Gujarat High Court
Lata Saurabh Agrawal vs State Of Gujarat on 22 December, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/9537/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9537 of 2020
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LATA SAURABH AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1,2,3,4,5
DHRUVIK K PATEL(7769) for the Respondent(s) No. 3
NANDKISHOR C SHAH(8577) for the Respondent(s) No. 3
MS. M.H. BHATT, APP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 22/12/2020
ORAL ORDER
By way of present application, applicants have prayed to quash and set aside the FIR being C.R. No.11196007200131 of 2020 registered with Gorva Police Station, Vadodara City for the offence punishable under Section 406, 420, 323, 504, 506(2), 498(A) and 114 of the Indian Penal Code and requested to stay further proceedings thereof qua the present applicants.
The counsel on behalf of the applicants has urged that a perusal of the complaint would reveal that requisite averments to attract Section 406, 420, 323, 504, 506(2), 498(A) and 114 of the Indian Penal Code so as to make out a case of the Page 1 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER prosecution are absent. Hence, it is submitted that prima facie, it does not disclose the commission of the alleged offence. The petitioners, being in-laws, had never committed any cruelty at any stage to the complainant nor they have cheated to her and her father. It is further submitted that plain reading of the FIR would make clear that with a view to implicate entire family, minor incidents of taunts are attributed to them and belated FIR came to be filed. Learned advocate for the applicant has referred a copy of the divorce petition filed by the accused no. 1 before the Family Court, Bharuch being Hindu Marriage Petition No. 13 of 2020 and argued that as a counter blast to the complaints filed against the complainant and divorce petition filed by her husband, present FIR is lodged in order to humiliate and pressurize the applicants. That, no specific role has been attributed against any of the applicants much less serious in nature. That, allegations are raised against the applicants are unjustifiable, vague and baseless with ill-mind and malevolent intention. That, as the compromise efforts could not be worked out, first criminal complaint was lodged by the complainant against the present applicants. That, offence has been claimed to be occurred on 13th February Page 2 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER 2020 and impugned FIR was filed after delay of more than 34 days without any explanation of delay. The applicants No.4 and 5 ie., the accused no. 7 and 8 have been enlarged on anticipatory bail by the learned District and Sessions Court at Godhra vide order dated 06.06.2020. That, prior to lodging of the FIR by the respondent No.3-complainant, husband had made several complaints against the respondent no.3 and her father before the concerned police station raising serious allegations against the applicants. That, applicants are not residing at the place of the matrimonial home of the respondent no.3. It is further submitted that applicant no.1, since her marriage i.e. 9th December 2003, was residing at Bangalore till 2011 and thereafter, at Bombay from 2011 to 2015 and thereafter, at Bangalore till now. That, applicants No.2 and 3 solemnized marriage on 02.05.2005 and since then they have resided at Rajasthan till 2006 and thereafter, at Bombay till 2012 and thereafter at Ahmedabad till 2013. That the applicants No.2 and 3, at present, are residing at Bombay till now. That, applicant no.4 lives in Haryana and applicant no.5 is the friend of the applicant no.4 who is residing at Kolkata, (West Bengal), and thereby, all the applicants are Page 3 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER residing at their own places which is far from the matrimonial house of the respondent No.3-complainant and only with a view to humiliate them, names of the applicants are mentioned in the FIR. That, in absence of specific allegations against the accused persons, accordingly complaint was filed by the respondent no.3, which is liable to be quashed and set aside. Hence, it was requested by learned advocate for the applicant to quash and set aside the FIR being C.R. No.11196007200131 of 2020 registered with Gorva Police Station, Vadodara City for the offence punishable under Section 406, 420, 323, 504, 506(2), 498(A) and 114 of the Indian Penal Code. In support of his arguments, learned advocate for the applicants has placed reliance on the judgments reported in 2016 SCC Online Gujarat Page no. 9555 as well as 2010(3) SCC (Criminal) Page No. 473.
