Gujarat High Court
Rameshbhai Ambalal Patel Thro Poa vs State Of Gujarat on 1 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/4318/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 4318 of 2012
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RAMESHBHAI AMBALAL PATEL THRO POA
Versus
STATE OF GUJARAT
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Appearance:
MR D K TRIVEDI for the PETITIONER(s) No. 1,2
MR NIRAL R MEHTA for the RESPONDENT(s) No. 2
MS MOXA THAKKAR, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/03/2018
ORAL ORDER
1. By this application under Section482 of Code of the Criminal Procedure, 1973, the applicants - original accused have prayed for the following reliefs: 10(a) be pleased to admit and allow this application;
(b) quash and set aside the FIR bearing C.R. No.I19 of 2009 registered with Mahila Police Station, Anand and order dated 12.03.2012 passed by the learned Judicial Magistrate, First Class, Anand, below Objection Application at Exhibit 5 filed by Roshaniben;
(c) pending admission, hearing and final disposal of this application, be pleased to stay further proceedings of FIR bearing C.r. No.I19 of 2009 registered with Mahila Police Station, Anand; and also order dtd.12.03.2012 passed in objection application dtd.07.02.2012 filed by Roshniben at Exhibit 5.
(d) be pleased to pass such other and further orders which may deem fit in the interest of justice in favour of the applicant.
2. It appears that the daughter of the respondent no.2 viz.Roshniben got married with one Rajeshbhai Rameshbhai Patel. The applicant no.1 Page 1 of 16 R/CR.MA/4318/2012 ORDER is the fatherinlaw and the applicant no.2 is the brotherinlaw of Roshniben. The marriage of Roshniben with Rajeshbhai was solemnized on 25/01/2002. In the wedlock, a daughter was born viz.Diya. After the marriage, Roshniben went to U.S.A. with her husband. It appears that the applicants were already residing in U.S.A. past couple of years. On account of the matrimonial disputes between the husband and wife, the father of the wife i.e.the respondent no.2 lodged an F.I.R. at the Anand Mahila Police Station, interalia stating as under: I, the complainant Arvindbhai Bhailal Patel, 60 years old, Occupation - Business, Res. at - Village Axarpura, At present Res. at - A/4, Kevalkrupa Society, Opp. Mahi Canal Colony, Anand, Sojitra Road, Anand state in writing to you the officer that, I, the complainant reside at Anand with my family and maintain livelihood. My wife Pravinaben and two children are in my family. Chirag is the eldest son. His marriage is solemnized with Mittalben at Anand. Roshani is younger to her, she is 29 years old. Her marriage was solemnized with Rajeshbhai - son of Rameshbhai Ambalal Patel of Village Mantaj as per the Hindu Rituals and Customs at J.K. Park on 25.01.2002. My daughter Roshani has one daughter by wedlock. Her name is Riya. She is 5 years old. My daughter resides at America with her husband. My relatives and I gave gold, silver ornaments, sarees, clothes etc. gifts at the time of the marriage of my daughter. My daughter went with her husband for enjoying marriage life. My daughter handed over all 'stridhan' to her husband Rajeshbhai, her father in law Rameshbhai Ambalal and her motherinlaw Sharmishthaben. My daughter's husband Rajesh, her inlaws took 'stridhan' of my daughter and my daughter's elder brother in law Bhaveshbhai placed the goldsilver articles at some unkown place and my daughter was given only clothes to wear. They all took my daughter to America. They gave mental and physical harassment to her. They committed fraud with my daughter and they stated her that, they want to obtain a bank loan. By stating so and explaining her anyhow, they got divorce from her. She came to India from America and informed us all the facts. My daughter was given divorce illegally and her 'stridhan' of lacs rupees was taken away. My daughter gave her 'stridhan' to the members of her matrimonial house and though we demanded it back frequently, they do not return the same to us. They have cheated my daughter and committed breach of trust to her. Therefore, it is my lawful complaint against them. As the case is proceeded with in America at present, my daughter has gone to America for one month. She is supposed to return within short period. But, I have all the information about 'stridhan' given to my daughter. Therefore, I have lodged this complaint. The list of 'stridhan' has been given along with this complaint.
Sd/ Arvindbhai Bhailalbhai Patel
Page 2 of 16
R/CR.MA/4318/2012 ORDER
List of Stridhan
List of the articles of 'stridhan' given before, after and at the time of the marriage of the complainant Roshani and Rajeshbia Patel.
