Chattisgarh High Court
P. Venkataramana Murthy & Others vs Smt. P. Kavita Murthy on 30 April, 2004
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.Cr.C.No.3657 OF 2000
P. Venkataramana Murthy & Others
...Petitioners
VERSUS
Smt. P. Kavita Murthy
...Respondents
! Shri Arjun Yadav, Advocate for the applicants.
^ Respondent in person.
Hon'ble Justice Shri Fakhruddin
Press any key to continue ...
Dated : 30/04/2004
: ORDER
O R D E R This petition under Section 482 Cr.P.C. has been filed by the applicants for quashing the complaint registered by the Judicial Magistrate First Class, Raipur for an offence punishable under Section 406 of I.P.C.
2. Briefly stated the facts are that the applicant no.1 and the respondent were married on 3/11/1995 according to Hind Rites and Customs. They lived together but it is on 3/12/1997 the respondent was sent to her maternal home on the pretext that her husband is going to Nagpur and thereafter she received the notice. The respondent's case is that she had also reported the matter under Section 498-A of IPC against the accused persons. It is stated that when the report was lodged, the list was submitted to the police station, panchnama was prepared, some articles were given, whose list is there, and other articles were not given and have been misappropriated, which are her stridhan. It is further stated that she served a notice on 30/5/1998 and on 01.08.1998 a complaint under Sections 405 and 406 I.P.C. read with Section 200 Cr.P.C. was filed by the respondent before the Judicial Magistrate First Class, Raipur. The complainant submitted the list of twelve witnesses with their addresses alongwith the list of articles, which have been misappropriated. The learned Magistrate recorded the statement of Smt. P. Kavita Murthy (AW-1) on 02.08.1999. The statement of P. Vasant Kumar Naidu (AW-2), the father of complainant, was also recorded on the said date. The statements of Mahendra Kumar (AW-3) and Yashwant Rao Naidu (AW-4) were also recorded on 28.08.1999.
3. The complainant (AW-1) in her statement has stated that her marriage was solemnized on 03.11.1995 at Kundan Palace, Raipur according to Hindu Rites and Customs. At the time of marriage, all her relatives were present including mother, father and maternal grand-father. The complainant has further stated that gold and silver ornaments and sarees were presented in the marriage. She has also stated that though the sarees have been returned by the accused persons but the gold and silver ornaments were not returned. She stated that after the marriage, the accused persons were ill-treating her and was being tortured mentally and physically. She further stated that the accused persons called her father and sent her to Raipur with him saying that her husband has to appear in the examination at Nagpur on 03.12.1995. She also stated that she has lodged an FIR on 16.12.1997 in the Mahila Police Thana for an offence punishable under Section 498-A I.P.C. She further stated that she had filed the application under Section 125 Cr.P.C. for maintenance and a sum of Rs.500/- per month has been awarded to her by the Court. The father of the complainant (AW-2) in his statement has stated that the complainant is his daughter and her marriage was solemnized with P. Venkatraman Murthy on 03.11.1995 at Raipur according to Hindu Rites and Customs. He further stated that all his relatives and the relatives of accused persons were present in the marriage. He also stated that at the time of marriage gold and silver ornaments of about Rs.1,50,000/- which were purchased from the shop of Mahendra Kumar Shah, were also given. He stated that an FIR was also lodged by his daughter against the accused persons for an offence punishable under Section 498-A I.P.C. and the matter is pending before the Court. He further stated that in the said case the police has seized the articles except the ornaments from the accused persons and has given him on suprudnama. He also stated that he was also given a Mukhtyarnama by his daughter, as she was studying.
