Delhi District Court
Cr No. 391/17 "Divya Johar vs . State & Ors." on 8 May, 2018
CR No. 391/17 "Divya Johar Vs. State & Ors."
IN THE COURT OF SH. GAUTAM MANAN, ASJ(SFTC)
SOUTH WEST, DWARKA ,NEW DELHI
Criminal Revision No. 391/17
Smt. Divya Johar
D/o Shri. A.K. Taneja
W/o Sh. Rajat Johar
Present address: D-3/3609, Vasant Kunj
New Delhi-110070 .... Revisionist
Versus
1. State
through NCT of Delhi.
2. Sh. Rajat Johar
S/o Shri. Ashok Johar
R/o C-II/1060, 1st floor
Palam Vihar, Gurgaon-122017
Also at:-
H-407, Palam Vihar, Gurgaon-122017
3. Sh. Ashok Johar
4. Smt Meera Johar
Both at
H-407, Palam Vihar,
Gurgaon-122017 ... Respondents
.
Date of institution of Revision : 26.08.2017
Date on which judgment reserved : 28.04.2018
Date of judgment : 08.05.2018
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ORDER
1. Revision petition preferred by complainant / revisionist is directed against order dated 19.07.2017 passed by Ld. Mahilla Court, South West District, Dwarka Courts, in case FIR no. 8/13 titled as "State Vs. Rajat Johar & ors." thereby Ld. Trial Court framed charge for offence punishable u/s 323/406 IPC against respondent no.2 and framed charge for offence punishable u/s 406 IPC against respondent no. 4 and discharged respondent no. 3 in the present case.
2. Brief facts of the case are that on 14.04.2012 complainant made a complaint to ACP, CAW, alleging physical violence and harassment by respondent no. 2 to 4 for property and money. Complaint lodged by complainant resulted in FIR No. 8/13.
3. Allegations as made by complainant are that she got married to respondent no. 2 on 16.05.2009 and started living at Hyderabad. In 2011-12, she was beaten by her husband (respondent no. 2) six times. After complainant gave birth to child on 02.02.2011, respondent no. 4 (mother-in-law of complainant) visited Hyderabad in April 2011 and forced her to do household chores. She deprived complainant of proper nutritious diet. Respondent no. 4 instigated respondent no. 2 to harass her for not adding his name to savings bank account of complainant and as a co-owner of the flat. Complainant Criminal Revision Page 2 of 9 CR No. 391/17 "Divya Johar Vs. State & Ors."
stated that respondent no. 2 usually visited his parents house before returning home from office and on their instigation, he harassed her. Respondent no. 4 put all her belongings and child in a separate room so as to deny conjugal relations. In October, 2011, respondent no. 2 transferred Rs 12.5 lacs to account of respondent no. 4 to show that he had no money for complainant and child. Respondent no. 2 beat her thrice in April-June 2011 and abused her in filthy language. For safety of child & complainant, complainant took consent of respondent no. 2 & 3 and returned to Delhi on 01.07.2011. When complainant told respondent no. 2 & 3, they did not give her any money and told her to get money from her parents when she visits her. In August 2011, respondent no. 2 told complainant to stay with her parents separately from him for one year. In the meantime, respondent no. 2 got transferred to Gurgaon. He also visited complainant's parental house to insist upon his demand of staying separately. On 11.09.2011, while respondent no. 2 was at Hyderabad, respondent no. 3 & 4 visited parental house of complainant and scolded her for asking money from respondent no. 2. In 3rd week of September 2011, respondent no. 2 shifted to Gurgaon and rented his brother's house. In October 2011, respondent no. 2 took complainant from her parental house to a mall but he harassed her for two hours by verbally abusing her. After Diwali, complainant went to rented house of accused respondent no.2. However, he did not give time to complainant or the child. On Criminal Revision Page 3 of 9 CR No. 391/17 "Divya Johar Vs. State & Ors."
31.12.2011, when complainant asked for money from respondent no. 2, he told her to add his name in her savings bank account. That day respondent no. 2 visited his parents and after returning back, he started shouting abuses at complainant. Respondent no. 2 called respondent no. 3 and complainant's father. Respondent no. 3 told complainant that ladies do not ask about finances in their family and she cannot stay in that house. On 27.03.2012, respondent no. 2 dropped complainant at her parental house. When she returned on 03.04.2012, respondent no. 2 asked her why she had come back. Respondent no. 2 started hitting her and pulled out a tuft of her hair. Complainant called her father who informed Haryana PCR. Police arrived and complainant left with her child and his medicines and some clothes.
4. On the basis of material on record, Ld. Trial Court discharged respondent no. 3 and framed charge against respondent no. 2 & 4 vide its order dated 19.07.2017.
5. Impugned order is assailed by revisionist/complainant on ground that the Ld. Trial Court failed to consider that respondent no. 2 physically & mentally tortured revisionist repeatedly and beaten her six times on the intimidation of respondent no.3 & 4 and therefore respondent no. 2 to 4 should have been charged for the offence punishable u/s 498A IPC.
