Delhi District Court
Hem Prakash Sharma vs The State Of N.C.T on 26 April, 2012
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE; NORTH EAST:
KARKARDOOMA COURTS, DELHI
Criminal Revision No. 77/11
1. Hem Prakash Sharma
S/o Sh. Shiv Narayan Sharma
2. Shiv Narayan Sharma
3. Smt. Savitri Devi
W/o Sh. Shiv Narayan Sharma
All R/o Shickhak Nagar
Sasani District
Hathras, U.P. ......Revisionists
Vs.
1. The State of N.C.T
2. Smt. Archana
W/o Sh. Manoj Kumar Sharma
D/o Sh. Om Prakash Sharma
R/o Sandeep Colony,
Kila Gate, Hathras District
Mahamaya Nagar
U.P. ....... Respondents
Date of Institution of Revision Petition : 01.12.11
Date of arguments concluded : 24.04.12
Date of Order on Revision petition : 26.04.12
O R D E R
1. Aggrieved by the order dated 15.03.11 passed by Ld. Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 1/8 Metropolitan Magistrate (NE), KKD Courts, Delhi in the case bearing CC No. 9149/08 titled as "Archana Sharma Vs. Hem Prakash Sharma" whereby the Ld. MM ordered to summon accused no. 1, 2 and 3 i.e Hem Prakash Sharma, Shiv Narain Sharma and Savitri Devi u/s 406 IPC. The Revisionist has preferred the present criminal Revision petition on the following grounds :
1. That the impugned order passed by Ld. Trial Court is wrong in the law and on the fact of the case based upon mere conjectures and surmises. Even the issue of jurisdiction is not specified in the impugned order.
2. It has not been appreciated that the entire marriage ceremony took place at Hathras, UP and no dowry articles as alleged in the complaint case were given at Delhi nor the said articles are in the custody of petitioners as all the articles, stridhan had been taken away by the Respondent with her when she had left the matrimonial house at Sansani Hathras.
The complaint case does not disclose a single cause as to how and when the cause of action arose at Delhi nor it is mentioned in the order that how Ld. Trial court has acquired territorial jurisdiction to try and entertain the present case.
3. The Respondent no. 2 has concealed the material facts from the court that she has already filed a Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 2/8 criminal complaint against the petitioners and on her complaint an FIR no. 246/08 u/s 498A/323 IPC and 3/4 D. P Act was registered at PS Sasani Hathras, UP. Further, the Respondent should have requested the concerned court where the case u/s 498A IPC is pending to add charge under section 406 IPC or she should have to file another case u/s 406 IPC in the court Hathras, but she has choosen to file fresh case before Delhi court without any territorial jurisdiction and hence on this ground alone, the impugned summoning order is liable to set aside.
4. It has not been appreciated that while passing summoning order Ld. Trial court has failed to appreciate that the Respondent no. 2 has not filed any documents pertaining to her residence at Delhi. Even no affidavit has been filed by her to the effect that she is residing in Delhi.
5. It has not been appreciated that the Respondent has given four witnesses in the list of witnesses and all of them belongs to Hathras, UP and none of the said witnesses was called for examination. This clearly shows that nothing had happened at Delhi. Even Sh. Nand Kishore Sharma, the alleged uncle of complainant whose address is given in the complaint has not been made a witness in the case. Thus, it is Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 3/8 very clear that the Respondent has never lived at Delhi nor any such incident had happened at Delhi.
6. It is not appreciated that during entire proceeding of this case the complainant/Respondent appeared only three times before Trial court and on remaining each and every dates she was absent, which clearly shows that the Respondent does not live at Delhi and she has filed a false case by giving false address and incident at Delhi with intention to harass the petitioner.
7. It has not been appreciated that the Respondent has tried to mislead the trial court and the respondent has not filed even the copy of FIR which she has got registered at Hathras against the petitioner and there is a great contradictions in the version of the FIR and the complaint case no. 9149/08 and hence, the impugned summoning order is not sustainable in the eyes of law and is liable to set aside.
