Madhya Pradesh High Court
Dr. Archana Tripathi vs Dr. Apoorva Tripathi on 12 February, 2018
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CRR-2035-2014
THE HIGH COURT OF MADHYA PRADESH
CRR-2035-2014
(DR. ARCHANA TRIPATHI Vs DR. APOORVA TRIPATHI)
Jabalpur, Dated : 12-02-2018
Shri R.K. Jain, counsel for the applicant.
Shri Sankalp Kochar, counsel for the respondent No.1.
Shri S.D. Khan, Public Prosecutor for respondent no.2-State.
1. This revision has been filed under Section 397 read with 401 of CrPC against an order dated 15.7.2014 passed by Tenth Additional Sessions Judge, Bhopal in Criminal Revision No.202/14, whereby the order dated 12.3.2014 passed by Judicial Magistrate First Class, Bhopal in R.T. No.2061/2014 has been set aside.
2. The facts necessary for the disposal of this revision, in short, are that the applicant had filed a criminal complaint against the respondent for the offence punishable under Sections 379, 392, 403, 406, 420, 426 and 506 of IPC on the ground that the applicant and the respondent were married to each other. The applicant- complainant was running a Kolar Maternity Care Hospital along with the respondent-accused. They have two children out of the wedlock and the respondent used to beat her in front of the children and in a clandestine manner, he obtained a decree of divorce under Section 13-B of the Hindu Marriage Act while the parties were residing together. The respondent had persuaded the ..2..
CRR-2035-2014 applicant that the proceedings under Section 13-B of the Hindu Marriage Act have not been finalized and therefore, they continued to reside as husband-wife whereas the order granting decree of divorce was already passed and the respondent was having a copy thereof. In the month of January, 2011, the respondent had called a Vitech micro-culture machine from applicant's sister who is residing in USA. Her sister Dr. Alka Shukla sent the machine after purchasing it from her own money as she was not aware of the divorce between the applicant and respondent. In the month of September, 2012, after serious dispute took place between the parties, she was informed by the respondent that the decree of divorce has already been passed in the month of November, 2010 and, therefore, now she would not allow her to live with him. Therefore, the applicant went to her maternal home at Nasik. Later on, when the applicant demanded the machine back from the respondent which was sent by her sister, then the same was not returned. It was mentioned in the complaint that during the absence of the applicant, the respondent had stolen the machine which was installed in the hospital being run by the applicant. The applicant had made a complaint to the police authority and since no action has been taken, therefore, she filed a complaint.
3. The applicant examined herself under Section 200 of CrPC in which she had stated that in the month of January, 2011, the respondent had called a Vitech micro-culture machine from USA ..3..
CRR-2035-2014 through her sister. It was further stated that the payment of price of the machine was made by her sister because she was not aware of the decree of divorce between the parties. In the month of September, 2012, after serious disputes cropped up between the parties, he had disclosed that a decree of divorce has already been passed in the month of November, 2010 and thereafter, the applicant went to her maternal home at Nasik and after coming back therefrom, when she demanded her machine back, the respondent refused to return the same on the ground that in the decree of divorce, it is specifically mentioned that nothing is outstanding against any of the parties. The applicant also examined one Prahlad Singh under Section 202 of CrPC who has stated that he is working as a servant in the house of the applicant and hospital which, in the name and styled as "Kolar Maternity Care", is being run by the applicant. He was informed by the applicant that her sister had sent the culture machine and that machine was installed in the hospital. In the month of January- February, 2013, when he went to Mata Mandir in connection with some work, then at that time, the culture machine was in the Kolar Maternity Care Hospital and when he came back, the said machine was not found therein.
4. After considering the allegations made in the complaint as well as the statements of the witnesses, the Magistrate vide order dated 12.3.2014 took cognizance of the offence under Section 379 of IPC.
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CRR-2035-2014
5. Challenging the order dated 12.3.2014 passed by the JMFC, Bhopal the respondent filed a criminal revision which was registered as Criminal Revision No.202/2014. After hearing both the parties, the Revisional Court has allowed the revision and has set aside the order dated 12.3.2014 passed by JMFC, Bhopal in R.T. No.2061/2014 and has discharged the respondent-accused on the ground that the complaint as well as the statements of the witnesses do not prima facie disclose case warranting the prosecution of the respondent under Section 379 of IPC.
6. Challenging the order passed by the Revisional Court, it is submitted by the counsel for the applicant that the applicant had established beyond reasonable doubt that she was the owner of the machine and the applicant had stolen the machine while she had gone to the maternal home at Nasik and therefore, the Magistrate had not committed any mistake in taking cognizance of the complaint for the offence under Section 379 of IPC.
7. Per contra, it is submitted by the counsel for the respondent that it is the case of the complainant herself that it was the respondent who had called the machine from USA through her sister. The applicant has nowhere stated that the machine was ever gifted by her sister to the applicant. If the applicant was the owner of the culture machine, then it cannot be said that he has committed the theft of the same. Furthermore, the Revisional Court has also considered the report sent by the police which was summoned by the Magistrate prior to taking cognizance of the ..5..
CRR-2035-2014 offence in which it was specifically opined by the police that no offence is made out.
8. Heard the counsel for the parties.
9. From the perusal of the record, it is clear that neither in the complaint nor in the statements recorded under Section 200 and 202 of CrPC, the applicant has stated that she is the owner of the machine. On the contrary, in her statement recorded under Section 200 of CrPC, she has specifically stated that it was the respondent who had called the machine from USA through her sister. The applicant has not stated in her statement that the respondent has committed the theft of the machine from the hospital which is being run by the applicant. To establish the allegation of theft, the applicant has examined one Prahlad Singh who has stated that in the month of January-February, 2013, when he went to Mata Mandir in connection with some work, then he had seen that the machine was installed in the Kolar Maternity Care Hospital and when he came back, he found that the machine was not there. Even this witness has not stated that who had taken away the machine. Surprisingly, this witness has stated that in the month of January-February, 2013, he had gone to Mata Mandir in connection with some work. Even the date on which the machine was taken away or removed from Kolar Maternity Care Hospital has not been clarified by this witness. Even the complainant has not stated in her complaint that on what date the machine was taken away from her hospital. The date of removal of the machine ..6..
CRR-2035-2014 assumes importance in order to prima facie establish the allegation of theft. It is the case of the applicant that the machine was installed in her hospital which was removed during her absence. No evidence has been led by the applicant to the effect that on what date and by whom the machine was removed. It appears that the applicant and the respondent were husband and wife and the divorce has taken place between both of them and therefore, possibility of false allegation is also not ruled out.
10. Considering the totality of the facts and circumstances of the case, this Court is of the view that the order dated 15.7.2014 passed by Tenth Additional Session Judge, Bhopal in Criminal Revision No.202/2014 is passed on sound reasoning and the counsel for the applicant could not point out any perversity in the said order.
11. Accordingly, the order dated 15.7.2014 passed by Tenth Additional Session Judge, Bhopal in Criminal Revision No.202/2014 is hereby affirmed.
12. This revision fails and is dismissed in limine.
(G.S. Ahluwalia) JUDGE vinod Digitally signed by VINOD VISHWAKARMA Date: 2018.02.14 19:05:23 +05'30'