(1) Gold Set - gold Set of 110 grams of Vasant given at the time of the marriage, wherein necklace and earrings worth Rs.1,43,000/.
(2) Gold Set 50 grams given to elder sister in law Vandana Bhabhi worth Rs.65,000/.
(3) Gold Set 150 grams "rajvadi' shape given by the father of the complainant at the time of the marriage worth Rs.1,95,000/.
(4) Gold bracelet given by the father at the time of the marriage. 2 sets of bracelet, 60 grams worth Rs.78,000/.
(5) Gold armlet given by the father. 40 grams bracelet to be worn on hand worth Rs.52,000/.
(6) Gold Set 40 grams alongwith bangle and necklace 80 grams worth Rs.2,15,000/.
(7) Gold Bangle with 2 diamond - Bangles of real diamond of 80 grams worth Rs.1,45,000/.
(8) Gold Mangalsutra with diamond worth Rs.80,000/.
(9) White Pearl Set with gold 100 grams worth Rs.1,80,000/.
(10) Gold Set of Maroon colour 25 grams of Rs.34,000/.
(11) Gold Set of 25 grams Black Diamond Set and earing worth Rs.15,000/.
(12) Gold Set with Heart Design 100 grams worth Rs.1,50,000/.
(13) earrings of Kalkatti design to be worn in ear (kundal) 50 grams Rs.80,000/.
(14) Gold Chandelier of Kalkatti Design 50 grams worth Rs.80,000/.
(15) Gold Set given by Nutan Aunt, Gold Set of 50 grams worth Rs.75,000/.
(16) Pendent given by Pratima 20 grams worth Rs.30,000/.
(17) Gold bangle having the shape of tiger's face total 2 given by uncle of 40 grams worth Rs.80,000/.
(18) Gold Ring 10 grams Nakshatra Pendent worth Rs.15,000/.
Page 3 of 16R/CR.MA/4318/2012 ORDER (19) 10 grams small ruby (kind of ornament for nose) worth Rs.15,000/.
(20) 1 Gold earring 20 grams having Kalkati Design worth Rs.30,000/.
(21) earring having black pearl 20 grams worth Rs.30,000/.
(22) Brown Coloured Gold Set 30 grams worth Rs.75,000/.
(23) Gold Set given by Shri Vinubhai 60 grams worth Rs.90,000/.
(24) Earring 2 sets 20 grams worth Rs.30,000/.
(25) Gold Set 25 grams worth Rs.18,000/.
(26) Earring given to Vandaben worth Rs.15,000/.
(27) Diamond Set with Bracelet 80 grams worth Rs.1,05,000/.
(28) Bandhani (kind of ornament) to be work on head 40 grams worth Rs.60,000/.
(29) Earring with diamond and mangalsutra 20 grams worth Rs.30,000/.
(30) Gold Set having Maltak Design 80 grams worth Rs.1,40,000/.
(31) White earring Pearl Dulls worth Rs.52,000/.
The complaint written as above is received from the complainant and the offence is registered. Forwarded to the J.M.F.c., Anand.
Sd/ Illegible, Police Station Officer, Women Police Station, Anand.
3. It appears that the applicants had come to India for few days and taking advantage of their presence in India, the respondent no.2 lodged the F.I.R. so as to create trouble for them.
4. The plain reading of the F.I.R. would indicate that the same is for the offence of criminal breach of trust. As according to the respondent no.2, the 'stridhan' articles of his daughter have been illegally retained by the applicants. I take notice of the fact that the husband has not been arrayed as accused in the F.I.R. Let me take note of few developments, Page 4 of 16 R/CR.MA/4318/2012 ORDER which took place prior to the registration of the F.I.R. It appears that the husband of Roshniben initiated proceedings for dissolution of the marriage in the Circuit Court of the Tenth Judicial Circuit, Florida (U.S.A.). The final judgment of dissolution of the marriage passed by the Court at Florida, is extracted hereunder: IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT, IN AND FOR POLK COUNTY, FLORIDA Case No.:2006DR009034 Section:01 In RE: THE MARRIAGE OF:
RAJESHKUMAR R. PATEL, Husband, and ROSHANI R. PATEL, Wife.