4. Mahendra Kumar (AW-3) in his statement has stated that he is a businessman of gold and silver, having his shop in Sadar Bazar Raipur in the name of Shailesh Kumar and Brothers. He is also having a firm in the name of Anuradha Jewellers. He further stated that he knows the complainant Kavita and her father Shri Vasant Kumar Naidu from the year 1980-81. He also stated that for the marriage of Kavita, the ornaments of ten taula gold and 3-4 kilogram silver were made by him as well as few ornaments and utensils were got polished. He stated that in the marriage, the ornaments were worn by Kavita. The utensils were kept in front of the Mandap. Yashwant Rao Naidu (AW-4) in his statement has stated that he knows the complainant Kavita. She is his niece. The marriage of Kavita was solemnized on 3/11/1995. He further stated that nowadays Kavita is living in her maternal home, as her husband has sent her alongwith her father. He also stated that the husband of Kavita is trying to take divorce from her. He stated that the ornaments given in the marriage have not been returned by the accused persons. The cash amount of Rs.1 lac on 1/6/1995 and Rs.10,000/- in the marriage mandap was also given on credit. He further stated that this amount was promised to be returned by the accused persons.
5. The learned Magistrate on the basis of the complaint as well as the evidence recorded and after hearing the complainant and her counsel and considering the material on record as well as the law laid down by the Apex Court in the case of Pratibha Rani vs. Suraj Kumar and others reported in AIR 1985 SC 628 registered the offence on 13/12/1999 and directed to issue process.
6. Against the order of registering the complaint, the accused persons preferred a revision before the Addl. Sessions Judge, Raipur being Cr.R. No.33/2000. The grounds urged in the revision were (1) that the learned lower court has grossly erred in law and facts in passing impugned order against the petitioners; (2) that the learned lower court has misappropriated and misapprehended the entire documents filed by the respondent on record; (3) that the learned court ought to have held that where there was no settlement of dowry and without receipt of records of articles at the time of marriage the complaint filed after lapse of ample time the criminal complaint cannot be initiated against the petitioner. The Court ought to have seen the relevant documents and evidence on record before taking cognizance against the petitioners and therefore the complaint is liable to be set aside and issue of process is bad in law and hence liable to be quashed in the interest of justice; (4) that the learned court ought to have held that the seized articles are disputed is undecided in pending criminal court and therefore the initiating criminal prosecution is bad in law and therefore the issue of process is liable to be quashed in the interest of justice; (5) that the learned court ought to have applied his judicial mind before issuing process after taking cognizance against the petitioners which amounts to miscarriage of justice and against the established principles of law.
7. The Revisional Court after considering the material on record and hearing the learned counsel for the parties dismissed the revision. Being aggrieved, the applicants preferred this petition for quashing the complaint.
8. The first ground urged is about the maintainability of the complaint. It is contended that the complaint was filed by the complainant's father and the counsel and as such it is not maintainable. This has been considered by the Revisional court as well and noted that the complaint is signed by the complainant. It was presented by her counsel and the complainant's father. In para 6 of the order, the Revisional court has noted that though in the cause title of the complaint it is mentioned as the complainant through Mukhtyar & Father Shri P.B. Naidu, but in all pages of complaint, list of witnesses and the documents annexed with the complaint, the signatures of complainant Smt. P. Kavita Murthy are there. It is also noted that on the date of filing of the complaint, i.e. 1/8/1998, she was present. She has also examined herself before the Court of learned Magistrate as A.W.1. In view of the aforesaid circumstances, the court below negatived this ground. This Court has reconsidered the same again and there is no merit in it. It is just by way of abundant caution that the complaint was filed through father, as complainant could not attend all the dates because she was studying at that time. This is disclosed in the Power of Attorney filed with complaint. The question of maintainability of the complaint by the Power of Attorney holder had been dealt with by the High Court of M.P. in the case of Dr. Anil Kumar Haritwal and others vs. Sant Prakash Gupta and others reported in 2001 (3) MPHT 325, wherein it has been held as under:
"The power of attorney is the instrument by which a person is authorized to act as the agent of the person granting it. Section 2 of the Powers of Attorney Act empowers the donee of a power of attorney to do anything `in and with his own name and signature', by the authority of the donor of the power. This section declares that everything so done `shall be as effectual in law as if it has been done by the donee of the power in the name and with the signature the donor thereof and as such, the act committed by the holder of the power of attorney would be presumed to be an act committed by the person who gives power of attorney. In that view of the matter, lodging of the complaint by the power of attorney holder of the payee could not be said to be illegal or invalid. Thus, in view of the specific provision of Section 2 of the Powers of Attorney Act, the complaint lodged by the power of attorney holder is a complaint lodged by the payee."
