Telangana High Court
A.Ravi vs The State Of Telangana on 8 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.1245 of 2020
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 to 5 to quash C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad the cognizance of which has been taken for the offences under Sections 406, 420, 498-A, 506 read with Section 120-B of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act.
2. The facts in brief as can be seen from the charge sheet are as under:
a) Respondent No.2 - de-facto complainant has filed a private complaint before the IX Additional Metropolitan Magistrate, Nampally at Hyderabad alleging that petitioner No.1-accused No.1 has developed friendship with her and both of them fell in love with each other and decided to marry and both of them went to Tirupathi and married each other on 10.11.2008. A complaint was filed in the Police Station about girl (respondent No.2-de-facto complainant) missing and Police have traced respondent No.2-de-facto complainant and 2 petitioner No.1-accused No.1 and produced them before the elders, cases were withdrawn and both the families have compromised and allowed the respondent No.2-de-facto complainant and petitioner No.1-accused No.1 to lead their marital life. The family of petitioner-accused No.1 have demanded Rs.1 lakh and 10 thulas of gold and other household articles and all of them were given to them by the family of the respondent No.2-de-facto complainant.
b) The petitioner-accused No.1 is the software engineer and was shifted to Pune along with respondent No.2-de-facto complainant. During their wedlock, the respondent No.2-de- facto complainant was blessed with a daughter (Sahithi) on 13.05.2010. When first birth day of their daughter Sahithi was celebrated at the house of petitioner Nos.3 and 4 - accused Nos.3 and 4, who are the parents of petitioner No.1-accused No.1 at Nalgonda, Police came to their house stating that a case has been registered against the petitioner No.1-accused No.1 and their family members for the offence under Sections 498-A and 494 of the Indian Penal Code on a complaint given by petitioner No.2-accused No.2, who is the first wife of petitioner No.1-accused No.1.
3
c) Petitioner No.1-accused No.1 has never informed that he is already married with petitioner No.2-accused No.2. However, the case filed by the petitioner No.2-accused No.2 against the petitioner No.1-accused No.1 and his family members was settled and compromised before the Lok Adalath on 07.09.2011. However, divorce was not taken by petitioner No.1-accused No.1 from petitioner No.2-accused No.2. Subsequently, the petitioner No.1-accused No.1 shifted to Bangalore on transfer of petitioner No.1-accused No.1, wherein petitioner No.1-accused No.1 started demanding respondent No.2-de-facto complainant to bring additional dowry and on her failure to get additional dowry, the petitioner No.1-accused No.1 started harassing the respondent No.2-de-facto complainant mentally and physically.
d) Petitioner No.5-Accused No.5, who is the brother of petitioner No.1-accused No.1 used to visit the house of respondent No.2-de-facto complainant frequently and he used to instigate his brother i.e., petitioner No.1-accused No.1 and on such instigation petitioner No.1-accused No.1 used to harass the respondent No.2-de-facto complainant. Petitioner No.5- accused No.5 also used to abuse the respondent No.2-de-facto complainant in filthy language. The respondent No.2-de-facto 4 complainant has not informed anything to her parents on a hope that the accused persons would change their attitude.
e) Petitioner No.1-accused No.1 and respondent No.2-de- facto complainant along with their daughter went to the house of petitioner Nos.3 to 5 - accused Nos.3 to 5 but they have not changed their attitude and have started passing sarcastic remarks against the respondent No.2-de-facto complainant and instigating petitioner No.1-accused No.1 and on such instigation petitioner No.1-accused No.1 used to harass the respondent No.2-de-facto complainant physically and mentally. All the accused have demanded Rs.5 lakhs as additional dowry. However, with great difficulty, the parents of respondent No.2- de-facto complainant have paid Rs.60,000/- as additional dowry and requested petitioner No.1-accused No.1 not to harass their daughter.
f) Petitioner No.1-accused No.1 started not giving proper food to respondent No.2-de-facto complainant including basic amenities and when the respondent No.2-de-facto complainant has questioned the petitioner No.1-accused No.1 about his attitude, he stated that she has to work like a maid servant. Petitioner Nos.3 to 5- accused Nos.3 to 5 used to make phone 5 calls to petitioner No.1-accused No.1 to harass the respondent No.2-de-facto complainant.
g) Petitioner No.1-accused No.1 was transferred to Hyderabad in the month of July, 2012 and all of them have shifted to Hyderabad and after coming to Hyderabad, harassment has increased and petitioner Nos.3 to 5- accused Nos.3 to 5 used to visit their house and harassed the respondent No.2-de-facto complainant physically and mentally and also instigated petitioner No.1-accused No.1. In the month of August, 2012, petitioner No.1-accused No.1 picked up quarrel with respondent No.2-de-facto complainant, abused her in filthy language, beat her mercilessly and petitioner Nos.3 to 5- accused Nos.3 to 5 and ultimately petitioner No.1-accused No.1 has necked the respondent No.2-de-facto complainant out of their house while demanding Rs.5 lakhs as additional dowry. Petitioner Nos.3 to 5- accused Nos.3 to 5 have also demanded respondent No.2-de-facto complainant bring additional dowry. Finally the respondent No.2-de-facto complainant has filed private complaint before the Magistrate concerned.