____________________/ FINAL JUDGMENT OF DISSOLUTION OF MARRIAGE THIS CAUSE came on to be heard on the 4th day of January, 2007. Appearing before the Court were the Husband, RAJESHKUMAR R. PATEL, represented by his counsel of record, Samuel G. Crosby, Esquire. The Wife ROSHNI R. PATEL, did not appear although being duly notified. The Court being advised the parties have reached an agreement on all issues, which has been reduced to writing and filed with the Court, and such agreement has been entered into freely and voluntarily by, and being otherwise fully advised in the premises, hereby finds as follows:
1. This Court has jurisdiction of the parties and the subject matter.
2. The parties were married January 21, 2002 and Separated September 28, 2006.
3. The marriage is irretrievably broken.
4. There has been one child born of the marriage, namely, towit: DEEYA PATEL. born April 13, 2004.
5. The parties have entered into a Settlement Agreement on all outstanding issues, which this Court should ratify, confirm and approve.
THEREFORE, it is ORDERED and ADJUDGED as follows:
A. The marriage between the parties is hereby dissolved. B. The Settlement Agreement as entered into between the parties is hereby ratified, confirmed and approved by this Court. The parties are hereby directed and ordered to abide by same. A copy of same is attached hereto as Exhibit "A".
C. The parties shall share parental responsibility, for the minor child. The Page 5 of 16 R/CR.MA/4318/2012 ORDER Husband shall be designated as the primary residential parent and the Wife shall be the secondary residential parent. D. The Wife shall have visitation with the minor children in accordance with Administrative Order 520.3, a copy of which is attached hereto as Exibit "B".
E. The Husband shall be entitled to claim the income tax deduction for the minor child. The Wife shall execute and deliver to the Husband within ten days of written request form 8332, entitled "Release to Claim of Exemption for Child of Divorced or Separated Parents" or such other document or documents necessary to effectuate this provision. In the event that either parties' tax advisor recommend annual execution of form 8332 or other similar document, then the Wife shall execute and deliver same within ten days of written demand.
F. The Husband shall maintain a policy of health insurance for the minor child. The Husband shall pay the premiums for such insurance coverage. The parties shall be responsible for fifty percent of the reasonable and necessary health care expenses for the minor child for which coverage is not provided (inclusive, but not limited to, medical, ocular, dental, orthodontics, psychological or other form of health care expenses) for the minor child (inclusive, but not limited to payment of all deductibles, co pays, payments to providers for reasonable and necessary treatment that is to an out of network provider or other form of uncovered expenses etc). If either party incurs a medical expense the are seeking reimbursement for, that party shall provide to the other copies of the documentation evidencing all health care expenses for the minor child incurred by and for which they seek reimbursement. The nonincurring party shall reimburse the incurring party within thirty (30) days of receiving such documentation. The parties agree to consult with each other on any non emergency major expenses prior to incurring same. G. The Wife shall have all items of personal property presently in her possession, custody or control of as her sole and exclusive property free of all claims of the Husband.
H. The Wife shall assume and pay any and all debts in her sole name and any debts incurred by her after filing of the Petition for Dissolution of Marriage and shall indemnify and hold the Husband harmless from same:
I. The Husband shall have as his sole and exclusive property, free of all claims of the Wife the following assets:
i. The 2000 Toyota 4 Runner, which was owned by the Husband prior to the parties' marriage, free and clear of any interest of the Wife. ii. All items of personal property presently in the possession, custody or control of the Husband.
iii. The furniture, fixtures and appliances within the marital residence, all of which were the Husband's prior to the marriage; iv. The Husband's business known as Roshani Tobacco USA, LLC, d/b/a. The P Store.
J. The Husband shall assume and pay the following liabilities and shall indemnify and hold the Wife harmless and agrees to defend her from same:
i. Any and all debts incurred by the Husband after filing the Petition for Dissolution of Marriage;Page 6 of 16
R/CR.MA/4318/2012 ORDER ii. Any and all debts in the Husband's sole name; iii. The debts to AmScuth Bank.
K. The former marital residence located at 911 Avenue W.N.W., Winter Haven, Florida 33881, was owned by the Husband prior to the marriage. The Husband shall be entitled to the exclusive ownership of same. The Husband shall be responsible for all mortgage payments, utility payments and any other costs associated with the residence and shall indemnify and hold the Wife harmless for same.