9. Another question raised is about issuing process against the petitioners is concerned, in this connection, the Revisional Court in para 10 of its judgment has gone through the evidence for the purposes of issuance of summons and has considered the evidence of the respondent, her father P.B.K. Naidu, Mahendra Kumar and Yashwant Rao Naidu. In para 11, the Revisional court also considered that the articles were given by the family members of the respondent. The list has been filed in the Court. The articles are mentioned in the list and the same is a matter of evidence and parties will have right to make their submissions before the trying Magistrate.
10. Prima facie, for the purposes of issuance of notice, the judgment of the Apex Court in the case of Deputy Chief Controller of Exports and Imports vs. Roshanlal Agrawal and others reported in AIR 2003 SC 1900 is pertinent. Para 9 of the said judgment is relevant and is quoted below:
"In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
This question was considered by the Hon. Supreme Court in U.P. Pollution Control Board vs. M/s Mohan Meakins Ltd. and others reported in AIR 2000 SC 1456 and after noticing the law laid down in Kanti Bhadra Shah vs. State of West Bengal (AIR 2000 SC 522), it was held as under:
"The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."
In the instant case, however, the learned Magistrate has considered the evidence adduced by the complainant and also the judgment of the Apex Court in the case of Pratibha Rani (supra) and passed speaking order. It is neither cryptic nor mechanical.
11. The next ground raised and reiterated here is that there was no dowry. It is said that no dowry was settled. No agreement was there, therefore, dowry was not paid and offence is not made out. This contention has no force. The question here is for return of articles given to her by parents and relations and stridhan property. The Hon. Supreme Court in the case of Pratibha Rani (Supra) has held as under:
"It cannot be said that upon a woman entering the matrimonial home the ownership of stridhan property becomes joint with her husband or his relations. Even if the stridhan property of a married woman, is placed in the custody of her husband or in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her."
12. The next ground raised was about the pendency of the case under Section 498-A of IPC. The said case is for distinct offence. Each case will have to be considered on the basis of material placed and evidence adduced.
13. Learned counsel for the applicants contended that general and vague statement does not fulfill the requirement of Section 406 I.P.C. It is further stated that there is no evidence whatsoever to suggest that any jwellery had been entrusted to any of the three applicants and it should have been held that all the jwellery that was given to the respondent was worn by her at the time of marriage and thereafter it continued to be in her possession. It is also stated that filing of a list of ornaments by the prosecution does not establish that those ornaments were in fact given in marriage to the bride. These are the questions, which may be considered by the trial court. The judgment of the Apex Court in the case of Pratibha Rani (supra) is a complete answer to the submissions made. Para 60 of the said judgment is pertinent and is quoted below:
"By way of post-script we might add that we are indeed amazed to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married woman that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relations. Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts are clearly alleged in a complaint for an offence under Section 405/406 IPC, some Courts take the view that the complaint is not maintainable. Thus, even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeals before the Allahabad and the Punjab and Haryana High Courts show that it is not so but is a pure figment of the High Court's imagination as a result of which the High Courts completely shut their eyes to the fact that the husband could also be guilty under Section 405/406 IPC in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and perverse approach."
14. So far as the aspect that the marriage had taken place at Raipur and the articles were given at Raipur is concerned, the Court has considered. This Court has gone through the material on record. Even otherwise, the applicants may raise these grounds before the learned Magistrate, which will be considered on its own merits.
