Rajasthan High Court - Jaipur
Yash Sharma And Ors vs Mohan Dev Sharma And Anr on 23 January, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. PETITION NO.3741/2012 (Yash Sharma & Ors. Vs. Mohan Dev Sharma & Anr.) Date: 23.01.2013 Reportable HONBLE MR. JUSTICE R.S. CHAUHAN Mr. Kamlakar Sharma, Sr. Adv. assisted by Ms. Alankrita Sharma & Mr. Sunil Jain, for the petitioners.
Mr. Sameer Jain & Mr. Sudhir Jain, for respondent No.1.
Mr. Javed Choudhary, PP for the State.
The petitioners have prayed for quashing of the FIR No.340/12, registered at Police Station Gandhi Nagar, Jaipur for offences under Sections 420, 406, 120B IPC and under Sections 3 & 4 of the Dowry Prohibition Act, 1961.
The brief facts of the case are that on 10.9.2012, the complainant-respondent No.1, Mohan Dev Sharma, filed a criminal complaint against the accused-petitioners for offences under Sections 420, 406 & 120B IPC and Sections 3 & 4 of the Dowry Prohibition Act before the Additional Chief Judicial Magistrate No.2, Jaipur Metropolitan, Jaipur. He claimed that after formal meetings between the complainant and the accused petitioners, the marriage of his daughter, Ms. Shilpa and Mr. Yash Sharma, the accused petitioner No.1, was settled in June, 2011. The marriage was to be solemnized on 27.1.2012 at Indore. For the purpose of expenses regarding arrangements for marriage, the complainant had given four cheques amounting to Rs.4,20,000/- to the accused petitioners. He further gave a sum of Rs.2,80,000/- to the accused-petitioners. It was further averred that on 21.10.2011 and 25.10.2011 cash amount of Rs.5 Lacs each (totaling Rs.10 Lacs) was given to one Mr. Arvind and Mr. Bharat, who were the employees of Mr. Punit Mittal, one of the accused persons. Mr. Punit Mittal is known to accused petitioner No.2. Besides the cash amount, other articles, worth Lacs of rupees, were also given to the accused petitioners and a huge amount was incurred on other arrangements for the marriage. But, the accused petitioners kept on demanding more money and a car and other articles in the marriage. When the complainant showed his inability to fulfill the heavy demands of dowry of the accused-petitioners, they broke the engagement. It was further averred that out of the total cash amount and articles given to the accused-petitioners, still Rs.9,80,000/- have been kept by the petitioners. They have not return the said amount to the complainant despite his request. Hence, the offences under Sections 420, 406, 120B IPC were alleged against the petitioners.
The learned Magistrate sent the complaint for further investigation to the Police under Section 156(3) Cr.P.C. Thereafter, on 12.9.2012, a formal FIR, namely FIR No.340/12, was registered at Police Station Gandhi Nagar, Jaipur for the aforesaid offences against the accused persons. Hence, this petition for quashing of the said FIR.
Mr. Kamlakar Sharma, the learned senior counsel for the petitioners, has raised the following contentions before this court: firstly, the engagement between Yash Sharma, petitioner No.1, and daughter of the complainant-respondent No.1 Mohan Dev Sharma, namely Ms. Shilpa, was broken in December, 2011. According to the complainant, part of the money, given by him, and other articles were returned to him by the petitioners. However, the FIR was not lodged till September, 2012. Thus, there is an inordinate delay of nine months. The delay has not been explained by the complainant. The delay casts doubt on the veracity of the allegations made by the complainant.
Secondly, that according to the complainant himself, on 21.10.2011, Rs.5 Lacs in cash were paid by him to one Mr. Arvind and one Mr. Bharat. Both of these persons happen to be the employees of Mr. Punit Mittal. Even subsequently, the complainant alleges that he has paid another Rs.5 Lacs on 25.10.2011 to these two persons. However, Mr. Arvind and Mr. Bharat have not been arrayed as accused persons by the complainant. Moreover, although Mr. Punit Mittal has been arrayed as an accused by the complainant, but the petitioners do not have any relationship with him.