L. Neither party shall be entitled to an award of alimony in any form or fashion, now or in the future.
M. Each party shall be responsible for their own attorney's fees and costs incurred.
N. Jurisdiction shall be reserved to enforce the terms of this Final Judgment for so long as jurisdiction may be lawfully retained.
DONE and ORDERED in Chambers, at Bartow, Polk County, Florida this the 4th day of January, 2007.
5. It appears that after the final judgment was passed by the Florida Court dissolving the marriage, Roshniben i.e.the wife filed an application in the very same Court for rehearing of the main matter. The Court at Florida passed an order dated 16/02/2010, which is extracted hereunder: IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT, IN AND FOR POLK COUNTY, FLORIDA Case No.:2006DR009034 Section:01 In RE: THE MARRIAGE OF:
RAJESHKUMAR R. PATEL, Former Husband, and ROSHANI R. PATEL, Former Wife.
____________________/ ORDER DENYING MOTION FOR REHEARING AND Rule is made absolute. Direct service is permitted.
ORDER CLARIFYING PRIOR ORDER This cause came on to be heard on the 4th day of February, 2010. Present at the hearing were the former husband and the former wife, each represented by their privately retained attorney of record. At the hearing a Page 7 of 16 R/CR.MA/4318/2012 ORDER lengthy discussion and argument was held regarding the issues raised in the Former Husband's Verified Motion for Rehearing dated February 23, 2009. Stipulations were made before the Court and after hearing the arguments of counsel, it is hereby ORDERED AND ADJUDGED
1. The aforementioned motion for rehearing is hereby denied.
2. This Court's Order setting aside Final Judgment and Marital Settlement Agreement entered in this cause and dated the 14th day of December, 2009 (hereafter the Prior Order) is hereby clarified as follows:
a. The last paragraph on page 4 which continues onto page 5 of the Prior Order grants the Motion to set aside the Final Judgment and Marital Settlement Agreement in its entirely, notwithstanding that the parties stipulated to the dissolution of marriage not to be addressed. It was the Court's impression that if the Court set aside the financial and parenting provisions of the Final Judgment, the Court was obligated to set aside the Final Judgment in its entirety, including setting aside the dissolution of marriage.
b. The parties have stipulated that neither of them wish to have the marriage reinstated. Indeed, the Former Husband has remarried. c. Further, the Court notes provisions of the Order regarding Motion to Dismiss entered by the Honourable Robert L. Doyel on September 15, 2008 in this cause. Said Order contains Final Judgment language and such Final Judgment was not the subject of a motion for rehearing nor was it the subject of an appeal.
d. Based upon the foregoing factors, the last paragraph on page 4 which continues onto page 5 of the Prior Order is hereby vacated, set aside and deleted nune pro tune to December 13, 2009. The intention of this Order clarifying the Prior Order is to amend and clarify the prior Order to delete any reference whatsoever to a reinstatement of the marriage of the parties and as to the issue of reinstatement of the marriage to restore the status quo ante at the time of the entry of the Prior Order. The parties remain divorced as if the Prior Order had never been entered and the marriage were never reinstated. e. The effect and intent of this Order is that the dissolution of marriage of these parties in the Final Judgment in this cause dated January 4, 2007 is confirmed as if the Prior Order had never been entered and to remove any inference that the Prior Order reinstated the marriage of the parties.
DONE AND ORDERED in Chambers at Bartow, Polk County, Florida, this 16 day of February, 2010.
6. Let me take notice of one more document pointed out by the learned counsel appearing for the applicants. The same is in the form of Excerpts of the proceedings before the Florida Court. It is in the nature of crossexamination of Roshniben.
Page 8 of 16R/CR.MA/4318/2012 ORDER (The following are excerpts of these proceedings.) THE Court: Just for the record, you have an interpreter that's going to interpret for your client, Mr. Lobb?
MR. LOBB: Yes, sir.
THE COURT: And his name?
MR. LOBB: It's Mr. Sharad Patel, SHARAD. THE COURT: Okay, and you're going to interpret for Ms. Patel? THE INTERPRETER: Yes, your Honor.
THE COURT: Okay. Would you raise your right hand. Do you solemnly swear or affirm the testimony you will interpret will be true and accurate so help you God?
THE INTERPRETER: Yes, your Honor.
THE COURT: Will both of the parties please raise your right hand to be placed under oath. Each of you solemnly swear or affirm that the testimony you're about to give will be the truth so help your God? MS. PATEL: Yes.