15. Shri Arjun Yadav, learned counsel for the applicants, read para 77 of the judgment of the Apex Court in the case of Pratibha Rani (supra), which is minority view. He also relied upon the judgment of the Karnataka High Court in the case of Smt. Fulwanti Agrawal vs. Naresh K.R. and others reported in 2000 Cr.L.J. 3236. That was not a case between husband and wife. Counsel further relied upon the judgment of Madras High Court in the case of Alagappan vs. Thilagam reported in 2000 Cr.L.J. 3239. That was the case relating to maintenance. It has nothing to do with the present case. Counsel also relied upon the judgment of the High Court of M.P. in the case of Shyam Sunder Banka and others vs. State of M.P. & others reported in 1983 MPLJ 869 to say that it is a dispute of civil nature. Counsel placed reliance upon the judgment of the Apex Court in the case of Roshanlal Raina vs. State of Jammu & Kashmir reported in 1983 Cr.L.J. 975. Counsel further relied upon the judgment of the High Court of M.P. in the case of Vijay Kumar and another vs. Sunita and others reported in 2000 Cr.L.J. 4116 to show the place of trial. Here in the present case, the facts are entirely different. Counsel also relied upon the judgment of the Andhra Pradesh High Court in the case of Rohinton Noria vs. M/s NCC Finance Ltd., Hyderabad and another reported in 2000 Cr.L.J. 4117. That was the case relating to Negotiable Instruments Act. Counsel further relied upon the judgment of the High Court of M.P. in the case of Isaac Jaise and another vs. Jasmit Singh Saluja and another reported in 2003 Cr.L.J. 1980. That was the case filed against the financier. Counsel also relied upon the judgment of the Karnataka High Court in the case of S. Sathyanarayana vs. State of Karnataka reported in 2003 Cr.L.J. 1983. This Court has gone through the aforesaid judgments. All these cases have no application in the facts and circumstances of the case.
16. So far as the facts and circumstances of the present case is concerned, the judgment of the Apex Court in the case of Pratibha Rani vs. Suraj Kumar and others reported in AIR 1985 SC 628 has been referred to in earlier paragraphs and is referred to in this regard. This judgment has further been considered by the Apex Court in the cases of Radha Rani vs. Pramod Kumar Oberai reported in 1995(4) Supp. SCC 491 (Para
2), Smt. Rashmi Kumar vs. Mahesh Kumar Bhada reported in 1997(2) SCC 397(Para 14) and S.W. Palanitkar and others vs. State of Bihar and another reported in 2002(1) SCC 241 (Para
15).
17. Para 2 of the judgment of Apex Court in the case of Radha Rani (supra) is quoted below:
"The High Court has quashed the complaint made by the wife under Section 406 IPC against the husband, father-in-law, mother-in- law and in-laws, on the ground that the entrustment of ornaments, clothes and cash was not specifically mentioned in the complaint. We have perused the complaint and also the statement of the complainant recorded by the Additional Chief Judicial Magistrate. We find that the conclusion reached by the High Court appears to be not correct. There are allegations to the effect of entrustment, the correctness of which, of course, will have to be gone into in the trial of the case. It cannot, however, be stated that there was no entrustment of articles and cash pleaded in the complaint. For taking cognizance of the case, the allegations in the complaint, in our opinion, are sufficient. The High Court, therefore, was in error in quashing the complaint under Section 406 and the proceedings connected therewith taken by the Magistrate."
18. The relevant portion of para 14 of the judgment of Apex Court in the case of Smt. Rashmi Kumar (supra) is quoted below:
"...It is fairly settled legal position that at the time of taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It was held in State of Bihar vs. Rajendra Agrawalla (1996) 8 SCC 164 that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable under Section 406 IPC had been made out. "
19. Para 15 of the judgment of Apex Court in the case of S.W. Palanitkar (supra) is quoted below:
"In case of a complaint under Section 200 Cr.P.C. or I.P.C. a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either falls or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words `sufficient ground' used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction."
20. In view of the aforesaid judgment of the Apex Court and the settled law, the position emerges is that the Court below has committed no illegality in registering the case and further that no case has been made out for interference in exercise of jurisdiction under Section 482 Cr.P.C. The petition fails and is dismissed. However it is made clear that the trial Court shall proceed and decide the case on its own merits.
21. At this stage, learned counsel for the applicants pointed out that the applicants had appeared before the learned Magistrate. It is further pointed out that the learned Magistrate had granted exemption from personal appearance to applicant No.3 being an old lady vide order dated 28.03.2001 and she is now appearing through counsel. Learned counsel prays that the applicant No.2 may also be granted exemption from personal appearance, as he is also an old man. Counsel may make suitable application before the learned Magistrate, which will be considered on its own merits. However, in the ends of justice, it is directed that till the application is filed before the learned Magistrate, applicant No.2 is also granted exemption from personal appearance.
Sd/-
FAKHRUDDIN JUDGE 30/4/2004.
A/H