Thirdly, since the money was paid by the complainant to the petitioners in order to make the marriage arrangements, as the marriage was scheduled to take place in Indore, the entrustment of the amount was only to one person and not to all the three accused persons. Moreover, the amount was never entrusted to the Yash Sharma, the petitioner No.1, as he was the prospective bridegroom. According to the learned counsel, the prospective bridegroom has nothing to do with making the marriage arrangements. The arrangements are generally made by other family members. Therefore, the element of entrustment to the petitioners No.1 and 3 is conspicuously missing. Moreover, according to the complainant, he had entrusted Rs.10 Lacs to Mr. Arvind and Mr. Bharat. Thus, the entrustment of the money was to them, and not even to the petitioner No.2. Since there was no entrustment to any of the three petitioner, obviously, the offence under Section 406 IPC does not exist.
Fourthly, in order to prove the intention to cheat and to induce by offering an allurement, relying on the case of Murari Lal Gupta Vs. Gopi Singh [2005(13) SCC 699], the learned senior counsel has contended that the prosecution must show that the intention to cheat existed from very initial stage. Since the parties were engaged in marriage negotiations, it can hardly be imagined that there was an intention to cheat, or to induce the complainant to part with his property. Hence, the ingredients of Section 420 IPC are also conspicuously missing in this case.
Fifthly, that according to the complainant, he had given money to the petitioners so that the marriage arrangements could be made at Indore. Meeting of marriage expenses would not fall within the definition of dowry under the Dowry Prohibition Act. Therefore, the ingredients for offences under Sections 3 and 4 of the Act are not made out.
Sixthly, relying on the case of Geeta Mehrotra & Anr. Vs. State of U.P. & Anr., Criminal Appeal No.1674 of 2012 (Arising out of SLP (Crl.) No.1547/2010 decided on 17th October, 2012 by the Apex Court), the learned senior counsel has contended that where only vague allegations have been made in the FIR, the FIR deserves to be quashed.
Seventhly, relying on the case of State of Kerala Vs. P. Sugathan [2000(4) RCR (Criminal) 369], the learned senior counsel has contended that there is no evidence to show the existence of a conspiracy between the petitioners for committing the offence u/s. 420 and 406 IPC. Simultaneously, relying on the case of Vijayan @ Rajan Etc. Vs. State of Kerala [1999(1) JCC (SC) 177], the learned senior counsel has contended that there is neither any direct nor, circumstantial evidence to show the commission of offence under Section 120B IPC. Therefore, according to him, the FIR deserves to be quashed and set aside.
On the other hand, Mr. Sameer Jain and Mr. Sudhir Jain, the learned counsel for complainant-respondent No.1, have vehemently raised the following contentions before this court: firstly, that the jurisdiction of this court is extremely limited while interfering in a FIR at the initial stage. According to the learned counsel, repeatedly the Honble Supreme Court has cautioned the High Courts from interfering with investigation, as investigation happens to be the domain of the Police. Moreover, the Apex Court is of the opinion that while dealing with a FIR, the contents of the FIR should be taken at its face value and as unrebutted facts. In case the ingredients of the offence are made out, then the FIR should not be interfered with.
Secondly, that both the parties were engaged in a negotiation for marriage of the complainants daughter to Yash Sharma. A proposal had been made, and proposal had been accepted, and the parties were engaged in making the arrangements. Thus, there was an inducement from the petitioner's side that they are willing to marry their son, the petitioner No.1, to the complainant's daughter. The proposal was not only an inducement, but was an allurement to get money out of the complainant. It is with this proposal in mind, with the promise made by the petitioners, that the complainant had parted with his property and had given not only cheques, but also cash and other articles.
Thirdly, that according to the complainant, petitioner No.2 had called-up the complainant and instructed him to give Rs.10 Lacs to Mr. Punit Mittal who happens to be a relative of the petitioner No.2. It is upon his instruction that Rs.5 Lacs each were delivered to Mr. Arvind and Mr. Bharat, the employees of Mr. Punit Mittal, on two different occasions. Mr. Punit Mittal has already been arrayed as accused in the present FIR.
Fourthly, the complainant has already given the telephone numbers of the accused persons to the Police. It is a matter of investigation for the police to seek the call details to see if the calls were made on the relevant dates. For, according to the complainant, he had received information that the money has been handed over to Mr. Punit Mittal.
Fifthly, although, the money may have been entrusted to Mr. Arvind and Mr. Bharat, but the entrustment was made at the behest of the petitioner No.2. Thus, there is constructive entrustment to petitioner No.2. Further, the petitioners have also entered into a criminal conspiracy. Therefore, the offences against them under Sections 406 and 120B IPC are clearly made out.
Sixthly, until and unless the investigation is carried out, it would be too early for this court to conclude that the elements of offence under Sections 406 or 420 IPC are not made out.
