Delhi District Court
State vs . Ajay Malhotra on 5 January, 2016
IN THE COURT OF MS. VANDANA JAIN: METROPOLITAN
MAGISTRATE03 ( MAHILA COURT): SOUTH EAST :
SAKET COURTS: NEW DELHI
JUDGMENT
STATE Vs. AJAY MALHOTRA FIR NO. : 800/2006 u/s 406/498A IPC PS : LAJPAT NAGAR A. ID No. of the Case : 02406R496152009 B. Date of Institution : 28.01.2009 C. Date of Commission of Offence : 18.01.1999 D. Name of the complainant : Smt. Dolly Malhotra D/o Sh. Raj Kumar Sharma E. Name of the Accused & his : Ajay Malhotra S/o Kanwal Parentage & Address Kishor Malhotra R/o D131/A IIIrd Floor, Moti Nagar, New Delhi F. Offence complained of : u/sec. 498A/406 IPC G. Plea of the Accused : Pleaded not guilty H. Order reserved on : 19.12.2015 I. Final order : Acquitted J. Date of such order : 05.01.2016 FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 1 of 17 Brief Statement of reasons for decision of the case:
1. That complainant was married to respondent on 18.01.1999 according to Hindu Rites and Ceremonies and her parents spent beyond their capacity in her marriage and after marriage it was revealed that accused Ajay Malhotra was not doing anything and he started demanding Rs. 1.5 lacs for doing some business. The complainant was harassed day in and day out for demand of dowry and accused used to beat her under the influence of liquor. It is further stated that after sometime accused Ajay Malhotra got a government service but even than he did not stop demanding the money. The demand of accused further increased and he also started demanding a car. It is further stated that her in laws used to instigate the accused to beat her. She was thrown out from matrimonial home on 29.12.2005 in the night without her daughter. It is further stated she brought her daughter back on 19.01.2006 with the help of police and on the same day accused came to her parental home and abused her and her family members in filthy language and thereafter this complaint was made.
2. On the basis of aforesaid complaint, FIR u/sec. FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 2 of 17 498A/406/34 IPC was registered alongwith Sec. 4 Dowry Prohibition Act. IO investigated the case and filed the charge sheet and all the accused persons i.e. accused Ajay Malhotra, his mother Saroj Malhotra, father Kanwal Kishor Malhotra and both sisters in law Anita Arora and Sheetal Khanna and brother in law Ajay were summoned. After compliance of Sec. 207 Cr.PC, matter was listed for charge. Vide order dated 29.04.2010 charge u/sec. 498A/406 IPC was framed against accused husband Ajay Malhotra and rest of the accused persons i.e. Saroj Malhotra, Kanwal Kishor Malhotra, Anita Arora, Sheetal Khanna and Ajay were discharged u/sec. 498A/406 IPC.
3. Thereafter, matter was listed for prosecution evidence. Prosecution cited 8 witnesses out of which 4 have been examined. PW1 is Ms. Dolly Malhotra (complainant herein), PW2 is Smt. Santosh, mother of complainant, PW3 is SI Rakesh Kumar who arrested the accused and filed the challan and PW4 is SI Balwan Singh who carried out the investigation in the present case. Thereafter, PE was closed.
4. Statement of accused u/s 313 Cr.P.C. was recorded FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 3 of 17 wherein he stated that case filed by the complainant is false and frivolous and he wish to lead defence evidence. Smt. Daljeet Kaur was examined as defence witness. Thereafter, defence evidence was closed.
5. I have heard final arguments on behalf of Ld APP for State as well as Ld counsel for accused and have perused the record carefully and have given thoughtful consideration to the case.
Appreciation of Evidence:
6. PW1 is Ms. Dolly Malhotra who is complainant in the present case. Before proceedings to the allegations made by the complainant in her deposition, it would be appropriate to discuss the definition and scope of Sec. 498A/406 IPC. "498A. Husband or relative husband of a woman subjecting her to cruelty: whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purpose of this Section, "cruelty" means FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 4 of 17
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her any person related to her to meet such demand.