Learned APP for the respondents no.1 and 2 and learned advocate for the respondent no.3 have strongly objected the submissions made by learned advocate for the applicants and submitted that the applicants had fraudulent intention from the beginning having induced respondent no.3 herein to lend the amount of Rs. 37 lacs for shopping of the marriage Page 4 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER functions agreed between the parties. The applicants had never an intention to repay the amount received by them though multiple requests were made to them. Learned APP for the respondents no.1 and 2 and learned advocate for the respondent no.3 have pressed that whether the intention was to cheat from the inception or not is a question of fact and the same can only be decided by trial after appreciating the entire evidence. It is further submitted that the application itself is not maintainable for the reason that the same involves the disputed question of facts which would require detailed inquiry and investigation of issues involved in the application. That offence of criminal breach of trust is made out against the applicants as they failed to furnish the details as to whether Rs.37 Lakhs were used by them. That property (money) was entrusted to them by the father of the respondent No.3 for shopping of the accused persons in Kolkata. That more particularly, accused No.8 was under obligation to furnish all details as to where the amount was used which they were entrusted by the complainant. That the complaint itself discloses the commission of serious offence by the accused persons and specifically spells out the ingredients of the Page 5 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER Section which are made applicable. That cruelty and harassment were clearly alleged by the complainant against the accused persons in her complaint. That specific allegations against the accused No.1 to 6 demanding gifts on every festival which were given to them as per their wish by her father were also cleared. The complainant herself and her father were pressurized by the applicants for shopping of the marriage was to be done at Kolkata only and after reaching there, demand of Rs. 37 lakhs was made, which was fulfilled by her father. That accused No.1 to 7 had also informed that they belong to Haryana, and therefore, their relatives will also come to the marriage function and they are having habit of consuming liquor which is not possible in Gujarat, and therefore, marriage place is to be outside Gujarat only. That in a marriage function arranged in the Hotel at Delhi, a bill amount of Rs.70,42,702/- was paid by her father. The accused No.2 to 7 had pressurized her father for securing some of the bills in their names to show expenses in income tax. The mental harassment and cruelty was caused to the complainant, and thereafter, to keep on demanding more and more money from the complainant. That disputed question of fact cannot be Page 6 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER decided while exercising power under Section 482 of Cr.P.C. That though the accused are residing at different places, at one or other instances, their involvements in commission of offence either directly or indirectly by conniving with the other accused is clearly made out. That huge amount has been siphoned by the accused No.2 in connivance with the other accused persons. That because of the harassment and mental torture caused by the accused persons, complainant was in stress and depression, and therefore, she was under treatment of psychiatric. That offence as alleged in the complaint are made out prima facie, and therefore, criminal complaint lodged by her cannot be quashed by this Court. Hence, it was requested by Learned APP for the respondents no.1 and 2 and learned advocate for the respondent no.3 to dismiss the present application.
It is pertinent to note the facts giving rise to the present application in a detailed manner. As per averments made in the complaint, out of the wedlock, she gave birth of one son on 15.06.2018 who is two years old and residing with the complainant at present and with the efforts of the petitioners and other accused persons, her marriage took place with the Page 7 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER accused No.1 and prior to that, it was informed that the accused No.1 is an obedient and loyal man and having good business and has a Chemical Factory, etc. That the petitioners do not believe in dowry system and they have no demand for that. Thereafter, on request of the member of her matrimonial side, the engagement was fixed in Taj Hotel on 17.02.2017. Later just prior to their engagement, the complainant was informed by members of her matrimonial side that they will not make any demand for dowry, however, thereafter at the time of engagement it is alleged that on the request of the father-mother in laws of the complainant, her father ie. Sudhirbhai Gupta, gave gold coins and Rs.5000/- to their relatives and accused No.1 was given the chain and diamond ring as demanded by him. That, demand of her in-laws was continued on different festivals for want of gifts. The petitioners and other accused persons were also given the gifts as demanded by them. That when the marriage date was fixed, the petitioners and other accused persons insisted her father to purchase the clothes, ornaments for the marriage function from Kolkata as per their choice and for that she had gone there where her father managed to borrow money from her Page 8 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER relatives and savings and thereafter gave Rs.37 Lakhs in cash to the petitioner No.5 (i.e. accused No.8) for shopping and for which no bill is given till today. Thereafter, the petitioners and other accused persons insisted complainant's father to schedule the marriage venue outside Gujarat and insisted for destination wedding and they took her father to visit different places at Nepal and Delhi. Finally, their marriage took place in Hotel Hayat at Delhi and her father gave the bill of hotel to the tune of Rs.70,42,702/- and paid for liquor also. Further at the instance of her father in law and the petitioner No.4 (i.e. accused No.7), some of the bills were shown in their names for income tax purpose, but actually the same was paid by the father of the complainant for their wedding and thus, they spent about Rs.1.5 crore for the grand wedding. Further on the first night, after the wedding at Bharuch, her father-in-law told her that her husband has lavish lifestyle and all the members at home are consuming liquor at home at night. By knowing such facts, she felt cheated and disappointed. However, with the great hope and expectation of future, she started new life. That the couple went to Europe for their honeymoon and they had a rift amongst them regarding Page 9 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER consuming liquor and her husband got angry and abused her physically. After returning to Bharuch, respondent No.3 created several problems on a trivial issue regarding her husband having female friends. Thus, she portrayed as if she is tolerating such cruel behavior and torture of her husband and in laws. Thereafter, it is also alleged that the petitioners and other accused persons kept on demanding gifts and cash from the original complainant and her father. That as she became pregnant, her husband and father-mother in laws told her to make her father prepared for the budget of Rs.25-30 Lakhs. That the petitioner Nos.1 to 4 (i.e. Accused Nos.4 to 7) also told her to abort the child if she is not ready to make the said budget. That as she was not well and in order to avoid any treatment for pregnancy, her father was called up and she came to Vadodara for treatment. That after delivery of a child, no one came to meet her. Later on, it is alleged that the accused persons other than the petitioners herein, further demanded Rs.30 Lakhs if she wanted to come back to her matrimonial house and however, they got angry and threated for her life. They refused to accept her and thereafter, some of the members made efforts to convince them together back. Further Page 10 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER it is alleged that on 13.02.2020, respondent No.3's Father and her uncle had gone to Bharuch to convince them but her father in law had lodged a false complaint in Bharuch Police Station and they refused to compromise and further demanded for divorce. After which respondent No.3's husband sent her notice for divorce case filed in Family Court, Bharuch where she realized that they have no care for her or her child. By narrating the aforesaid facts, the aforesaid FIR was registered against the petitioners and other accused persons.
