Kerala High Court
Arun.G.Nair vs State Of Kerala on 22 October, 2019
Equivalent citations: AIRONLINE 2019 KER 607
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941
Crl.MC.No.6565 OF 2017
AGAINST THE ORDER/JUDGMENT IN CC 487/2017 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, KANJIRAPPILLY
CRIME NO.240/2017 OF PONKUNNAM POLICE STATION, KOTTAYAM
PETITIONER/ACCUSED 1 TO 3:
1 ARUN.G.NAIR
AGED 31, S/O. KESAVAN GOPINATHAN NAIR,
UTHUMPARAYIL HOUSE, MURIKKUMPUZHA,
PALA P.O., KOTTAYAM DISTRICT.
2 ANU GOPINATHAN
AGED 34, W/O. SEBI VARGHESE,
VALLOORAN HOUSE, THIRUMUDIKKUNNU,
KORATTY P.O., THRISSUR DISTRICT.
3 SANTHAKUMARI
AGED 63, W/O. LATE GOPINATHAN NAIR,
UTHUMPARAYIL HOUSE, MURIKKUMPUZHA,
PALA P.O., KOTTAYAM DISTRICT.
BY ADVS.
SRI.C.C.THOMAS (SR.)
SRI.NIREESH MATHEW
SRI.N.P.PRAJEESH
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
(CRIME NO. 240/2017 OF PONKUNNAM POLICE STATION)
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI - 682 031.
2 SUSEELA DEVI
W/O. LATE MOHANDAS, DAS MAHAL,
KOPRAKKALAM, ELAMGALAM,
PONKUNNAM P.O., KOTTAYAM DISTRICT - 686 004.
Crl.MC.No.6565 OF 2017
2
BY ADV. SRI.C.S.AJITH PRAKASH
BY ADV. SRI.BIJITH S.KHAN
BY ADV. SRI.T.K.DEVARAJAN
BY ADV. SRI.A.TJOSE
BY ADV. SRI.PAUL C THOMAS
SRI.SANTHOSH PETER SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.10.2019, THE COURT ON 22-10-2019 PASSED THE FOLLOWING:
Crl.MC.No.6565 OF 2017
3
O R D E R
Accused Nos. 1 to 3 in C.C.No.487/2017 of Judicial First Class Magistrate Court II, Kanjirappilly arising from Crime No.240/2017 of Ponkunnam Police Station for offences punishable under Sections 406, 420, 498A, 294(b), 323 read with Section 34 IPC are the petitioners herein.
2. According to the prosecution, the 1st accused was working as a helper in an old age home at Australia. Suppressing it and posing as an MBA decree holder with degree in Hospital Administration, he married one Monisha, the daughter of the de facto complainant, on 01.09.2014. It was alleged that, before marriage he had misrepresented that for obtaining a visa to the wife, joint property in the ownership of both persons was mandatory. An item of property that stood in the name of the de facto complainant was got assigned to Monisha and the 1 st petitioner. Thereafter, 1st petitioner took Monisha to Australia. While they were living together as husband Crl.MC.No.6565 OF 2017 4 and wife, the 1st accused with the aid and support of accused Nos.2 and 3, who are sister and mother of the 1st accused, harassed her both physically and mentally in connection with demand for dowry. They demanded more dowry. It was alleged that this drove Monisha to commit suicide on 07.02.2017 at Australia. Later, a complaint was laid by the de facto complainant/mother alleging that Monisha was subjected to matrimonial cruelty, which had led to her suicide and that the accused have committed various offences. Crime was registered and after investigation, final report was laid against all the accused. Accused appeared before the court below and are facing trial.
3. Accused challenges the proceeding invoking Section 482 Cr.P.C. on various grounds. It was contended that the incident occurred outside India and that the 1st accused was an Australian citizen. No previous sanction as contemplated under Section 188 of the Code of criminal procedure was obtained and hence the prosecution was bad. It was contended that the Crl.MC.No.6565 OF 2017 5 ingredients under Sections 294(b), 406 & 420 IPC were not made out from the facts alleged. The ingredients of offence under Section 498A were also not made out. It was further contended that, as against accused Nos.2 and 3, there was absolutely no material to fasten any criminal liability on them.
4. It is an admitted fact that the 1st accused registered the marriage with the deceased Monisha on 01.09.2014. A formal ceremony of the marriage was also held in the temple on the same day. Thereafter, customary marriage was solemnized on 30.08.2015. Couple left to Australia on 07.09.2015. She died by hanging on 07.02.2017. A complaint was laid by the mother on 17.02.2017 and a further detailed complaint was submitted on 19.02.2017.