MR. PATEL: Yes.
***** MR. CROSBY: Your Honor, I'd like to call Roshani Patel as an adverse party witness, your Honor.
THe COURT: Okay.
ADVERSE PARTY WITNESS EXAMINATION (Of Roshani Patel) BY MR. CROSBY:
Q. Ms. Patel, you testified earlier about your dowry gold; isn't it true the last time you saw the dowry gold it was in a safedeposit box in Winter Haven, Florida?
A. Yes.
Q. Isn't it also true that both you and Rajesh could sign to have access to that safedeposit box?
A. Rajesh is only sign he said.
Q. Let me phrase it again. Did both you and Rajesh have access to the safe deposit box?
A. Yes.
Q. And the procedure for getting to the safedeposit box, because it was a selfaccess box, is you did not have to sign in with the bank? A. Yeah, we do have to sign in.
Q. Have you asked the bank if there's still any records as to who signed in to that safedeposit box?
A. Yeah.
Q. Are there any such records?
A. No. Q. So the bank has no records of who was in the bank in the safedeposit box?
A. No. Q. No they don't have any such records?
A. Bank has got the record. When the lock - to get access to the lockers only Rajesh has signed, it's not my signing.Page 9 of 16
R/CR.MA/4318/2012 ORDER MR. CROSBY: I don't have any further questions, your Honor. THE COURT: Cross?
MR. LOBB: No cross, sir.
***** (This concludes these excerpts.)
7. Thus, primafacie, it appears that Roshniben had a safedeposit box in her name alongwith the name of her husband viz.Rajeshbhai. All her articles were kept in the safe deposit box. The locker was being operated by both i.e.the husband as well as the wife. Roshniben admitted before the Court at Florida that all 'stridhan' articles were in the safedeposit box and had seen those articles the last time, she visited the safedeposit box in the Winter Haven, Florida.
8. Let me come back to the F.I.R. It appears that the police investigated the F.I.R. and ultimately, at the end of the investigation, thought fit to file a 'C' summary report. The Police at the end of the investigation, arrived at the conclusion that the dispute was civil in nature. The 'C' summary report was filed in the Court of Judicial Magistrate First Class, Anand. However, the Judicial Magistrate First Class, Anand, declined to accept the report on the ground that there was a warrant of arrest against the two applicants issued under Section70 of the CrPC. The order, which is impugned in this application dated 12/03/2012 is extracted hereunder: Read the application of the applicant. Heard the learned advocate appearing for the complainant viz.Arvindbhai. Read the report of the Investigating Officer. Read the written arguments of the learned APP at Exh.9.
For the aforesaid facts, this Court comes to the conclusion in this matter that the demand for 'C' summary does not appear to be accepted because in the investigation which has been conducted, the warrants under sections70 and 82, have not been executed after the issuance thereof. Therefore, since the investigation appears to have remained incomplete, the order has been passed to issue warrant under Section70 as per the demand of the complainant. If the default is committed in returning the same either served or unserved on or before 31/03/2012, the lawful proceedings will be initiated.
Page 10 of 16 R/CR.MA/4318/2012 ORDER
Sd/ Illegible
Dt.12032012.
9. Let me now take notice of one another proceeding initiated by Roshniben by filing a Special Civil Suit No.40 of 2012 for recovery of Rs.86,75,900/ with 12% interest p.a. and also, permanent injunction in respect of the properties mentioned in paragraph7(b) of the Exh.1 and properties mentioned in Para5(a) of the Exh.5 application seeking interim injunction for the immovable properties situated at Anand. I take notice of the fact that the Exh.5 application came to be rejected by the Civil Court vide order dated 27/09/2013. The order passed by the Civil Court below Exh.5 is extracted hereunder:
1. Plaintiff has filed the present suit against the defendants for recovery of Rs. 86,75,90000 alongwith 12% interest p.a. There on and also for the permanent injunction in respect of the properties mentioned in para7 (b) of the Ex. 1 and properties mentioned in para5 (a) of the Ex. 5 application seeking interim injunction for the immovable properties situated in Anand bearing survey No. 781/1/5 and another properties situated in the sim of village Malataj bearing revenue survey No. 1839/2, 1219, 1155 paiki 3, 1842/1, 1843/1, 1819/1 and 1891/2 against the defendants.