Under Section 498A IPC, cruelty can be of two types. Firstly, willful conduct of a nature which is likely to drive a woman to commit suicide or to cause gave injury or danger to life, limb or health. Willful conduct can be both mental and physical but it must relate to a woman. Secondly, cruelty can also mean harassment with a view to coercing her or any person related to her to meet unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand. The second aspect is relatable to property, and should be with a view to coerce her or any other person related to her to meet any unlawful demand of property or FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 5 of 17 valuable security. Further, the harassment should be on account of her failure or failure of any other person related to her to meet the said demand.
In judgment Manju Ram Kalita Vs. State of Assam (2009) (13) SCC 330, it was held that cruelty and harassment are basic ingredients of Section 498A IPC. Petty quarrels cannot be termed as cruelty so as to attract 498 IPC. In judgment Vineet Vats Vs. State of NCT of Delhi 2014 (14) DRJ 449, it was held that mere demand of money unless it is accompanied by some kind of cruelty or harassment does not come within the purview of Section 498A IPC.
7. As regards Sec. 406 IPC, the essential ingredients of Section 405 IPC which invokes punishment u/s Section 406 IPC are (1) entrustment of property (2) demanding the same back (3) Refusal to return the same. Allegations should be specific and dated with regard to all the three ingredients.
8. Now coming to the facts of the case, in order to decide whether the statement given by the complainant/ PW1 during her examination in chief constitutes cruelty FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 6 of 17 defined u/sec. 498A IPC, I shall discuss each and every allegations one by one.
S. Allegations Remarks/ No. Findings
1. At the time of marriage it was This allegation do not fall disclosed from my in laws side that within the purview of my husband was working with my section 498A IPC. father in law but when I came to my matrimonial house I came to know that he was unemployed and he was doing nothing and he used to take liquor daily even he had taken liquor on the occasion of our marriage.
2. On 20.01.1999 when I went on Carrying liquor to honeymoon to Kullu Manali he took honeymoon does not with him lot of bottles of liquor and constitute any offence when we arrived at hotel my husband u/sec. 498A IPC. Further stated that I was not given sufficient allegations of giving dowry as I am one boy in my family beatings on fulfillment of and a car should be given to me and demand of car has not thereafter he gave beatings to me. been substantiated, no medical document has been filed in this regard. It is further not stated as to where complainant got beatings from the accused. There is no complaint of contemporaneous period to this effect.
FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 7 of 17
3. When I returned back to my This allegation do not fall matrimonial home above said incident within the ambit of Sec. was informed to my mother in law 498A IPC. who said that he would improve later on as he does not have proper understanding right now.
4. After 12 days when I returned back There is no allegation of from the honeymoon my mother in demand. Mere taunting law, father in law, sisters in law does not constitute namely Sheetal and Anita used to tell offence u/sec.498A IPC. that there was no need of such dowry articles which I had brought with me and that there was need of cash.
5. Within one week of my arrival at the No complaint filed on matrimonial house my husband gave record to substantiate beatings to me after taking beatings these allegations. No saying that I had not brought Maruti medical document car and heavy cash. These similar produced to show that incidents took place every day complainant was beaten.
No witness produced to this effect that any quarrel took place in the house.
6. As my husband was unemployed my Allegations is general, mother in law and my husband used vague and undated, to tell me to bring Rs. 1.50 lac for therefore, does not fall business. On which I replied that I within the ambit of Sec. could not pay the same as my father 498A IPC. was ill.
FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 8 of 17
7. In between my husband got a Govt. This allegation does not Job of helper in Consumer Co fall within the purview of operative Store, Karampura, New Sec. 498A IPC. Delhi. My husband was not satisfied with the job and he used to taunt 'kya tumhare maa baap andhe hai unko dikhayee nahi deta ki unka damad chaprasi laga hus hai". I replied that I was unable to meet his demands as my father used to remain ill and he was in hospital on which all the family members used to quarrel with me as I had not fulfilled their demands
8. In between I conceived in the month No document of of March, 1999. Due to above said miscarriage was filed quarreling and beatings I got which could support the miscarriage. contention of the complainant that the miscarriage occurred due to beatings given by the accused.