2. Copies of the petition were supplied to both the Respondents and they have contented the petition by leading the arguments through Ld. Addl. PP and Sh. Pradeep Sharma respectively.
3. As per submissions of Ld. Counsel for the Revisionist Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 4/8 the imugned order as passed by ld.Trial court cannot be sustained any more in the eyes of law. Ld. Trial Court has failed to appreciate that the court at Delhi has no jurisdiction to try and entertain the present complaint as no cause of action has ever arose at Delhi. The entire marriage ceremony took place at Hathras, UP and no dowry articles as alleged in the complaint was ever given at Delhi nor the said articles are in the custody of petitioner. All the stridhan had already been taken away with her at the time of leaving the matrimonial house at Hathras. The Respondent no. 2 has also concealed the material fact that she had got lodged an FIR bear no. 246/08 u/s 498A /323 IPC and 3/4 D. P Act at PS Sasani, Hathras UP against the petitioner and further she should have filed the appropriate application for addition of section 406 IPC in the said FIR/case itself or she should have filed the fresh case u/s 406 IPC in the court at Hathras. The respondent has not filed any document to show that she is residing in Delhi. Even no affidavit to that affect has been filed by her. Further, in her complaint the complainant has cited as many as four witnesses and all of them are the residents of Hathras.
Per contra according to the Respondents, the instant petition as filed by the petitioner is devoid of merits as there is no infirmities or illegality in the impugned order passed by Ld. Trial court. In the light of the provisions of section 181 (4) of Criminal Procedure Code, the court at Delhi too has territorial jurisdiction to entertain and try the complaint filed by the complainant. It Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 5/8 has been clearly provided in sub section 4 of section 181 Cr. P.C that any offence of criminal misappropriation or of criminal breach of trust can be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for by the accused persons. In this case the complainant has stated that she has been residing in Delhi and therefore, the stridhan is required to be returned at Delhi and as such, the court at Delhi has also territorial jurisdiction to try and entertain the case and as such, the petition is liable to be dismissed.
4. I have heard the respective rival submission of the Ld. Counsel for the Revisionist as well as of Ld.Addl.P.P for the State and perused the relevant material by calling the Trial Court record and I find that the there is a substance in the submissions raised on behalf of the respondents that instant petition as preferred by the petitioner has no force in it. The petitioner has assailed the impugned order mainly on the ground that the court at Delhi has no territorial jurisdiction to try and entertain the instant complaint as filed by the complainant but I do not find myself in agreement with the claim of the petitioner as there is a force in the submissions of the respondent that since in the complaint the complainant has claimed to be a resident of Delhi at present and she is asking for the return of her dowry articles at Delhi, so, by virtue of the provision of sub section 4 of section Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 6/8 181 of Cr. P.C the court at Delhi too has jurisdiction to try and entertain the complaint as the dowry articles are required to be returned at Delhi as per her demand.
Section 181 (4) reads as under :
Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
Further it is well settled that the offence u/s 406 IPC is a continuing offence and so long as the accused do not return the dowry articles, they keep on continuing the criminal breach of trust and as such, the dowry articles can be demanded by the complainant till the same is not returned. Here a reliance can be placed on the judgments reported as 2007 (3) RCR (Cr.) pg 10; 2008 (2) RCR (Cr.) 164. In 2009 (1) RCR (Cr.) 395, it was held that under section 181 (4) of Cr. P.C dowry articles are required to be returned to the complainant at the place of her residential address.
In the case in hand, by virtue of section 181 (4) Cr. P.C the court at Delhi has perfect territorial jurisdiction to try and entertain the case and therefore I do not find any substance in the instant petition and as such the same is hereby dismissed.
Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 7/8 The trial court record be sent back along with copy of this order.
The Revision file be consigned to Record Room after completion of necessary formalities.
Announced in Open court on 26th April, 2012 (RAKESH KUMAR ) Addl. Sessions Judge/North East, Karkardooma Courts, Delhi Hem Prakash Sharma and ors. Vs. State and ors., CR NO. 77/11 8/8