Delhi District Court
Smt. Madhu Malhotra vs State (Nct Of Delhi) on 15 March, 2018
Crl. Revision No. 478/2017
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Revision No.478/2017
CNR No.DLWT010091432017
In re:
Smt. Madhu Malhotra,
W/o late Sh. Ram Narayan Malhotra,
R/o House No. A147, Second Floor,
Main Road, Savita Vihar, Yozana Vihar,
Delhi110092. .........Revisionist
Versus
State (NCT of Delhi). ........Respondent
Date of filing of revision petition : 09.10.2017
Date on which arguments were heard : 27.02.2018
Date of pronouncement of judgment : 15.03.2018
JUDGMENT:
1. This revision petition is directed against the order dated 02.08.2017 passed by the Ld. MM (Mahila Court03), West in State case arising out of FIR No.264/2011 under Section 498A/406/34 IPC registered at P.S. Moti Nagar whereby the application under Section 239 Cr. P. C. preferred by the Madhu Malhotra v. State Page No. 1/ 11 Crl. Revision No. 478/2017 revisionist seeking discharge was dismissed and charge for the offences punishable under Section 498A/406/34 IPC was directed to be framed against her and his son (i.e. the co accused).
2. Brief facts relevant for the disposal of the revision petition are that the revisionist is the mother in law of the complainant Smt. Jyoti Malhotra. The above mentioned FIR was registered against her and her family members on the complaint lodged by the complainant on 13.07.2011. During the course of investigation, the husband of the revisionist expired on 10.11.2017. After the completion of investigation, Police filed the charge sheet against the son of the revisionist only. She and her other family members had been kept in column no.12 as suspects. However, on 26.07.2013, the trial court took the cognizance and summoned the revisionist as well.
3. While passing the impugned order, the trial court found prima facie case for framing charges for the offences under Section 498A/406/34 IPC against the revisionist and her son. Hence, the application under Section 239 Cr. P. C. seeking discharge was dismissed and the charges as per the impugned order were framed against the revisionist and her son on 02.08.2017.
Madhu Malhotra v. State Page No. 2/ 11 Crl. Revision No. 478/2017Aggrieved therefrom, the revisionist is before this court.
4. The impugned order has been assailed by the counsel for the revisionist on the ground that the trial court erred in dismissing the application for discharge and failed to appreciate that the allegations of cruelty levelled by the complainant are general and vague in nature and no specific date or incident of the alleged cruelties had been revealed. He argued that since the investigating agency also could not collect any documentary evidence such as any prior complaint of harassment or MLC of the complainant in order to corroborate the allegations levelled in the complaint, the trial court ought to have discharged the revisionist. He submitted that the allegations levelled in the complaint are merely indicative of usual wear and tear of the matrimonial life and taunts for bringing substandard quality of dowry articles or asking the complainant to do the household work do not constitute cruelty/harassment within the ambit of Section 498A IPC. He argued that the trial court also fell in error in framing charge for the offence under Section 406 IPC against the revisionist as the complainant had levelled sweeping allegations against the revisionist and her family members without disclosing the date and occasion on which the istridhan/dowry articles were entrusted to them. He submitted Madhu Malhotra v. State Page No. 3/ 11 Crl. Revision No. 478/2017 that for failure of the complainant to disclose the purpose for which the dowry articles were allegedly taken from her and the manner in which same were converted to their own use by the revisionist and her family members, the charge for the offence under Section 406 IPC could not have been framed. The counsel for the revisionist urged that the falsity of the allegations levelled in the complaint was evident from the fact that despite a lengthy list of articles submitted by the complainant, nothing could be recovered from the possession of the revisionist during the course of investigation. On the basis of the above submissions, it has been sought that the order dated 02.08.2017 be set aside and the revisionist be discharged of the offences under Section 498A/406/34 IPC.
5. On the other hand, Ld. APP for State, assisted by the counsel for the complainant, submitted that there are specific allegations of harassment in connection with the demand of dowry as well as misappropriation of istridhan against the revisionist and that based upon the proper appreciation of facts and circumstances of the case, the trial court rightly ordered for framing of charges against him. It was argued that since there is no illegality or infirmity in the impugned order, the revision petition is liable to be dismissed.
Madhu Malhotra v. State Page No. 4/ 11 Crl. Revision No. 478/20176. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. Even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of commission of that offence.
In Union of India v. Prafulla Kumar Samal AIR 1979 SC 366, the Hon'ble Apex Court laid down the following principles to be kept in mind while considering the aspect of charge:
(i) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;Madhu Malhotra v. State Page No. 5/ 11 Crl. Revision No. 478/2017
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
(iii) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; and
(iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a PostOffice or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
7. Before going into the factual aspect of the case, it would be appropriate to note the essential ingredients of Sections 498A & 406 IPC.