h) The private complaint filed by the respondent No.2-de- facto complainant was referred to Police concerned under 6 Section 156 (3) of the Code of Criminal Procedure on which the Police have registered the same as a case in Crime No.338 of 2013 and issued FIR. On completion of investigation, the Police concerned have filed charge sheet, the cognizance of which was taken as C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad for the offences under Sections 406, 420, 498-A, 506 read with Section 120-B of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act. Aggrieved by the same, the petitioners have filed the present criminal petition to quash the proceedings against them in C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad on the following grounds:
i) The respondent No.2-de-facto complainant is none other than the first petitioner's father's sister's daughter (daughter of first petitioner's maternal aunt), therefore, there is close relationship between the petitioner No.1-accused No.1 and the respondent No.2-de-facto complainant.
ii) The respondent No.2-de-facto complainant is aware that the marriage of petitioner No.1-accused No.1 with petitioner No.2-accused No.2 on 13.05.2004. Even after subsisting of first 7 marriage, the respondent No.2-de-facto complainant has married petitioner No.1-accused No.1 in Thirupathi.
iii) After disputes arose between the respondent No.2-de-
facto complainant and petitioner No.1-accused No.1, the respondent No.2-de-facto complainant has filed M.C.No.58 of 2014 seeking maintenance to her and her daughter. After full- fledged enquiry, the petition was allowed partly declining for granting maintenance to respondent No.2-de-facto complainant stating that she is not the legally wedded wife of first petitioner as marriage of first petitioner with second petitioner is still subsisting as divorce was not taken.
iv) The petitioner No.1-accused No.1 is working as software engineer working under various places and the petitioner Nos.3 to 5 - accused Nos.3 to 5 were not at all living with them and they have not involved in any of the offences alleged against them and they used to reside in Nalgonda and other places.
4. Now the point for determination is:
"Whether the proceedings against the petitioners-accused Nos.1 to 5 in C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad, can be 8 quashed under Section 482 of the Code of Criminal Procedure?
5. Heard Sri A.Sudershan Reddy, learned senior counsel representing Sri G.Madhusudhan Reddy, learned counsel for the petitioners and Sri B.Seshu Kumar, learned counsel for the respondent No.2.
6. On perusal of the order dated 23.04.2019 in M.C.No.58 of 2014 filed by the petitioners, it is clear that the learned XXIII Additional Chief Metropolitan Magistrate, Hyderabad has declined to grant maintenance to respondent No.2-de-facto complainant holding that she is not legally wedded wife and as the marriage, which was performed on 13.05.2004 between the first petitioner and second petitioner is subsisting. The observations and findings of learned Magistrate in M.C.No.58 of 2014 have also become final. The respondent No.2-de-facto complainant has not filed any document to show that the marriage between the first petitioner and second petitioner was dissolved and thereby she is the legally wedded wife of the respondent No.2-de-facto complainant. In any case, as per the record available before the court, the respondent No.2-de-facto complainant is not legally wedded wife of first petitioner and thereby the offences alleged against all the accused under 9 Sections 498-A of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act are not at all applicable. Therefore, the proceedings against the petitioners in C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad for the offences under Sections 498-A of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act cannot be proceeded.
7. The other offences alleged against the petitioners is for the offences under Sections 420 and 406 of the Indian Penal Code. In Vijay Kumar Ghai and others vs. The State of West Bengal and others1 the Hon'ble Supreme Court held at paragraphs 31 to 36 as under with regard to the ingredients of Section 420 of the Indian Penal Code:
"31. Section 415 IPC defines "cheating" which reads as under:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."1
(2022) 7 SCC 124 10 The essential ingredients of the offence of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person--
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines "cheating and dishonestly inducing delivery of property" which reads as under:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."11
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement.
Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person
was false.
(ii)The accused had prior knowledge that
the representation he
made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the
person to deliver the property or
to perform or to abstain from any act
which the person would have not done or
had otherwise committed.
36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and 12
(ii) the person cheated must be dishonestly induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC."
8. In view of the above, in order to prove the offence under Section 420 of the Indian Penal Code, it is to be alleged by the respondent No.2-de-facto complainant that petitioner No.1 has induced her and thereby on account of such inducement, she has parted with property or valuable security and the respondent No.2-de-facto complainant is also expected to prove that such inducement was done by the petitioners from the inception. In order to connect the above ingredients of section 420 of the Indian Penal Code to the facts of the case, the intention of the respondent No.2-de-facto complainant perhaps petitioner No.1-accused No.1 has concealed the first marriage with petitioner No.2-accused No.2 and without informing about his earlier marriage and he has married respondent No.2-de- facto complainant stealthily.
9. The contents of complaint would give an impression as if the respondent No.2-de-facto complainant came to know about 13 the marriage of the first petitioner with second petitioner only on the first birthday of her daughter. But the respondent No.2- de-facto complainant is none other than his maternal sister - in
- law i.e., the respondent No.2-de-facto complainant is the daughter of first petitioner's father's sister. When there is such close relationship between petitioner No.1 and de-facto complainant, it cannot be said that the de-facto complainant does not know about the marriage of first petitioner with second petitioner. Therefore, when the contention of the de-facto complainant cannot be believed about the first petitioner concealing his marriage with second petitioner, the offence under Section 420 of the Indian Penal code is not applicable.