2. Defendants are duly served with the summons / notice of the Ex. 1 and Ex. 5 application and defendants have appeared through their ld. Advocate and filed their written statement at Ex. 20. It is contended that the suit is false and frivolous and plaintiff has no right to file such a suit against them and denied all the averments made in Ex. 1 and Ex. 5 in toto. It is contended that this court has no jurisdiction to entertain the present suit in respect of Stridhan, filed by the plaintiff against them. Further, it is contended that matrimonial litigation filed between plaintiff and defendant No. 1 in USA and necessary order also passed by the court of USA in respect of their litigation. Thus, this court has no jurisdiction to entertain present suit. Hence, it is asked to dismiss the suit and Ex.5 application with costs.
3. From the above From the above pleadings of the parties following points arise for my determination of Ex. 5 applications.
1. Whether the plaintiffs have any primafacie case ?
2. Whether the balance of convenience is in favour of the plaintiffs?
3. Whether the plaintiffs will suffer irreparable loss / injury, if injunction is not granted ?
4. What order ?
4. My findings to the above points are as follows.
Page 11 of 16R/CR.MA/4318/2012 ORDER 1. In the Negative 2. In the Negative 3. In the Negative 4. As per final order
5. In support of her case plaintiff has produced following documentary evidence.
Mark 3/1 Copy of FIR filed Police Station Mark 3/2 Copy of Judgment delivered by Florida Court Mark 3/3 & Copy of Village Form No. 6 Mark 3/ 4 Mark 3/5 to Copy of Village Form No. 7/12 Mark 3/18
6. Against this defendants have also produced following documentary evidence in support of their case.
Mark 21/1 Copy of Power of Attorney Mark 21/2 Village Form No. 6 : R E A S O N S :
7. POINT No. 1 TO 3 : All these points are interconnected with each other and therefore to avoid repetition of facts and for the sake of convenience, I discuss all the above point together.
8. The ld. Advocate for the plaintiff has argued that the defendant No. 1 is the husband of plaintiff and defendant No. 2 is fatherinlaw of plaintiff and defendants No. 3 and 4 are the brother of defendant No. 1 and they are residing together. Further, it is argued that all the defendants are citizen of USA and also reside in V.V. Nagar permanently. Further, it is argued that all the ornaments of stridhan lies in the custody of defendant N. 1 and put in bank locker at Anand. Further, it is argued that plaintiff and defendant No. 1 got married on 25/01/2002 and thenafter they reside together at Anand and later on they bring her at USA. Further, it is argued that defendant NO. 1 has fraudulently obtained divorce with plaintiff in the Florida court which is challenged by the plaintiff and it is canceled by the competent court of Florida and then after plaintiff's father has lodge one complaint in respect of stridhan with Anand Mahila Police Station and all the defendants were remained present before Anand Mahila Police Station and then they runaway to USA. Further, whatever proceedings carried out in respect of stridhan prior to present suit is filed against the defendants by the plaintiff and looking to the huge amount of the stridhan it will take too much time to dispose of the present suit and meanwhile it is necessary to pass order of interim injunction in respect of properties mentioned in Ex. 5 application otherwise defendants will dispose of all the immovable properties and if they succeed then the suit will become infectious and decree will also paper decree. Further, it is argued that plaintiff has proved primafacie case, balance of convenience is also in favour of plaintiff and if the injunction is not granted then the plaintiff will suffer irreparable loss which can not be compensated in Page 12 of 16 R/CR.MA/4318/2012 ORDER terms of money. Ultimately it is argued to grant Ex. 5 application.
9. Ld. advocate for the defendants has argued that the defendant No. 1 has no any immovable residential house on 25/01/2002 and thus the say of the plaintiff that after marriage she reside with the defendant No. 1 at Anand is not maintainable. Further, it is argued that plaintiff has not produced any evidence to show that in which bank defendant No. 1 is having locker and stridhan is lies with that locker. Further, it is argued that plaintiff has not stated any thing when she went to Florida and whe she returned to India. Thus, plaintiff has suppressed the material facts and fraudulently filed present suit in India with fabricated facts which is not maintainable, because matrimonial disputes are already carried out between plaintiff and defendant No. 1 in court of USA at Florida and the Hon'ble court f Florida also passed order in that matter. So, the jurisdiction lies with Florida court instead of India and on that ground suit as well as Ex. 5 is required to be rejected. Further, it is argued that if the defendants are interested in only dowry then why they bring plaintiff with them at Florida and all the ornaments kept in India. Further, plaintiff has filed affidavit in India, but at that relevant time she is in USA. Thus, plaintiff has no primafacie case and balance of convenience is also not in favour of plaintiff. Ultimately, ld. Advocate for the defendants has argued th reject the Ex. 5 application.