Seventhly, whether there was an intention to cheat the complainant from the very initial stage, whether the offence under Sections 3 and 4 of the Dowry Prohibition Act have been committed or not, again is a matter of investigation. Therefore, a free hand should be given to the Police to investigate the case thoroughly.
Heard the learned counsel for the parties and perused the FIR and the case laws cited at the Bar.
It is, indeed, trite to state that the jurisdiction of this court in quashment of FIR under its inherent jurisdiction is an extremely limited one. In the case of State of Haryana Vs. Bhajan Lal [1992 Suppl.(1) SCC 335], the Apex Court has laid down eight circumstances under which this court would be permitted to interfere with an FIR. However, repeatedly in catena of cases, the Honble Supreme Court has opined that the investigation is the arena of the Police: the High Courts should be weary of entering into the said area. It has also warned the High Courts not to interfere with the investigation at the initial stage, until and unless the case is brought under one of the eight circumstances mentioned in the case of Bhajan Lal (supra). Moreover, the Hon'ble Supreme Court has opined that the allegations made in the FIR should be taken on its face value as unrebutted facts. In case the ingredients of the offences mentioned in the FIR are present on the basis of allegations made by the complainant, then the High Court should desist from quashing the FIR.
The issue as to the impact of delay in lodging the FIR is an issue that this court cannot go into at this juncture. The consequence of the delay in lodging of the FIR is, obviously, an issue to be tried and adjudicated upon by the trial court. Merely because a FIR has been delayed, the court cannot presume that the story is a tainted one. Therefore, the first contention raised by the learned senior counsel for the petitioners that the delay in lodging the FIR casts doubt on the veracity of the story cannot be accepted at this juncture. The defence of delay is available to the petitioners. But the said defence cannot be entertained by this court at the initial stage.
Although, it is true that so far Mr. Arvind and Mr. Bharat have not been arrayed as accused, but the fact remains that according to the complainant, he was directed to handover Rs.10 Lacs to Mr. Punit Mittal who is a relative of petitioner No.2 and who has been arrayed as an accused. According to the complainant, Mr. Arvind and Mr. Bharat happen to be Mr. Mittal's employees. According to him, upon instructions issued by the petitioner No.2, he had handed the money over to Mr. Punit Mittals employees. The allegation against the petitioners is not only of Section 406 IPC simplicitor, but, more particularly, of offence under Section 406 read with Section 120B IPC. Therefore, even if the money were entrusted physically to Mr. Arvind and Mr. Bharat on behalf of Mr. Punit Mittal, the element of conspiracy, thus, exists. Whether there is direct evidence or circumstantial evidence to prove the existence of the offence under Section 120B IPC is naturally a matter of investigation. Therefore, the contention that the entrustment can only be made to one person and could not have been made to petitioners No.1 and 3 is unacceptable at this moment. After all, petitioners No.1 and 3 are accused of having entered into a conspiracy for the sake of committing an offence under Section 406 IPC.
Whether the intention to cheat existed from the very beginning, or developed later on, or whether there was no intention to cheat whatsoever, are again matters of investigation to be carried out by the Police. The judgments relied upon by the learned senior counsel for the petitioners are distinguishable on their factual matrix. Therefore, these judgments do not rush to the rescue of the petitioners. But, considering the fact that according to the complainant there was a negotiation of marriage, considering the fact that he had parted with ten lacs of rupees out of which he claims that Rs.9,80,000/- are still owed to him, prima facie, the offence under Section 420 IPC is made out.
The issue whether the payment of expenses would fall and would contain the ingredients of offence under Sections 3 and 4 of the Dowry Prohibition Act is again a matter of investigation. Therefore, this court would not like to interfere with the FIR at the very initial stage.
However, whatever observations may have been made by this court, they should neither influence the mind of the Investigating Officer, nor influence the direction of the investigation. Moreover, these observations should not influence the mind of the trial court, in case the chargesheet were to be filed. These observations are made by this court only for the purpose of adjudicating and deciding the issue whether the FIR should be quashed or not at this juncture under the inherent jurisdiction of the court. Most importantly, this court does expect the Investigating Officer to carryout a fair and impartial investigation. He is bound to not only consider the case of the complainant, but equally bound to consider the case of the petitioners before deciding whether to file a chargesheet, or to file a negative Final Report. Therefore, any observations made by this court should be treated as irrelevant for making the final decision by the Investigating Officer.
However, as this court does not find any merit in this petition, it is hereby dismissed. The stay application is also dismissed.
(R.S. CHAUHAN), J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA