Saturday, 22 August 2015

Whether persons not residing with husband can be charged for criminal breach of trust relating to streedhan of wife?

In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.
Equivalent Citation: 2015ALLMR(Cri)2607, 2015(2)Crimes368(Bom.)
IN THE HIGH COURT OF BOMBAY
Criminal Application No. 251 of 2014
Decided On: 14.01.2015
Appellants: Gopal and Ors.
Vs.
Respondent: State of Maharashtra and Ors.
Hon'ble Judges/Coram:S.B. Shukre, J.
1. Heard. Admit.
2. Heard finally by consent.
3. By this application, the applicants have sought quashing of the order dated 22.2.2012 issuing process against them for the offences punishable under Sections 498-A, 406 and 417 read with Section 34 of the Indian Penal Code and also quashing of the complaint filed against them by respondent No. 2.
4. According to the learned counsel for the applicants, there is not even a whisper of allegations made against both these accused constituting essential ingredients of offences punishable under Sections 498-A, 406 and 417 of the Indian Penal Code. In support, he has taken me through the complaint, copy of which has been filed on record as Annexure-2. Learned counsel for the Non-applicant No. 2 states that the applicants should not shy away from the trial and whatever they are submitting now can be submitted by them on merits of the case and, therefore, it would be premature for this Court to allow this petition. He also submits that the allegations made against both the applicants, as can be seen from the paragraphs 4, 13 and 14 in the complaint are sufficient to indicate that prima facie case for the alleged offences has been made out against both the applicants.
5. Learned A.P.P. for the Non-applicant No. 1/State submits that an appropriate order may be passed in this case.
6. Upon careful examination of the complaint filed by the Non-applicant No. 2 against the applicants and other persons, I find that so far as present applicants are concerned, there is not even a single allegation which, if taken at face value would constitute any of the offences alleged against these applicants. These allegations neither show any prima facie cruelty having been meted out by the applicants to Non-applicant No. 2 nor any cheating or criminal breach of trust having been prima facie committed in respect of valuable articles, which the Non-applicant No. 2 says to be a stridhan.
7. In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.
8. In paragraph 13 of the complaint, what is stated is that there was a meeting on 18.5.2010 at the residence of the applicant No. 2 in which meeting, applicant No. 2, together with accused No. 1-Vaibhav and accused No. 3-Anuradha levelled several false and baseless allegations against the Non-applicant No. 2 in the presence of remaining accused persons. However, what allegations were levelled against her, has not been mentioned by the Non-applicant No. 2. On the basis of statement that false and baseless allegations have been made by one person against another, offence of cruelty is not prima facie constituted. Making of such a statement only discloses the opinion of it's maker and, therefore, the complainant, who wishes to prove her case of cruelty, must specify the allegations in the complaint so as to enable the other side to meet them appropriately and also enable the Court to decide, as to whether or not these allegations really constitute in law the offence of cruelty, which is not the case here. The statements so made in paragraph 13, therefore, cannot be considered to be sufficient for prima facie constituting offence punishable under Section 498-A of the Indian Penal Code. The statement in paragraph 13 attributed to applicant No. 1 which is to the effect that he has advised Non-applicant No. 2 to mend her ways and improve herself, which is nothing but giving of an elderly advice, wrongly or rightly and it cannot amount to cruelty.
9. In paragraph 14 of the complaint, it is alleged that the accused Nos. 1 to 4 and 6 forced the complainant to apologize and make a solemn promise that the complainant shall not chat on "ORKUT", a social networking site. I do not think that even this allegation can amount to harassment within the meaning of Section 498-A of the Indian Penal Code as it has no relation to driving the complainant into such behavior as to endanger her life or cause injury to herself. This allegation also does not have any relation to coercing of the complainant into meeting any unlawful demand for any property or valuable security. On the contrary, spending long time on social networking site such as "ORKUT" or "FACEBOOK" by a person can be viewed as mental harassment by another spouse and, therefore, if the spouse is advised to spend loss time on a social networking site or desist from visiting it, the advice is capable as being seen as made with a view to keep the marriage intact and not otherwise.
10. Except the above referred allegations, there are no other allegations made against both the applicants and learned counsel for the Non-applicant No. 2-complainant could also not show to me any other allegations except for the afore stated allegations. I have already found that the afore stated allegations do not prima facie constitute any of the offences punishable under Sections 498-A, 406 and 417 of the Indian Penal Code. Therefore, no process for these offences could have been issued against both these applicants. Although learned Magistrate, while issuing process has observed in the order that he has read the complaint, the above referred discussion would show the position to be otherwise. He does not seem to have read the complaint properly. The allegations contained in the complaint, so far as present applicants are concerned, do not make out any case and, therefore, disagreeing with learned counsel for the Non-applicant No. 2, I find that calling upon the applicants to face the ordeal of trial in such a situation would amount to grave injustice to the applicants. The complaint, therefore, as against both the applicants deserves to be quashed and set aside. Accordingly, the application is allowed.
11. The impugned order of issuance of process under Sections 498-A, 406 and 417 of the Indian Penal Code against the applicants is hereby quashed and set aside.
12. The complaint as against both the applicants also stands dismissed. The trial as against remaining accused persons, however, shall proceed further in accordance with law.
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