THE HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.4161 of 2017
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 to 4 to quash C.C.No.724 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate at Hyderabad, the cognizance of which was taken for the offences under Sections 498-A, 406, 420 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
2. The facts in brief as can be seen from record available before the Court are as under:
a) The de-facto complainant - respondent No.2 has lodged a private complaint under Section 200 of the Code of Criminal Procedure before the learned XIII Additional Chief Metropolitan Magistrate at Hyderabad alleging that her marriage was solemnized with petitioner No.1-accused No.1 on 20.02.2012 at Centenary Baptist Church at Secunderabad and her father has spent the expenditure incurred for wedding and reception. On the demand of the accused, the parents of de-facto complainant have given 20 thulas of gold ornaments to the accused as dowry 2 at the time of marriage. Accused Nos. 2 and 4 are the parents and accused No.3 is the sister of accused No.1. On 20.03.2012 the de-facto complainant has joined her matrimonial house, wherein she was restricted to have access to internet, newspaper, cell phone and she was not permitted to speak to her parents but at times she was permitted to speak to her parents from the mobiles of accused, that too in the presence of accused with speaker phone on. Accused No.2 has taken custody of wedding rings. On the demand of accused Nos.2 and 3 to get gifts from her parents, the de-facto complainant has complied their demand but accused Nos.2 and 3 were not satisfied and thereby started harassing her. The de-facto complainant was entrusted with household work in the midnight and she had only 3 to 4 hours of sleeping per day. Accused No.2 directed the de-facto complainant to seek her permission even to attend nature call. On the instigation of accused Nos.2 and 3, accused No.1 also started harassing the de-facto complainant physically, mentally and economically. Accused No.3 took the mango gold chain of the de-facto complainant in front of accused No.1, who remained silent. 3
b) The brother- in - law Ravi Kiran Singapogu and co-sister Rachel Phelps Singapogu (foreigner) of the de-facto complainant have stayed in their house till 05.03.2012 and during the said period accused Nos.1 to 4 groomed and tutored the de-facto complainant how to raise and maintain funds from foreign organizations. In the meanwhile, the de-facto complainant came to know about the fraud and misappropriation done by accused Nos.1 to 4 under the name of their organization Hope Outreach Ministries. The de-facto complainant has noticed the fabrication of financial receipts and unfair method of diverting funds to their personnel properties and lavishes. Accused Nos.1 to 4 deceive the foreign organizations by providing them with false information of funding orphanages (which do not exist0 and helping poor.
c) While accused No.1 and de-facto complainant were supposed to fly on 15.03.2012 to USA, Accused Nos.2 and 3 have checked the baggage of the de-facto complainant on the pretext that accused No.3 has lost her belonging and made accusation against the de-facto complainant. Accused Nos.2 and 3 in the course of searching the baggage of the de-facto complainant have removed the gold articles presented at the time of marriage, food items prepared and given by the mother 4 of the de-facto complainant and especially accused No.3 has retained the marriage saree of the de-facto complainant and some of her important study certificates. Accused No.2 started imposing conditions from 10.03.2012 onwards that the de-facto complainant shall not take a job at USA, her passport has to be surrendered soon after landing in USA, she shall not hold any money in her hand, her wearing apparel should be formal and there shall be no communication from her to her family members, friends and relatives.
d) Accused No.1 has purchased the tickets for himself and de-facto complainant to go to USA but accused No.2 has collected the money spent for ticket from the father of the de-facto complainant, after the accused No.1 and de-facto complainant left to USA. The ideology of accused No.2 is to hold spiritual/holy bible and adopt all sorts of dubious methodologies only to lure innocent people and styling themselves to be pastors. Accused No.4 being a pastor used to dictate terms and directs the de-facto complainant to do all menial works and if not heeded to his version, he used to scold the de-facto complainant in filthy language. Accused No.2 insisted the de-facto complainant to explain and describe the day to day sexual life of the de-facto complainant and accused 5 No.1 and when the same was questioned, the de-facto complainant was forced to go back to India by withholding important documents like I 20 and I 94 with accused No.1, pre planning with an apprehension that she may come back to USA.
e) After couple of days, the cousin of de-facto complainant buy name Sunil Roberts and her natural brother went to accused No.1, who was rude and asked them to walk back. When Accused No.1 alone used to go to church, pastor has questioned accused No.1 about the de-facto complainant and on that accused No.1 replied that de-facto complainant is absconding and her whereabouts are not known to him. The de-facto complainant was in constant touch with accused No.1 through e-mail, wherein accused No.1 suggested to her to seek help from her mother rather than showing an interest to reconcile with him. On 08.05.2012 the de-facto complainant has sent an e-mail ventilating all her desire to resolve the issues. On 10.05.2012 accused No.1 has sent mail seeking time to give reply. On 20.05.2012 accused No.1 sent mail attributing fault on the part of the de-facto complainant, as if she has left his society. Though Mr. Joshua Benjamin and Smt. Radha Mathews tried to resolve the issues between accused and de-facto complainant, the accused bluntly refused to accept the 6 de-facto complainant for continuation of marital life. Mr.Bishop John Golapalli and Rev Jonathan Kalwala who happens to be friends of accused, have advised for mutual consent divorce a day before counseling at Woman Police Station, CCS, Hyderabad. Accused Nos.1, 2 and 4 have finally proposed the de-facto complainant to give a sum of Rs.20 lakhs fro continuing marital life for which the de-facto complainant and her parents agreed to give the same after six months on a condition that the de-facto complainant shall be taken to USA on a dependent visa. But accused No.1 refused to join the de-facto complainant. Accused Nos.2 to 4 have used most filthy language against the de-facto complainant and her parents for calling them to the police station for counseling. Accused No.1 stated that he won't give divorce to the de-facto complainant and also does not allow her to live with him.
3. Learned XIII Additional Chief Metropolitan Magistrate at Hyderabad has forwarded the said complaint under Section 156 (3) of the Code of Criminal procedure to the Woman Police Station, CCS, DD, Hyderabad. On the strength of the complaint, a case in Crime No.92 of 2016 was registered for the offence under Sections 498-A, 406, 420 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. After 7 completion of investigation, charge sheet is filed, the cognizance of which was taken as C.C.No. 724 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate at Hyderabad. Aggrieved by the same, the petitioners - accused Nos.1 to 4 have filed the criminal petition to quash C.C.No. 724 of 2016 against them on the following grounds:
i) The marriage of de-facto complainant and accused No.1 took place on 20.02.2012, joined the matrimonial house on 20.03.2012 and left for USA along with accused No.1 on 15.03.2012. Evidently she did not stay in the house of the in- laws at all.
ii) Admittedly, the de-facto complainant did not come back to the house of accused, after her return from USA in April, 2012. It took four years for the de-facto complainant to file complaint with the Police. At any point of time between 2012.2016, except on the date on which the Police have tried to counsel the parties, there was no demand for any dowry from the side of the accused, even as per the complaint.
iii) Accused No.3, who resides in USA for the past 10 years, has attended the marriage of accused No.1 with the de-facto complainant in the year 2012 and went back to USA and 8 thereby she is no way in contact with de-facto complainant either through telephone or emails.
iv) Admittedly, accused No.2 addressed an email to the de-facto complainant on 05.06.2012 and it was replied by the de-facto complainant on 20.06.2012. The contents of those two letters would go to prove the allegations made by the de-facto complainant against the accused as false, concocted and unbelievable. Even the contents of other mails transported between the de-facto complainant and pastor of Fairfax Baptist Temple, on which the de-facto complainant is relying, do not make out any case in favour of the de-facto complainant and nothing can be culled out from those letters against the petitioners.
v) Accused No.4 is a pastor and leading life on religious path but the de-facto complainant is trying to malign him by making false allegations against him by stating that he is manipulating the funds sent by foreign missionaries under the guise of running orphanage.
vi) The provisions of Dowry Prohibition Act are not attract as stray allegation has been made by the de-facto complainant that accused have demanded for Rs.20 lakhs in the year 2016 9 during the course of counseling by the Police. But there was no such allegation for the entire period between 2012.2016.
vii) When first petitioner stayed in India to have talks with de-facto complainant, she went to USA without informing the first petitioner, her in-laws or the elders of the church, who were trying to initiate talks in April, 2013. The de-facto complainant has changed her visa status without informing the petitioners.
viii) The de-facto complainant has been living in USA since four years there is no communication either from the de-facto complainant or from her parents.
