Punjab-Haryana High Court
Dalip Kumar @ Deepa vs State Of Punjab And Another on 26 July, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. M-22716 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: July 26, 2012
Crl. Misc. No. M-22716 of 2010 (O&M)
Dalip Kumar @ Deepa
...Petitioner
Versus
State of Punjab and another
...Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Veneet Sharma, Advocate
for the petitioner.
Ms. Gagan Mohini, AAG, Punjab.
Mr. Vaibhav Aggarwal, Advocate
for respondent No.2..
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the Digest
RITU BAHRI, J.
This petition under Section 482 Cr.P.C. has been moved by the petitioner for quashing FIR No. 151 dated 02.09.2009 under Sectioins 498-A, 406, 506, 120-B IPC registered at Police Station C-Division, Amritsar City (P-1) and all the consequential proceedings arising therefrom qua petitioners.
The petitioner is parental uncle of husband of respondent No.2- Arti Verma. The marriage of his nephew took place on 30.11.2007 was solemnized on 30.11.2007. On account of matrimonial dispute between them, the FIR was registered in which the petitioner has been arrayed as one of the accused. The allegations have been levelled against six family members of Vishal. Respondent No.2-Arti Verma and Vishal were residing Crl. Misc. No. M-22716 of 2010 (O&M) -2- happily till the death of Chanchal Rani-mother-in-law of the complainant. Accused were having an ancestral house at Katra Khajana Amritsar and they sold the said house. Accused Vikash and Sonu in active connivance with the accused Simmi and Annu ddi not given 1/3rd Share of Vishal from the said house and the accused Bobby purchased the house in his personal name by spending the share of Vishal also and thereafter mortgaged the said house with the Bank which he had purchased by utilizing the share of the Vishal thereafter he failed to repay the installments and then all the accused in connivance with each other started pressurizing Arti to bring Rs. 1 lac from her parents as her is living in America. She was subjected to physical torture. On the intervention of her family members Rs. 3 lacs given to Vishal and Vikas as sent by her parents from USA for doing business of Goldsmith. The house mortgaged could not redeemed by the accused Nos. 1 and 2. The allegation in the FIR is that on 06.04.2009 all the accused gave severe beating to the complainant. Accused Simmi and Annu, Vishal and Sonu dragged her on the floor and compelled to sign on blank papers. Deepa who was also present at that time instigated all the accused to finish the life of the applicant and close the chapter forever. The allegation is that without telling the complainant, a divorce petition was filed levelling the allegation that he had left the matrimonial house on 15.03.2009, despite the best efforts made by the family members.
In the divorce petition, she has put in appearance on 28.05.2009 but she was not allowed to attend the proceedings on 02.06.2009 by all the Crl. Misc. No. M-22716 of 2010 (O&M) -3- accused. Neither accused No. 1 Vishal nor his counsel appeared in the Court on 02.06.2009. The case was called several times and it was dismissed in default. Mother and brother of the complainant were present in the Court premise and on the same date at 7:00 pm. All the accused gave her severe beating and turned her out from the matrimonial house. The accused also snatched all the gold ornaments of the complainant and did not allow her to use Ishtri Dhan and misappropriated the same.
On the basis of this FIR, the investigation has been carried out and challan has been presented on 02.06.2010 against the petitioner as well as other co-accused.
On notice, reply has been filed by Assistant Commissioner of Police (South) stating that after registration of the FIR, investigation was carried out and a challan has been presented on 02.06.2010, the petition for quashing is not maintainable and the petitioner can take all the pleas at the time of framing of charges.
Learned counsel for the petitioner has sought quashing of FIR on the ground that the only allegation is that the petitioner is the paternal uncle of the husband of the respondent No.2 and is residing separately. On 06.04.2009, the complainant was dragged on the floor and compelled to sign the blank paper. She was given severe beating. The petitioner had instigated all the accused to finish the life of the complainant and close the chapter forever. The petitioner is residing separately from the matrimonial house of respondent No. 2. His family consist of his wife two children and Crl. Misc. No. M-22716 of 2010 (O&M) -4- running the business of selling watches in the name and style of D.K. Watch Co. at Shastri Market and Amritsar. The allegation are vague and general of nature and his name has been dragged in the FIR merely being the paternal uncle and to weave the net as wide as possible. He has referred the judgment of Hon'ble the Supreme Court in Sushil Kumar Sharma v. Union of India and others 2005( 3) RCR (Criminal) 745. While examining Section 498-A, Hon'ble the Supreme Court upholding the constitutional validity of Section 498-A has held that the object is to prevent the dowry menace. The intention is to misuse the provision by levelling the false allegations against the family members who are not even involved in day to day life of the couple. He has referred to a judgment of Coordinate Bench of this Court in Jasmin & another v. State of Haryana and another 2008 (4) RCR (Crl.) 228 where no specific allegations have been levelled against the brother and sister of the husband. The only allegation is that Istridhan/ dowry articles were entrusted to all the accused in the presence of relations, respectable and neighbours etc. They have not been returned, it will not amount to Section 498-A and 406 IPC. The FIR was quashed qua the petitioner following the consistent view given by this Court in Kamaljit Singh v. State of Punjab 2004 (1) RCR (Criminal) 321, Rajinder Mohan Kashyap v. Om Parkash Sharma, 2005 (1) RCR (Criminal) 274; and Anisha Bhandari v. State of Haryana, 2005 (2) RCR (Criminal) 429.