Having observed the background principles applicable herein, this Court needs to consider the individual charges against the applicants. Turning to Section 405 read with 406 of IPC, it is observed that the dispute arises out of Rs.37 Lakhs between the parties. It is alleged in the complaint that this amount was paid to the accused No.8 for shopping of marriage function at Kolkata and no details were provided to the complainant or her father, and therefore, from the beginning it was an intention of the applicants about committing cheating to her. There is nothing on record, except bare reading in the complaint, the amount of Rs.37 Lakhs were paid by the father of the complainant at Kolkata for shopping purpose of Page 11 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER marriage function to the accused No.8 who is not relative of any of the accused persons, who is named in the complaint but he happens to be a friend of the applicant No.4. It falls from the record that respondent No.3 and her father were informed that the marriage function was fixed at Delhi and as agreed between the parties, they visited Kolkata for shopping purpose of marriage function. Before filing of the present complaint, no demand of any amount allegedly obtained to the accused persons was made by the complainant or her father. The law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment. In this context, this Court would like to note that there is nothing either in the complaint or in any material before this Court, pointing to the fact that any property was entrusted to the applicants at all which they dishonestly converted for their own use so as to satisfy the ingredients of Section 405 punishable under Section 406 of IPC.
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R/CR.MA/9537/2020 ORDER Now coming to the charge under Section 415 punishable under Section 420 of IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. In the case before this Court, admittedly the applicants are the in-laws and family members of the accused No.1, who is not before this Court. With the consent of complainant, marriage was decided to be arranged in Hotel Hayat at Delhi. Before marriage, engagement of the respondent No.2 was fixed in Taj Hotel on 17.02.2017. As per the say of the complainant in her complaint, she was informed by the members of his matrimonial home that they will not make any demand for dowry, however, at the time of engagement, father in law of complainant demanded golden coins and Rs.5.000/- to their relatives and accused No.1. It is pertinent to note that, no provisions under the Dowry Prohibition Act are applied in the complaint. However, there is nothing on record that amount of Rs.37 Lakhs was paid by the father of the complainant to the accused No.1 for shopping purpose of marriage at Kolkata. This would not give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the Page 13 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.
It appears from the averments made in the application as well as documents produced on record that applicants are not residing at the place of the matrimonial home of the respondent No.3-complainant. Applicant No.1, since her marriage ie. 9th December 2003, was residing at Bangalore, Mumbai likewise applicants No.2 and 3 since their marriage solemnized on 02.05.2005 are residing at Rajasthan, Mumbai and Ahmedabad. Applicant No.4 is residing in Haryana. Applicant No.5 is a friend of the applicant No.4 who is residing at Kolakata (West Bengal). The submissions on this issue about residing separately by all the applicants are not denied by the respondent No.3 before this Court. It is clear that all the applicants are residing at their own places, which are far from the matrimonial house of the original complainant. Applicants No.1 and 2 are sister-in-laws (Nanad) of the original complainant, whereas applicant No.3 is the husband of the Page 14 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER applicant No.2 and applicant No.4 is the maternal uncle of the original complainant and applicant No.5 is the friend of the applicant No.4. The relationship of the applicants is also not controverted by the respondent No.3 in her affidavit. It also appears that before lodging the complaint by the respondent No.3, husband of the complainant had made several representations to the Inspector of Police, Bharuch Police Station raising his grievance against her. Copies of the representations made by the accused No.1, who is the husband of the respondent No.3, are produced on record by the present applicants. One divorce petition under Section 13(1)(i)(ii) of the Hindu Marriage Act, 1955 for Dissolution of Marriage was also preferred by husband of the respondent No.3 namely Rohan Raju Kumar Mahipal being Hindu Marriage Petition No.13 of 2020 before the Family Court, Bharuch on 29.01.2020. After filing of the divorce petition by the accused No.1, it appears that respondent No.3 lodged the present complaint before the police on 15.03.2020 arraigning her husband and other relatives. As per the complaint registered with Gorva Police Station, Vadodara City on 15.03.2020, offence has been claimed to have occurred on 13.02.2020 and Page 15 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER the impugned FIR has been filed after delay of more than 34 days without any explanation. There is a reason to believe that as a counter blast to the complaint filed against the respondent No.3 and divorce petition filed by her husband, present FIR is lodged in order to humiliate and pressurize the applicants. It is impressed that with a view to implicate entire family, multiple instances of taunts are attributed to them and belated FIR came to be filed. Prima facie, it appears that applicants being in laws, never committed any cruelty to the complainant nor cheated to her or her father.