10. Now, plaintiff has filed the present suit against the defendants to recover Rs. 46,76,90000 of her stridhan. Further, the address of all the defendants have been shown at V.V. Nagar and address of USA has not been shown. On the contrary ld. Advocate for the plaintiff has argued that the defendants are citizen of USA, in these circumstances the address of USA is required to be mentioned in Ex. 1 as well as Ex. 5 which is suppressed by the plaintiff. Further, looking to the documentary evidence, it transpires that after marriage plaintiff went to USA and reside with defendant No. 1 and with this matrimonial relationship they got one kid namely Diya and at present she reside with the defendant No. 1 at USA. Further, plaintiff has stated in Ex. 1 and Ex. 5 that her marriage ceremony performed at Anand on 25/01/2002 and at that time her father and relatives have given lots of gifts and gold and silver ornaments and the details of the stridhan is mentioned in schedule which is given with Ex. 1 at Pg. No. 8 to 11 and in total the amount of all the ornaments comes to Rs.46,76,90000 and for that very purpose plaintiff has not produced single bill to show that these much ornaments purchased by her father for the purpose of stridhan which create doubt. Because this is a huge amount and for that bill is required to be produced. Further, looking to the arguments and pleadings of plaintiff she doesn't say anything that when she went to Florida with defendant No.1 and also not stated that how long she reside at Florida with defendant No.1 which is must and necessary averment, because she staed that she reside with defendant No.1 at VV Nagar and on other hand she also stated that defendants are permanent resident of USA. So, how many time she reside with the defendant No.1 at Anand is required to be disclosed by the plaintiff for just decision of this Ex. 5 application. Thus, looking to the entire pleadings and averments of Ex. 1 and Ex. 5 application plaintiff doesn't say about time, duration and date. Now, on perusing the documentary evidence produced by the plaintiff at Mark 3/1 which is copy of FIR lodge by her father on dtd 09/03/2009, it transpires that they have not disclosed the date on which this offence has Page 13 of 16 R/CR.MA/4318/2012 ORDER been occurred , they only stated that prior to six years ago, it means when present offence occurred in lieu of stridhan is not disclosed by father of the plaintiff. Further, looking to the FIR, it is lodged against the defendants No. 2 and 3 only and it is not lodged against the defendant No. 1 who is husband of plaintiff which also create doubt. Further, on perusing FIR whatever facts stated in FIR about ornaments is quite differ from the schedule mentioned in Ex. 1. Thus, it also create doubt against the conduct of plaintiff. Further, on perusing the document produced at mark 3/2 is order of Florida court in respect of litigation carried out between defendant No. 1 and plaintiff, it transpires that the Florida court has passed order on dtd 14/12/2009 which is not mentioned by the plaintiff in her pleadings. Further, plaintiff has not given any details of litigations carried out between her and defendant No. 1 at Florida court in her affidavit. Further, on perusing the document produced at mark 27/1, it transpires that it is filed in Florida court on dtd 21/03/2013 and on perusing this judgment in para2 the court has mentioned about stridhan and it is ordered to defendant NO. 1 to handover the ornaments to the plaintiff and if the defendant No. 1 is failed to comply with then he has to pay $ 59,00000 to the plaintiff. In these circumstances, it transpires that the matrimonial dispute including stridhan is carried out in Florida court between plaintiff and defendant no. 1 which is suppressed by the plaintiff in her pleadings. Thus, looking to the documentary evidence produced at mark 27/1 and 27/2, it transpires that the litigation carried out between plaintiff and defendant No. 1 in Florida court and cause of action arise out of their matrimonial relation and stdidhan also one kind of reason arise from their matrimonial relation. In these circumstances primafacie it transpires that the cause of action arise at USA, but for sake of argument if it is presumed as per say of the plaintiff that her stridhan is lies with the Bank locker at Anand then it is must for the plaintiff to disclose the name of the bank in which defendants have kept this stridhan and in absence of it, merely making allegation on the defendants are not tenable. Further, from the pleadings of Ex.1 and Ex.5, it transpires that plaintiff went to Florida and reside with defendant No. 1 and they have one kid namely Diya. Now, looking to the documentary evidence produced by the defendants, it transpires that they are resident of Florida and doing their business and they are