Mr. Vaibhav Narang, learned counsel for respondent No.2 has vehemently argued that in the allegation in the FIR qua the petitioners are Crl. Misc. No. M-22716 of 2010 (O&M) -5- specific in nature. He may be residing separate but the complainant has specifically stated that on 06.04.2009, he was present in their house and had instigated to finish the life of the complainant and prima facie offence under Section 498-A is made out against the petitioner and he can taken all the pleas before the trial Court and living separately will not call for quashing of FIR in the present case.
After hearing learned counsel for the parties, this Court proceeds to examine the provision of Section 498-A, which are as under:
"498A. Husband or relative of 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 purposes of this section, "cruelty"
means- (a) any wilful 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 or Crl. Misc. No. M-22716 of 2010 (O&M) -6- any person related to her to meet such demand.]"
The allegation are against the other family members i.e. Vikash, Sonu, Simmi and Annu who after the death of her mother-in law Chanchal Rani got involved in property dispute which was ancestral in nature. The allegation and the instigation, if any will not constitute offence under Section 498-A. As per Section 498-A (a) the said clause, 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. There is no allegation in the FIR that conduct of the petitioner Deepa was amounting to cruelty, which was likely to provoke the complainant to commit suicide or cause any injury to her life. Therefore, the explanation (a) in Section 498-A is not attracted.
In the facts of the present case, Rs. 3 lacs was given by the parents of the complainant to accused No. 1 and 2 to start the business and get the house redeemed. It cannot be treated as unlawful demand which falls in Section (B) of Section 498A.
The principle relating to exercise of the jurisdiction under 482 to quash the complaint and criminal proceedings have been reiterated by Hon'ble the Supreme Court in several decision as well as in State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, has held as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court Crl. Misc. No. M-22716 of 2010 (O&M) -7- in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report for the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.Crl. Misc. No. M-22716 of 2010 (O&M) -8-
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is Crl. Misc. No. M-22716 of 2010 (O&M) -9- maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Hon'ble the Supreme Court in S.W. Palanikar v. State of Bihar, 2001 (4) RCR (Crl.) 572 has held that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. It is observed as under:
"8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
9. The ingredients in order to constitute a criminal breach of trust are: (i entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law Crl. Misc. No. M-22716 of 2010 (O&M) -10- prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 on facts of that case, has expressed thus: (SCC p. 177, para 15)
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement Crl. Misc. No. M-22716 of 2010 (O&M) -11- which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
(emphasis supplied) In the facts of the present case, there was no entrustment of any dowry articles. The entrustment of Rs. 3 lacs by the father of the complainant was accused Vishal and Vikas. The purpose was to get their house redeemed by doing the business of gold smith. The offence under Section 406 IPC is not made out against the petitioner Dalip Kumar @ Deepa, who was the maternal uncle of the complainant Vikas.
Following the law laid down by Hon'ble the Supreme Court in Bhajan Lal's case (supra) no offence under Section 406 IPC against the petitioners is made out as there was no entrustment of gifts or dowry Crl. Misc. No. M-22716 of 2010 (O&M) -12- articles, which were subsequently misused. So far as Section 498-A(a) is concerned, which is also not made out as the allegations are not so serious as instigation cannot be termed at its face value which can lead to a woman to commit suicide .
Applying the conditions Nos. 2 and 5 given by Hon'ble the Supreme Court in Bhajan Lal's case (supra), there is no rigid formula but in the facts of the present case, no offence under Section 406 and 498-A is made out and as per judgment in Bhajan Lal's case (supra), it follows the condition Nos. 2 and 5.
For the reasons aforementioned, FIR No. 151 dated 02.09.2009 under Sections 498-A, 406, 506, 120-B IPC registered at Police Station C- Division, Amritsar City (P-1) and all the consequential proceedings arising therefrom qua petitioners.
Accordingly, the petition is allowed.
(RITU BAHRI) JUDGE July 26, 2012 Atul