4. Heard Sri Vedual Srinivas, learned senior counsel for the petitioners, Sri D.Rama Krishna, learned counsel for the respondent No. 2 - de-facto complainant as well as Sri S.Ganesh, learned Assistant Public Prosecutor.
5. Now the point for determination is:
"Whether proceedings against the petitioners in C.C.No.724 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate at Hyderabad, can be quashed under Section 482 of the Code of Criminal Procedure?10
6. The petitioners are charged for the offences under Sections 498-A, 406, 420 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
7. In order to fasten the criminal liability against the petitioners, the prosecution is expected to show that there is prima-facie case against the petitioners that they have committed the offence punishable under Section 498-A of the Indian Penal Code.
8. In State of Andhra Pradesh v. M.Madhusudhan Rao1, the Honourable Supreme Court held as follows:
"16. In order to appreciate the rival stands, it would be useful to notice the statutory provisions. Section 498-A I.P.C. makes "cruelty" by husband or his relative a punishable offence. The word "cruelty" is defined in the Explanation appended to the said Section. Section 498-A I.P.C. with Explanation reads thus:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be [1962] Supp 1 SCR 1 (2008) 15 Supreme Court Cases 582 11 104 (2004) 13 SCC 174 (2004) 10 SCC 570 (2004) 10 SCC 583 (2007) 3 SCC 755 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section, "cruelty" means--
(a) Any willful conduct which is 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 (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand."
17. Thus, providing a new dimension to the concept of "cruelty", clause (a) of Explanation to Section 498-A I.P.C. postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute "cruelty". Such wilful conduct, which is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amount to "cruelty". Clause (b) of the Explanation provides that harassment of the woman where such harassment is with a view to coercing 12 her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would also constitute "cruelty" for the purpose of Section 498-A I.P.C.
18. It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498- A I.P.C."
9. In Satish Shetty v. State of Karnataka2, the Hon'ble Supreme Court held as follows:
"16. On a plain reading of Section 498-A it transpires that if a married woman is subjected to cruelty by the husband or his relative, the offender 2 (2008) 15 Supreme Court Cases 582 13 is liable to be punished with the sentence indicated in the Section. But cruelty can be of different types and therefore what kind of cruelty would constitute offence has been defined under the explanation. As per first definition contained in clause (a) - it means a willful conduct of such a nature which is likely to drive the victim woman to commit suicide or to cause grave injuries to health and life, limb or health (mental or physical). The other definition of cruelty is in clause (b) and is attracted when a woman is harassed with a view to coercing her or any of her relation to meet any unlawful demand for any property or valuable security or is on account of failure to meet such demand."
10. Considering the rationale of the above authorities, it is clear that in order to fasten the criminal liability under Section 498-A of the Indian Penal Code, the prosecution is expected to place prima-facie material before the Court that accused No.1 and his relatives i.e., accused Nos. 2 to 4 have subjected the de- facto complainant with cruelty. Explanation under Section 498- A of the Indian Penal Code would go to show that the willful conduct of the accused, which causes injury, either to the physical or mental condition of the de-facto complainant falls within the definition of Section 498-A of the Indian Penal Code. 14
11. The de-facto complainant has narrated many incidents of harassment meted out on her in the hands of all accused. Accused No.2 is none other than the mother of accused No.1. In fact the de-facto complainant has made more allegations against accused No.2 than accused No.1. It is alleged that Accused No.2 has taken custody of wedding rings, she was not permitting the de-facto complainant to go to her bed and was entrusted with household work until midnight and thereby the de-facto complainant hardly used to get 3 or 4 hours of sleep per day, she was not even permitted to attend nature call without permission of accused No.2. Accused No.2 has imposed conditions on de-facto complainant from 10.03.2012 onwards stating that the de-facto complainant shall not take a job at USA, her passport has to be surrendered soon after landing in USA, she shall not hold any money in her hand, her wearing apparel should be formal and there shall be no communication from her to her family members, friends and relatives. Accused No.2 has gone to the extent of insisting the de-facto complainant to explain and describe the day to day sexual life of the de-facto complainant and accused No.1.
12. In the case on hand, the de-facto complainant in her complaint has clearly narrated with regard to the harassment 15 meted out by her in the hands of accused No.1 in India and also at USA. When accused No.1 and de-facto complainant went to USA, both of them stayed together for a period of one month and even in that one month period also she has narrated number of incidents, where accused No.1 has subjected her to cruelty.
