an offence, are entrusting any person with property or with any dominion over property and the person entrusted dishonestly misappropriating on converting to his own use that property or willfully suffering any other persons so to do. Hon’ble the Apex Court has held that in the absence of essential ingredients, no offence under Sections 498-A and 406 IPC would be made out. Hon’ble the Apex Court on the basis of the aforesaid observations passed an order quashing the summoning order.
For invoking of the power under Section 482 Cr.P.C., to quash the summoning order or the proceedings of the complaint case, the applicant has placed reliance on a decision of the Hon’ble Apex Court reported in (2006) 6 SCC Page 736 – Indian Oil Corporation vs. NEPC India Ltd. & Ors. In this case, Hon’ble the Apex Court has held that if the allegations in the complaint, taken on their face value, disclose a criminal offence, the complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available. However, if it is found that frivolous criminal complaint has been filed knowing well that remedy lies only in civil law, the person who filed such complaint should be made accountable, in accordance with law at the end of such proceedings.
Another case law relied upon by the applicant is reported in (2013) 3 SCC Page 330 – Rajiv Thapar & Ors. vs. Madan Lal Kapoor. In this case, Hon’ble the Apex Court has held that the discretion vested in the High Court under Section 482 Cr.P.C., can be exercised to prevent the abuse of process of law and to secure the ends of justice. The High Court can exercise its jurisdiction himself and make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the complainant against the accused. To invoke the inherent jurisdiction, the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his defence is based on sound and reasonable facts.
In the background of the aforesaid legal principles of law, this Court after examining the contents of the complaint, finds that the marriage between the applicant and the opposite party No.2 took place in the year 1986 and after the birth of two sons in the year 1987 and 1993 respectively, the differences arose between them. The opposite party No.2 started making serious allegations against her husband and simultaneously filed several cases, one for divorce, one under Domestic Violence Act and one under Section 125 Cr.P.C. The fourth case is the present one, in which, the impugned summoning order has been passed. After such a long gap, making demand of dowry and harassment for demand of dowry, is not only highly improbable, but it is also not established from the allegations. It is not disputed between the parties that after differences between them, both of them started living separately. The applicant took a rented flat in Metro City, Lucknow. The allegations with regard to extending threats do not at all attract the offence of Section 498-A IPC. The allegations made by the opposite party No.2 in her complaint are inadequate to show that there was any demand of dowry on the part of the applicant. The object of enactment of Section 498-A IPC is to prevent the custom for demanding dowry. It has also been experienced by the courts that the provisions of Section 498-A IPC is misused in order to take revenge or exert pressure on the other side for some ulterior motive. The jurisdiction of the High Court to quash the summoning order in such cases should be exercised where it appears that the provision is being misused. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
So far as the offence of Section 406 IPC is concerned, the only allegation against the applicant is that the opposite party No.2 was having half share in a plot of land which the applicant sold without her knowledge and consent. This averment made by the opposite party No.2 does not make out the offence of Section 406 IPC because the essential ingredients of entrustment is missing, which is necessary for attracting the offence of criminal misappropriation. Moreover, the opposite party No.2 has an alternative remedy before the civil court in case her right in the immovable property has been affected.
So far as the other offences under Section 323, 504, 506 IPC are concerned, there is absolutely no evidence to attract those offences also. A perusal of the impugned order reveals that the learned Magistrate in a technical manner and without considering as to whether any prima-facie offence is made out against the applicant, passed the impugned summoning order, which is erroneous for the reason that the learned Magistrate has not recorded his satisfaction that the aforesaid offences are made out against the applicant. It is unfortunate on the part of the parties that even after twenty years of marriage and having two adult sons, they are litigating in such a manner making serious allegations against each other. Both the parties belong to a respected family and the applicant is holding a very high position and is facing several cases.
After having considered the contents of the complaint and the law on the subject as discussed above and the impugned summoning order, I am of the view that none of the offences, as indicated in the impugned summoning order, are made out against the applicant and as such the impugned order is manifestly erroneous and is liable to be set aside.
In the result, the application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed.
Order Date :- 5th May, 2016
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CASE FROM Allahabad HC site with necessary Emphasis, Re formatting