According to Section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction Madhu Malhotra v. State Page No. 6/ 11 Crl. Revision No. 478/2017 of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person to do so. Thus in the commission of offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
The terms cruelty, which has been made punishable under Section 498A IPC has been defined in the Explanation appended to the said Section, to mean: (i) 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 (ii) 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 any person related to her to meet such demand. Therefore, the consequences of cruelty, which are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or Madhu Malhotra v. State Page No. 7/ 11 Crl. Revision No. 478/2017 physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand are required to be established in order to bring home an offence under Section 498A IPC.
8. Upon testing the First Information Report, statements recorded under Section 161 CrPC and other material on record on the touchstone of the principles laid down by the Superior Courts, there can be no doubt that there exist the grounds to presume that the revisionist has committed the offences under Section 498A/406/34 of Indian Penal Code. At this stage, the case of the prosecution can not be thrown out by disbelieving the allegations levelled by the complainant. From a bare reading of the complaint lodged by the complainant, which is the foundation of the case, it is seen that there are clear and specific accusations against the revisionist. Some of the specific incidents narrated by the complainant are that on the very first night after the marriage, the revisionist and her family members harassed the complainant for not bringing car, air conditioner and a double door fridge in the marriage and took away all the shagun envelops which the complainant got from the relatives as well as the jewellery articles received by her from her parents Madhu Malhotra v. State Page No. 8/ 11 Crl. Revision No. 478/2017 on the pretext of keeping them in safe custody but did not return the same irrespective of demands made to them from time to time; that after few days of marriage when her father and brother visited her matrimonial home, the revisionist and her family members raised their demand of car, air conditioner & double door fridge and after they had left, the son of revisionist gave beatings to the complainant on the instigation of the revisionist and her family members; that on the eve of first Holi after the marriage in month of March, 2001, when the complainant expressed the inability of her father to meet the demand of Rs.50,000/, clothes and sweets, the revisionist alongwith her husband and son caught hold of the complainant with hair and gave severe beatings to her; that at the time of birth of the son and the daughter of the complainant on 06.12.2001 and 05.06.2004 respectively, the father and the brother of the complainant gave gifts, jewellery and other articles to her but the same were also taken away by the revisionist and her son and were not returned despite demands; that the revisionist and her son did not provide proper food and medication to the complainant during her pregnancies despite the medical advise; that the revisionist and her family members used to turn the complainant out of the matrimonial home in order to compel her to meet their illegal demands of dowry. The Madhu Malhotra v. State Page No. 9/ 11 Crl. Revision No. 478/2017 complainant has specifically mentioned the dates on which she was turned out of the matrimonial home i.e. firstly on 18.11.2005, then on 15.03.2006, then in September, 2006, then on 21.03.2007 and again on 24.08.2008. She has alleged that she was finally turned out of the matrimonial home on 05.08.2009 after being subjected to physical abuse. In respect of the above, different DDs had been lodged at P.S Anand Vihar. A perusal of the trial court record shows that copies of DD No.25A dated 19.11.2005, DD No.27A dated 21.03.2007, 73B dated 05.08.2009 and 7B dated 06.08.2009 recorded at the instance of the complainant have been made part of the charge sheet. In view of the above specific allegations and the documents, the trial court rightly formed the opinion that prima facie case was made out for framing charge for the commission of offence under Section 498A IPC against the revisionist.
9. As far as the contention of the counsel for the revisionist that there is no corroboration of the allegations levelled in the complaint by the statement of any witness from the neighbourhood is concerned, it has to borne in mind in the cases of such nature, the acts of cruelty are invariably committed within the four corners of the house and thus, eye witnesses to such incidents are not easily available.
Madhu Malhotra v. State Page No. 10/ 11 Crl. Revision No. 478/201710. Qua the offence under Section 406 IPC, it is pertinent to observe that the complainant has specifically alleged that her dowry articles/istridhan had been taken away by the revisionist and her son immediately after the marriage as well as at the time of birth of her children on the pretext of keeping them in safe custody and that they had failed to return the same despite repeated demands. At this stage, the above allegations are sufficient for framing charge for the offence under Section 406 IPC against the revisionist. Needless to say, the manner in which the dowry articles/istridhan had been converted to their own use by the revisionist was not required to be disclosed by the complainant so as to attract Section 406 IPC.
11. In the light of above discussion, I find no infirmity in the order dated 02.08.2017 passed by the Ld. MM. The revision petition is without merits and is, accordingly, dismissed. File of revision petition be consigned to record room.
Digitally signed SMITA by SMITA GARG Date: GARG 2018.03.15 16:13:34 +0530 Announced in the open court (Smita Garg) on 15.03.2018 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi. Madhu Malhotra v. State Page No. 11/ 11