5. Assailing the prosecution, the learned Senior counsel for the petitioners contended that the prosecution was bad in the absence of sanction under Section 118 of the Indian Penal Code. It was pointed out that after the marriage, couple permanently resided Crl.MC.No.6565 OF 2017 6 at Australia. The death occurred at Australia. Hence, the cause of action in relation to the death did not arise in India. Relying on the citizenship certificate produced as Annexure 1, the learned Senior counsel further contended that the 1st petitioner was an Australian citizen and hence the prosecution will not lie against him.
6. It is pertinent to note that the offence alleged against the accused is not one under Section 306 IPC. The offences alleged are under Sections 406 & 420 IPC in relation to the alleged misrepresentation made at the time of marriage, getting the property assigned to the 1st accused along with Monisha and thereafter misappropriating it. There is a further allegation under section 498A that the accused had harassed the victim in connection with demand for dowry on various dates in Kerala and thereafter, which continued in Australia. Evidently, the starting point of the offences is at the time of marriage much before the parties left to Australia. It seems to be in the Crl.MC.No.6565 OF 2017 7 nature of a continued offence, which were initially committed in Kerala and continued thereafter. Annexure 1 shows that the first petitioner acquired citizenship only on 11.09.2017, which was much after the death of the victim. Evidently, the accused was an Australian citizen during the relevant period. Hence, I find no merit in the contention of the petitioners that the prosecution is not sustainable as against them in the absence of sanction under Section 188 of the Cr.P.C.
7. Regarding the allegation constituting offences under Sections 406 & 420 IPC, the crux of the allegation is that the 1st accused had misrepresented that he was holding an MBA degree in Hospital Administration. He informed that he is employed in a hospital. It turned out that he was not an MBA graduate and was working as a helper in an old age home. He further falsely represented that for the purpose of obtaining a visa, property in the joint name of the husband and wife was required and on the basis of the above misrepresentation, got the property Crl.MC.No.6565 OF 2017 8 transferred to his name along with the wife. It was not returned thereafter.
8. The learned Senior counsel for the accused invited my attention to the copy of marriage certificate produced as Annexure VIII and Annexure IX, the copy of title deed in relation to the property that was assigned jointly to the 1st accused and the wife. In both the documents, the status of the 1st accused is referred to as a male nurse. Hence, it is evident that at that time of marriage, his original nature of work was disclosed. Hence, it was contended that there is no basis in the contention of the de facto complainant that the accused misrepresented the facts. I feel that there is considerable force in the submission of the learned Senior counsel on that.
9. It is pertinent to note that the property was assigned in the joint name of the husband and wife. Even assuming that a false statement was made that the property has to be assigned jointly in the name of the husband and wife for obtaining a visa to the wife, it Crl.MC.No.6565 OF 2017 9 cannot constitute an offence under Section 406 or under Section 420 IPC. There is no specific averments in the petition that the 1st accused had a mala fide intention to cheat while making misrepresentation and to commit the offence. In the absence of any such ingredients, I feel that the offences under Sections 406 and 420 IPC are prima facie not attracted.
10. Regarding the ingredients of Section 498A, the learned counsel for the de facto complainant invited my attention to the complaint dated 17.02.2017 as well as the complaint dated 19.02.2017. In the first complaint, it was alleged that the 1 st accused used to physically and mentally harass Monisha. She had conveyed it to the de facto complainant. It was also asserted by her that few days prior to the death of Monisha, the 1st accused had demanded ₹15,00,000/-. It was further stated that one day, the victim called the de facto complainant and had cried, stating that the 1st accused had physically harassed her. The de facto complainant has a further allegation that the 1 st Crl.MC.No.6565 OF 2017 10 accused had spread rumours that she was mentally sick. According to the petitioners, on the date of death, the victim had called her mother and found her to be happy. In the second complaint, the earlier allegations were reiterated. There is a further averment that the accused had stated that the victim may go and die. It was further stated that the 1 st accused had demanded ₹3,00,000/- when they came during onam holidays. There is a specific allegation that the death was due to physical and mental harassment committed by the 1st accused along with accused Nos.2 and 3.
11. CW1 mother has given a statement touching upon the various allegations. The Investigating Officer has questioned CW2 to CW11. It emerges that CW1 has a direct information which is supported to a limited extent by the version of CW2 to CW5, who have limited role regarding the allegation. A perusal of the above materials on record indicate that CW1, both in her statement as well as in the complaint, had specifically referred to the few incidents of Crl.MC.No.6565 OF 2017 11 harassment. The complaint was laid immediately after the death was reported. Hence, I feel that there was sufficient materials to prosecute the offence under Section 498A, which has definitely to stand the test of trial. I do not feel that quashing of the proceedings under Section 498A is warranted at least against the 1st accused.