9. My husband and his family members Allegation is general and did not provide me proper medical vague and is not aid. Chachi of my husband took me to supported by any Govt. hospital where I was advised document. that I was in need of eminent medical assistance and that abortion should be done as I suffered from miscarriage but even then my in laws did not provide medical aid for a week.
FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 9 of 17
10. When my mother called me I told her This allegation does not about this incident. My mother asked fall u/sec. 498A IPC as my mother in law about the same on there is no demand which my mother in law said that if followed with harassment. you are not satisfied you provide her proper medical aid.
11. My sister Anu Chawla came at my This allegation does not matrimonial home and took me for fall u/sec. 498A IPC. treatment at Dr. Neelam's Clinic at Lajpat NagarI. Dr. Neelam advised me that there was a need of abortion and that poison may spread into the body if the abortion would not done.
This fact was told by me to my in laws on which my in laws replied that I should take the treatment but none from the family visited me in the clinic.
12. When I returned back at my parental This allegation does not home nobody (in laws) asked me fall u/sec. 498A IPC. about the treatment and I told them that I was advised to take one week bed rest. I called my husband to bring me to the matrimonial house but I heard on the telephone that my mother in law was telling to my husband that "usko aana hai to aaye ham lene nahi jaynge". My sister took me to the matrimonial house in the month of April.
FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 10 of 17
13. My in laws used to tell me that they Mere taunting does not need a child and that why I had constitute offence u/sec. aborted the child. 498A IPC and moreover the allegation is undated.
14. Both my sisters in laws used to visit Allegations is general, my matrimonial house and used to tell unspecific and undated. It me that their brother is the only boy in is not explained as to the family and that our family should when her sister in laws give heavy cash and car. came to her matrimonial home and suggested for giving heavy cash and car.
15. My husband used to ask for the share Allegation is general, of my property in property of my unspecific and undated. parents soon after the marriage.
16. My in laws had sold my jewelery as The allegation is undated. they wanted to purchase a house The jewelery allegedly which was purchased in the name of sold by in laws of my mother in law. complainant has not been specified here. The description of house purchased in the name of mother in law has not been given. Therefore, this allegation does not constitute any offence u/sec. 498A IPC.
17. On 28.12.2005 my husband and No police complaint to this parents in law tried to strangulate me effect. No strangulation using the shawl that I was wearing. mark on the neck of the My mother in law told my husband to complainant has been kill me. My daughter raised alarm proved by her. She did FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 11 of 17 upon which the neighbours started not get herself medically shouting towards my husband from examined. Even the their own house upon which they neighbours who started stopped strangulating me. Then I shouting towards her called my brother in law Harish husband have not been Chawla who refused to come in the cited as witnesses. Not a night. The next date I was asked to single name of neighbour leave the matrimonial house without has been given. The my daughter. Having no option I went parents of complainant to my parents house. also did not take any action on the next date after knowing that accused and his family tried to kill their daughter by strangulating her.
18. On 19.01.2006 I alongwith two police No allegation so as to officials went to my matrimonial house invoke Sec. 498A IPC. to bring my daughter as on 18.01.2006 my daughter called and asked me to come and take her. I also brought the woolen clothes of my daughter in the presence of police officials the same day. On 18.01.2006 I had made a complaint to the police officials in PS Moti Nagar.
19. On 19.01.2006 my husband came to No offence is made out my parents house and fought with my u/sec. 498A IPC even if parents and abused my parents on this allegation is the streets. He tried to assault me considered to be true. physically upon which I called my father in law as on earlier occasions police had not helped me. My father in law came to my house with his FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 12 of 17 brother and then they took my husband.