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6. It is submitted that though Ld. Trial Court framed charge for offence punishable u/s 323 IPC only against respondent no. 2, however, Ld. Trial Court failed to appreciate that hurt was caused to revisionist by respondent no. 1 on instigation of respondent no. 3 & 4 and as such they should have also been charged for the said offence.
7. It is submitted that Ld. Trial Court failed to take notice of statement of complainant dated 25.03.2014 which was recorded during the investigation of the case in which she detailed incidents of cruelty upon her. Revisionist also submitted that some of her gold articles were recovered from the house and locker which was in the joint name of respondent no. 3 & 4 and hence charge for the offence punishable u/s 406 IPC should have also been framed against respondent no. 3.
8. It is submitted that on behalf of revisionist that the Ld. Trial Court in view of the observation made by Hon'ble Apex Court in Sheoraj Singh Ahlawat & Ors. Vs. State of U.P and Anr (2012) 10 SCR 1034 ought to have framed charge for the offence punishable under section 498A/406/34 IPC & 323/34 IPC.
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9. Respondent no. 2 to 4 contested revision petition by filing a detailed reply. It is submitted that the Ld. Trial Court has duly considered the facts and the law applicable and there is no illegality or error in impugned order. It is stated that revision petition is based upon false and contradictory facts.
10. I have heard Ld. Counsels for the parties and have gone through the record.
11. As far as allegations U/s 498A IPC are concerned, after going through contents of initial complaint, I find there is no specific allegation against respondents no.2 to 4 of inflicting dowry related cruelty on the revisionist. Allegations that respondents no. 3 & 4 were instigating husband of revisionist to inflict cruelty on her or to demand dowry are unsubstantiated and there is nothing on record which suggest so except of a vague allegation of the revisionist. Contents of complaint indicate that they were residing separately from their son and complainant.
12. Allegations against respondents no. 2 to 4 in respect of demands are appearing in the statement of complainant U/s 161 Cr.P.C The same was recorded after about a year of her initial complaint. True that initial complaint cannot be treated as encyclopedia but it has Criminal Revision Page 6 of 9 CR No. 391/17 "Divya Johar Vs. State & Ors."
to kept in mind that complainant is an educated woman from healthy socio-economic background. Her initial complaint is having details of her matrimonial life before her separation and the same does not seems to be prepared in hurry. Ld Trial Court has rightly pointed out that incidents narrated by complainant in her initial complaint are differently described in statement recorded U/s 161 Cr.P.C besides being substantially improved. There are material inconsistency and improvisation in two versions of complaint.
13. After going through her complaint, it can be easily gathered that is no material on record which establishes that the revisionist was treated with cruelty by the respondents relating to any dowry demand. Merely because respondents no.3 & 4 are parents of husband of revisionist they cannot be allowed to be prosecuted in the absence of any specific act attributed to them.
14. In a case titled as Neera Singh Vs. State, 2007 (3) AD (Delhi) 508 it is held that the benevolent provisions of Section 498 A IPC which were brought into statute book to protect the harassment and cruelty meted upon woman by her husband and other in-laws, are being grossly misused in many cases by filing false complaints on trivial issues. It was further held that a criminal case based on such complaint should be nipped at the bud.
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15. As such, I do not find any error or illegality in the orders passed by the Ld. Trial Court while discharging the respondents no.2 to 4 for the offence punishable under Section 498A IPC.
16. As far as the allegations in respect of offence under Section 406 IPC are concerned, essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:
(i) entrusting any person with property or with any dominion over property;
(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.
17. There is no allegation in the complaint which shows that any articles were entrusted to respondent no.3. Complainant does not mention any entrustment to respondent no.3. Recovery of some ornaments from a locker which was in joint name of respondent no.3 or from house where he was residing is not enough to frame charge against respondent no.3 for offence punishable u/s 406 IPC specially when there is no allegation of entrustment or that he has dishonestly misappropriated those articles or converted it for his own use. Criminal Revision Page 8 of 9
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18. Thus, allegations made in the complaint lacks any material which could have enabled the Court to frame charge against respondent no.3 for the offence under Section 406 IPC.
19. There are allegations that complainant was beaten up on 03.04.2012 by respondent no.2 and PCR record supports this allegation. However, there are no allegations against respondents 3 & 4 for beating complainant. As such, Ld Trial Court rightly framed charge for the offence u/s 323 IPC only against respondent no.2.
20. In above noted facts, I find that impugned order does not suffer from any material irregularity or infirmity. No ground is made out to interfere with impugned order. Revision petition lacks merits and same stands dismissed.
Trial Court Record be sent back along with copy of order. File be consigned to Record Room.
Announced in the open court on 8st May, 2018.
Digitally
signed by (GAUTAM MANAN)
GAUTAM
GAUTAM
MANAN
ASJ (SFTC) /SOUTH WEST
MANAN Date: DWARKA COURTS:DELHI
2018.05.09
11:55:28
+0530
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