12. It is evident that there is no serious allegation against accused Nos.2 and 3. CW1 in her version had raised only vague allegations against accused Nos.2 and 3. No such allegations are seen raised in the complaint. Even the allegations made against accused Nos.2 and 3 are only general in nature. Having considered this, I am satisfied that sufficient factual grounds for ordering trial of accused Nos.2 and 3 are not made out. Hence, the prosecution as against them is liable to be quashed.
13. In the light of the above facts, I find that the only materials are available in relation to the offences under Sections 294(b), 323, 498A as against Crl.MC.No.6565 OF 2017 12 the 1st accused. The ingredients under Sections 406, 420 and 498A are not made out against accused Nos.2 and
3. Consequently, I am inclined to quash the entire proceedings as against accused Nos.2 and 3 and also the proceedings against the 1st accused, for offences under Sections 406 & 420 IPC.
In the result, Crl.M.C. is allowed in part. The prosecution as against accused Nos.2 and 3 stands quashed. The prosecution against the first accused in relation to offences under Sections 406 and 420 IPC is quashed. Prosecution shall proceed against the 1st accused for offences punishable under Sections 294(b), 323 and 498A of IPC.
Sd/-
SUNIL THOMAS, JUDGE Pn Crl.MC.No.6565 OF 2017 13 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE CERTIFICATE OF AUSTRALIAN CITIZENSHIP ACQUIRED BY THE FIRST PETITIONER ISSUED BY THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION OF THE COMMONWEALTH OF AUSTRALIA DATED 11.09.2017.
ANNEXURE II TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGER, ARCARE CARNEGIE DATED 07.03.2017.
ANNEXURE III TRUE COPY OF STATEMENT FILED BY THE INVESTIGATOR MATT ANDERSON INTO THE UNNATURAL DEATH OF MONISHA MOHANDAS, WIFE OF THE FIRST PETITIONER DATED 20.06.2017.
ANNEXURE IV TRUE COPY OF CORONIAL INVESTIGATION BRIEF SUBMITTED TO THE CORONERS COURT OF VICTORIA AND THE LETTER SENT BY THE CORONERS COURT OF VICTORIA TO THE 1ST PETITIONER DATED 18.08.2017.
ANNEXURE V TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT DEFACTO COMPLAINANT BEFORE THE S.P. OF POLICE, KOTTAYAM DATED 17.02.2017. ANNEXURE VI TRUE COPY OF THE COMPLAINT DATED 19.02.2017 SUBMITTED BEFORE THE SUPERINTENDENT OF POLICE, KOTTAYAM BY THE 2ND RESPONDENT. ANNEXURE VII THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 240/17 OF PONKUNNAM POLICE STATION FILED BEFORE THE JFCM COURT-II, KANJIRAPPILLY DATED 14.06.2017.
ANNEXURE VIII TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE PALA MUNICIPALITY DATED 04.09.2014.
ANNEXURE IX TRUE COPY OF THE SALE DEED EXECUTED BY THE DEFACTO COMPLAINANT IN FAVOUR OF THE FIRST PETITIONER AND HIS WIFE MONISHA DATED 17.09.2014.
Crl.MC.No.6565 OF 2017 14 RESPONDENTS' EXHIBITS ANNEXURE R2(A) A TRUE COPY OF THE FINAL REPORT IN CRIME 240/2017 DATED 20.02.2017 OF KANJIRAPPILLY SHO.
ANNEXURE R2(B) A COPY OF THE E-MAIL MESSAGE DATED 15TH FEBRUARY 2017 FROM HARIKRISHNAN TO GRAHAM ASTON (VICTORIA POLICE CHIEF COMMISSIONER, AUSTRALIA) ANNEXURE R2(C) A COPY OF THE E-MAIL MESSAGE DATED 22ND FEBRUARY 2017 FROM THE RESPONDENT'S NEPHEW HARI KRISHNAN, CW4 ADDRESSED TO MATT ANDERSON (LEAD CONSTABLE CLAYTON POLICE STATION) ANNEXURE R2(D) A TRUE COPY OF THE BANK STATEMENT OF THE 2ND RESPONDENT FOR THE PERIOD FROM 16.01.2016 TO 07.03.2018.
ANNEXURE R2(E) A TRUE COPY OF THE CERTIFICATE ISSUED BY THE SOUTH INDIAN BANK DATED 07.03.2018 TO THE 2ND RESPONDENT.