10. In almost all the cases filed by way of private complaint, it has become practice for the complainants to quote Section 406 of the Indian Penal code along with Section 420 of the Indian Penal Code. It is to be noted that Sections 420 and 406 of the Indian Penal Code will not normally go together. In order to prove the offence under Sections 406 of the Indian Penal code, the prosecution is required to establish the ingredients of Section 405 of the Indian Penal Code, which reads as under:
"Whoever, being in any manner entrusted with property, or with any dominion over property, 14 dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
11. In order to prove above, following ingredients are required to be proved by the prosecution:
The accused must be entrusted with property or with the dominion power over that property.
The person entrusted must dishonestly misappropriate or converted the property for his own use.
The person entrusted dishonestly used or dispose of the property or wilfully suffer any person to do so.
12. There is not even a single ingredient to constitute that the petitioners have committed offence under Section 406 of the Indian Penal code. It is very unfortunate that whenever such private complaints are forwarded to the Police, the Police mechanically filed charge sheets by quoting the sections of Indian Penal Code as found in the private complaint without even considering as to whether there are any ingredients or prima-facie material to show that the accused likely to have committed the offences alleged in the complaint. There are no 15 ingredients atleast prima-facie in respect of offences punishable under Sections 420 and 406 of the Indian Penal Code.
13. The other offence alleged against the petitioners is for the offence under Section 506 of the Indian Penal Code. So, far as this offence is concerned, there are no specific overt-acts against the petitioners. Though it is stated that all the accused have threatened the respondent No.2-de-facto complainant with dire consequences in case if additional dowry of Rs.5 lakhs is not brought, nothing has been mentioned in the complaint as to which of the accused has threatened her. The respondent No.2- de-facto complainant is expected to mention as to on which date, in whose presence and at which place and which of the accused has threatened her. The allegations in respect of 506 of the Indian Penal code are omnibus and they are very generic in nature. In fact all the offences are arising out of the main Section 498-A of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act. When the respondent No.2-de-facto complainant is not admittedly legally wedded wife of petitioner No.1-accused No.1, the relationship between petitioner No.1- accused No.1 and respondent No.2-de-facto complainant can be termed as live in relationship and both of them are adults and therefore, their relationship even during the subsistence of 16 marriage of first petitioner with second petitioner cannot be questioned. Therefore, even the ingredients of offence under Section 506 of the Indian Penal Code are not being attracted to the facts of the case.
14. The other offence alleged against the petitioners is criminal conspiracy. The respondent No.2-de-facto complainant has not specifically mentioned anywhere in the complaint as to how the ingredients under Section 120-A of the Indian Penal Code are attracted. In order to constitute the offence under Section 120-A of the Indian Penal Code, the respondent No.2- de-facto complainant is expected to allege that more than two persons shall conspire to do a criminal act or illegal act by way of illegal means. In the case on hand, nothing has been attributed against the petitioners that they conspired to commit an offence. The complaint is filed narrating as if she does not know the marriage of first petitioner with second petitioner in the year 2004.
15. The de-facto complainant being daughter of first petitioner's maternal aunt, it cannot be said that she does not to know whether marriage of the petitioner No.1 was performed with petitioner No.2. The de-facto complainant being close 17 relatives of first petitioner cannot take a plea that she does not know about the marriage of first petitioner with second petitioner. When the respondent No.2-de-facto complainant is aware of the marriage of the first petitioner with second petitioner, it cannot be alleged against accused persons that all of them have committed offence of criminal conspiracy and allowed their marriage to continue. Even otherwise, the petitioner No.1 and respondent No.2-de-facto complainant have left their respective houses without informing their parents or elders and have performed their marriage in Thirupathi secretly. On a complaint given to the Police, petitioner No.1 and respondent No.2-de-facto complainant were traced and brought back to Hyderabad. That means, the de-facto complainant knowing fully well that first petitioner married with second petitioner has taken the risk of marrying him. Therefore, when such is the case, the de-facto complainant cannot allege that the accused have conspired and concealed about the first marriage and thereby she had to marry first petitioner. Hence, there are no ingredients at all to say that the petitioners have committed the offence punishable under Section 120-B of the Indian Penal code.
18
16. Therefore, to sum up, the offences under Sections 498-A of the Indian Penal Code and Sections 4 and 5 of the Dowry Prohibition Act are not at all applicable as respondent No.2-de- facto complainant is not the legally wedded wife of the first petitioner and similarly as discussed above as there are no ingredients to hold that the petitioners have committed the offence under Sections 406, 420, 506, 120-B of the Indian Penal Code. Thus, continuation of the proceedings against the petitioners in C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad amounts to abuse of process of law.
17. Accordingly the criminal petition is allowed and the proceedings against the petitioners-accused Nos.1 to 5 in C.C.No.417 of 2015 on the file of learned XIII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 08.09.2022 AS