20. My husband continued harassing me Allegation is general and over the phone. vague.
9. Apart from considering allegations individually, if considered, as a whole, none of the allegations constitute offence u/sec. 498A IPC. The allegations made by the complainant in her testimony are general, vague and omnibus. In order to prove the guilt of accused for the offence u/sec. 498A IPC there should be a specific demand of dowry coupled with series of incidents of harassment. In the present case, though it is mentioned that demand of Rs. 1.5 lacs and Maruti Car was made but neither the date of incident has been mentioned nor the demand has been corelated to any occasion. The harassment perpetuated upon PW1 has further not been described by her in pursuance of alleged dowry demands. It is again stated by PW1 that due to beatings and quarrellings by the accused, she suffered miscarriage but no documents have been annexed alongwith present case which could show the reasons for miscarriage of complainant. The complainant has failed to produce any witness in support thereof who FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 13 of 17 could prove or could show that the complainant suffered miscarriage due to cruelty meted out by the accused upon her. Further, there is no MLC or any medical document which shows that PW1 was beaten by the accused at any point of time. No complaint before any authority or even to her parents has been placed on record to prove cruelty perpetuated upon the complainant by the accused. It is settled preposition of law that any petty quarrel between the husband and wife do not constitute Sec. 498A IPC. In the crossexamination of PW1, she has stated her was daughter doing well in school and used to participate in extra curricular activities which suggests that there was peace in the house.
10. PW2 Smt. Santosh who is mother of complainant has stated during her crossexamination that her grand daughter was a healthy child and she used to study and enjoy the life in the company of her son in law (accused). She further admitted that her son in law (accused) had admitted his grand daughter in school and she used to study well. She has also stated in the crossexamination that she used to fell bad as her son in law (accused) was a FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 14 of 17 Chaprasi, they used to feel anger. She has stated that her daughter (complainant) also used to feel bad and she didn't use to revolve openly but in the heart, she used to feel bad. She was in inconvenience as she haf to depend on the meager income of her husband and in her family there was plenty of money she used to enjoy a luxurious life which she was not able to enjoy at her in laws house. All these statements given by the mother of complainant shows that there was dispute between the parties due to work profile of the accused. Apart from aforesaid findings, it is pertinent to mention here that accused and his family tried to strangulate her and only with the intervention of neighbours, she could be saved. No even a single neighbour has been named who rescued her. Such a serious allegation has been made but the same is without any substance. The aforesaid allegations as a whole do not constitutes offence u/sec. 498A IPC against accused. Prosecution has failed to prove the guilt of the accused under the aforesaid section and therefore, accused Ajay Malhotra is acquitted u/sec. 498A IPC.
11. As regards Sec. 496 IPC, it is stated that complainant FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 15 of 17 has leveled allegations against her in laws that they had sold her jewelery as they want to purchase a house which was purchased in the name of her mother in law. Apart from making the statement, complainant has not given any detail of the house purchase for which jewellery of complainant was used. The prosecution has failed to prove that any jewelery belonged to the complainant which was allegedly used to purchase the house in the name of mother in law of PW1. Complainant has not produced any documents which could support her averments. It is pertinent to mention here at this stage that Ld. defence counsel has put certain photographs to the complainant and she had admitted the same in order to show that the complainant was in possession of her jewelery and had worn the same at various occasions. In my considered view these photographs nowhere gives the time when they were taken. Complainant in her complaint has not given date before which the jewelery was taken from her. Moreover, the photographs also do not bear any date, month or year and therefore these photographs do not provide any support to either of the parties in order to seek FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 16 of 17 any relief. Though, the dates have been mentioned on back side of photographs but these dates have not been proved to be of the same occasions as alleged during the evidence by any of the parties and therefore cannot be relied upon. The three essential ingredients for invoking Sec. 406 IPC are missing in the present case. There is no specific entrustment, there is no specific date for demanding of same back, there is no specific refusal to return any articles. Merely stating that jewelery articles of complainant were sold by her in laws would not suffice in the absence of any evidence, oral or documentary to the contrary. In view of abovesaid discussions, I am of the considered view that offence u/sec. 406 IPC is also not made out against the accused Ajay Malhotra. Accused Ajay Malhotra is acquitted from the charge framed for the offence u/sec. 498A/406 IPC.
12. Let the bail bond u/sec. 437A Cr.PC be furnished by the accused.
Announced in the Open Court on 05.01.2016 (VANDANA JAIN)
Metropolitan Magistrate03 (Mahila Court) SouthEast, Saket Courts, New Delhi 05.01.2016 FIR No. 800/2006 PS Lajpat Nagar State Vs. Ajay Malhotra Pages 17 of 17