13. The de-facto complainant, who was in touch with accused No.1 through e-mails tried to resolve the issues but accused No.1 always refused for the same by stating that unless she comes through his mother i.e., accused No.2, the issues cannot be resolved.
14. The contents of complaint, the statements of witnesses would reveal that the de-facto complainant was harassed by accused Nos.1 to 4, the de-facto complainant was restricted in accessing the internet, newspapers, mobile phone and that she was permitted to speak to her parents from the mobile phone of accused No.1, that too in the presence of accused by putting the speaker phone on. On the instigation of accused Nos.2 and 3, accused No.1 started harassing the de-facto complainant physically, mentally and economically. Accused Nos.2 and 3 used to put new demands on the de-facto complainant through 16 accused No.1. On the advice of accused Nos.2 and 3, accused No.1 used to harass de-facto complainant even at USA and booked a ticket for de-facto complainant to India and abruptly asked her to go to India without assigning any reason. After she came back to India also, the de-facto complainant tried to be in touch with accused No.1 through emails and she tried to reconcile with accused No.1 but he wanted that she has to reach him only through his mother i.e., accused No.2. When an attempt was made by persons from the church, still accused No.1 was not in a mood to accept the proposal.
15. As per the charge sheet, the Accused No.3 sister of accused No.1 was instrumental in harassing the de-facto complainant for not heeding to her version. Accused No.3 took the mango gold chain and retained the marriage saree of the de- facto complainant and so also her important study certificates, but accused No.1 remained silent.
16. It is alleged that Accused No.4 being a pastor used to dictate terms and directs the de-facto complainant to do all menial works and if not heeded to his version, he used to scold the de-facto complainant in filthy language, which cannot be described.
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17. It is also the case of the prosecution that Accused Nos.2 and 3 have demanded the de-facto complainant to get gifts from her parents and accordingly gifts were arranged to them, even though, both of them were not happy. Accused Nos. 2 and 3 have directed the de-facto complainant to shorten her hair and after engagement, they have shortened her hair against her will. When accused No.1 and de-facto complainant were supposed to fly on 15.03.2012 to USA, Accused Nos.2 and 3 have checked the baggage of the de-facto complainant on the pretext that accused No.3 has lost her belonging and made allegation against the de-facto complainant. Accused Nos.2 and 3 during the course of searching the baggage of the de-facto complainant have removed the gold articles presented at the time of marriage, food items prepared and given by the mother of the de-facto complainant.
18. The harassment of accused Nos.1 to 4 intensified day by day. When de-facto complainant was running temperature with cold and cough, she was asked to go to her home till she is recovered. Accused Nos.1 to 4 deceived the foreign organizations by providing them with false information of funding orphanages (which do not exist) and helping poor. 18
19. After reaching India, none of the persons from the family of accused came to airport and thereby the de-facto complainant along with her parents went to their house. Subsequently, emails were exchanged between the de-facto complainant and accused No.1. Members of the church have made an attempt to resolve the issues between accused No.1 and de-facto complainant and also advised accused No.1 for settlement.
20. Accused Nos.1, 2 and 4 have finally demanded the de- facto complainant to give a sum of Rs.20 lakhs for continuing marital life. Accused No.1 stated that he won't give divorce to the de-facto complainant and also does not allow her to live with him.
21. On going through the entire narration of the de-facto complainant in the complaint and also the investigation of the Police in the form of charge sheet, it is clear that all the accused have harassed the de-facto complainant. On considering all the above allegations, it is clear that there is prima - facie case against the petitioners.
22. As seen from the charge sheet, the Police during the course of investigation have examined the de-facto complainant, her parents and one independent witness. The petitioners have 19 not filed copies of the statement of witnesses i.e., LWs 1 to 4. The statements of witnesses recorded under Section 161 of the Code of Criminal Procedure are relevant in order to consider allegations leveled against the petitioners. In the absence of such statements before this Court, the gist of the statements in the form of charge sheet is only the basis to consider that all the witnesses have spoken against the petitioners as gist of the charge sheet goes to show that all the four accused have harassed the de-facto complainant mentally and physically.