involved in employment and well settled at USA, then chances to reside at Anand is very less. So, the say of the plaintiff that she reside with defendants at Anand is not maintainable. Further, on perusing the document produced at mark 27/1 which is copy of judgment delivered by Florida court, in para4 of the said judgment it is mentioned that the defendant No. 1 is doing business in the name of plaintiff Roshni Tobacco, USA. So, looking to this, the say of the plaintiff that defendants are very eager to grab her stridhan is create doubt, because if the defendants are eager to grab her stridhan then they never start business in the name of plaintiff and the concerned court has ordered to pay $ 48,50000 to plaintiff from the business income which is run by the defendants in her name and this material fact also suppressed by the plaintiff in her Ex.1 and Ex.5 application. So, looking to the entire documentary evidence, it transpires that plaintiff has fabricated false averments and filed present suit to harass the defendants which is not maintainable at the stage of Ex. 5 and at the stage of Ex. 5 court has to consider only three ingredients i.e.primafacie case, balance of convenience and irreparable loss and in present case as discussed above, plaintiff is failed to prove all these three ingredients, because Page 14 of 16 R/CR.MA/4318/2012 ORDER plaintiff has not produced single bill to show that her father has purchased gold and silver ornaments and handedvoer her as stridhan. Further, looking to the order of Florida court, the prayer raised by the plaintiff has been considered by the court and in these circumstances the balance of convenience also not in her favour in present case on hand, because she has not averred single word that why present suit is filed against the defendants in India and only reason mentioned is that stridhan lies in Indian bank, but she failed to state the name of bank in which her stridhan kept by the defendants. So, in these circumstances she failed to establish balance of convenience in her favour and also failed to establish that if the injunction is not granted then she will suffer irreparable loss which can not be compensated in terms of money. Hence, in view of the above discussion, I reply point No. 1 to 3 in the negative.
11. POINT No. 4 : In view of the above discussion, I pass the following final order in interest of justice.
: O R D E R :
➔ Application Ex. 5 preferred by the plaintiff is hereby rejected. ➔ Costs of this application shall be the cause of the suit. ➔ Pronounced in the open court on 27th day of September, 2013.
10. It appears that thereafter, Roshniben did not appear before the Civil Court. Ultimately, the suit came to be dismissed for default. The order dated 05/12/2015 is extracted hereunder: Made call out of pltf's advocate. Perusing rojkam of dated 22/4/15, the right of evidence of plaintiff is closed. When it is so, there being no counterclaim, it is not desirable to continue with the matter and taking evidence of defendants that order of closing right of evidence of plaintiff is passed on 22/4/15. Since then plaintiff never approached Court for proceeding with this matter for any stage. Plaintiff not remaining present either in person or through POA or through pleader. Hence, matter is dismissed for default, for nonprosecution.
Anand.
5/12/15 sd/ illegible.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no case worth the name is made out to prosecute the two applicants herein for the offence punishable under Section406 of the IPC. The facts, which I have narrated above, are sufficient for me to come to the conclusion that the F.I.R. was lodged by the father of Roshniben with an oblique motive Page 15 of 16 R/CR.MA/4318/2012 ORDER i.e. with a view to see that the two applicants are not able to go back to U.S.A. In a dispute essentially between the husband and wife, it is very unusual to note that there are no allegations against the husband in the F.I.R. except few general statements. The Police has also not found any substance in the F.I.R. Unfortunately, instead of looking into the report of 'C' summary filed by the police, the Magistrate considered something extraneous in the form of an arrest warrant. In the overall view of the matter, I am convinced that the case is one of quashing of the F.I.R. as well as the order passed by the Judicial Magistrate First Class, Anand, dated 12/03/2012.
12. In the result, this application succeeds and is hereby allowed. The F.I.R. bearing C.R. No.I19 of 2009 registered with the Mahila Police Station, Anand, is hereby ordered to be quashed. Consequently, the order passed by the Judicial Magistrate First Class, Anand, dated 12/03/2012 is also hereby quashed. All consequential proceedings pursuant thereto stand terminated.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 16 of 16