From the record, it transpires that applicant No.4 namely Satish Ram Ricchpal Mittal as well as applicant No.5 Gopal Kumar Tulsyan had approached the learned District and Sessions Court at Vadodara by filing different Criminal Miscellaneous Applications under Section 438 of the Cr.P.C. and they were released on anticipatory bail vide order dated 06.06.2020 by learned 7th Additional Sessions Judge, Vadodara.
If we examine the essential ingredients of Section 498 [A] IPC, the same reads thus - [1] a woman must be married; [2] Page 16 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER she must be subject to cruelty; [3] cruelty must be of the nature of [a] any willful conduct as was likely to drive such woman [I] to commit suicide; [ii] cause grave injury or danger to her life, limb; either mental or physical; [b] harassment of such woman : [a] with a view to coerce her to meet unlawful demand for property or valuable security, [b] or on account of failure of such woman or by any of her relation to meet the unlawful demand; [iii] woman was subjected to such cruelty by : [a] husband of that woman; or [b] any relative of the husband, for constitution of an offence under Section 498A IPC.
Thus, for proving an offence punishable under section 498-A IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any willful conduct on the part of the accused 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. This Court does not find any such allegation made in the impugned complaint.
In case of Meenaben Jayantbhai Jethwa v. State Page 17 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER of Gujarat reported in 2016 SCC OnLine Guj 9555, this Court has examined the issue of cruelty under Section 498(A) of the IPC and thereafter, the complaint registered against the petitioner of that petition was quashed.
In another case of Preeti Gupta and another versus State of Jharkhand and another reported in 2010 (7) SCC 667 , the Hon'ble Apex Court has observed as under:
It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.
It is a matter of common experience that most of these complaints under Section 498-A of the IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. Page 18 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021
R/CR.MA/9537/2020 ORDER In the cited case also neither of the applicant was residing with the complainant in her matrimonial home nor visited her. However, complaint was filed under Section 498(A), 406, 341, 323 and 120-B of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act. The Hon'ble Apex Court has observed that no specific allegations were made against the applicants in the complaint and none of the witnesses have attributed any role to them, implication of the applicants in the complaint is meant to harass and humiliate the husband's relatives. It is further held that permitting the complainant to pursue this complaint would be an abuse of the process of law and hence, that FIR filed against the applicant was quashed.
Here also all the applicants are staying separately from the complainant and they have not visited her. No specific allegation are made against the applicants in her complaint. Their implication was made by the complainant to harass and humiliate them as they are relatives of the husband .
A similar issue was there in Criminal Appeal No.594 of 2019 with Criminal Appeals No.598, 599, 597, 596 and 595 of 2019 before the Hon'ble Apex Court reported in 2019 Page 19 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021 R/CR.MA/9537/2020 ORDER Supreme Court 2297, wherein Hon'ble Supreme Court, after examination of the facts and issue, was also pleased to quash and set aside the order of summons so far as Section 498 (A) of the the IPC and Sections 3 and 4 of the Dowry Prohibition Act.
In view of the above, the application filed by the present applicants under Section 482 of Cr.P.C. is allowed and proceedings initiated based on the FIR being C.R. No.11196007200131 of 2020 registered with Gorva Police Station, Vadodara City for the offence punishable under Section 406, 420, 323, 504, 506(2), 498(A) and 114 of the Indian Penal Code, instituted at the instance of the respondent No.3, are hereby quashed and set aside qua the present applicants.
Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned police station through fax or email forthwith.
(B.N. KARIA, J) VARSHA DESAI Page 20 of 20 Downloaded on : Tue Feb 23 09:16:59 IST 2021