23. Learned senior counsel for the petitioners has submitted that even if the contents of allegations leveled against the petitioners in the charge sheet are stated to be correct, the de-facto complainant has stayed in India only for few days, prior to leaving USA thereby there was no possibility of accused Nos.1 to 4 to harass the de-facto complainant. It is true that after marriage, the de-facto complainant and accused No.1 went to USA on 15.03.2012 and de-facto complainant has stayed in India along with accused only for few days. But as seen from the contents of complaint, charge sheet, the de-facto complainant has narrated all the incidents and various kinds of harassment by accused Nos.1 to 4 when she was in India prior to she left to 20 USA. The truth or otherwise of those allegations will be subject matter of trial before the trial Court.
24. It is submitted by the learned senior counsel for the petitioners that even if the contents of the allegations leveled against the petitioners are accepted, there is a huge delay in filing the complaint. Question arises as to why de-facto complainant could not complaint prior to leaving the country. The de-facto complainant was specific that even after going to USA also accused No.1 continued to harass her. It is to be noted that the de-facto complainant came to India within one month and even after that she has tried to reconcile with accused No.1 and she was in touch with accused No.1 through emails but ultimately as accused No.1 wanted resolution to be done only through his mother i.e., accused No.2, efforts could not be materialized. The de-facto complainant also given an explanation as to why she could not file complaint immediately. She has stated that prior to leaving to USA, since she being newly married wife of accused No.1, even though accused persons were harassing her, she does not want to spoil her marital life and thereby she did not file complaint. It is true that most of the allegations leveled against the petitioners by the de-facto complainant are prior to de-facto complainant 21 leaving to USA. It is to be noted that in most of the matrimonial issues, alleged harassment period will not be for a shorter period. In almost all the cases, the alleged harassment starts and continues for a longer period until complaint is filed before the Police. During the said interregnum period for some time, wife would keeps quiet and will not inform about the alleged harassment to anybody including the parents and Police with hope that the husband and relatives would change their attitude and if harassment continues then the victim will inform her parents and close relatives and all of them try to reconcile and patch up the disputes. After exhausting all the remedies including reconciliation, then the complaint would be filed before the Police. Therefore, in a case like this, delay in filing the complaint will not in any way affect the case of the prosecution. However, the petitioners can certainly canvas all these aspects before the trial Court at appropriate time.
25. Learned senior counsel for the petitioners has relied upon authority in Chandralekha and others v. State of Rajasthan and another3, wherein the Hon'ble Supreme Court held as follows:
3
(2008) 15 Supreme Court Cases 582 22 "We must, at the outset, state that the High Court's view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her 23 husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3."
In the case on hand, the de-facto complainant has not made reckless, vague and omnibus allegations against the petitioners. Since she has categorically narrated each and every overt act committed by each of the petitioners, rationale of above said citation is not applicable to the facts of the case on hand.
26. In order to consider an application under Section 482 of the Code of Criminal Procedure, the petitioners are expected to prove that even if all the contents of charge sheet, and complaint are accepted to be true, there shall not be any case against the petitioners on the face of the record. All the defences put forth by the petitioners cannot be considered at this stage to see whether the case against the petitioners can be quashed. It is enough for this Court to decline the relief of the petitioners, in case, if there is prima-facie material against the petitioners to show that the accused persons have harassed the de-facto complainant.
24
27. As already discussed, there is a strong prima-facie material against the accused to show that there are ingredients for the offence under Section 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
28. The petitioners were also charged for the offences under Sections 420 and 406 of the Indian Penal Code. It has become a practice that whenever conflicts arises between the wife and husband, the family members of the de-facto complainant not only file complaint under Section 498-A of the Indian Penal Code but also under the provisions of Sections 406 and 420 of the Indian Penal Code. In almost all the cases of harassment by husband and his family members, there cannot be ingredients for alleging that husband and his family members have committed the offences punishable under Sections 420 and 406 of the Indian Penal Code.
29. In Vijay Kumar Ghai and others vs. The State of West Bengal and others4 the Hon'ble Supreme Court held at paragraphs 31 to 36 as under:
"31. Section 415 IPC defines "cheating" which reads as under:
4 (2022) 7 SCC 124 25 "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"." 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 26 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."
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 27 739 : (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
(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."
30. The de-facto complainant failed to establish that since the inception i.e., prior to her marriage with accused No.1, the accused have dishonest intention to cheat the de-facto complainant.
31. Similarly in the matrimonial relationship of husband and wife, there will not be any entrustment of property by wife in favour of the husband and that the husband has misappropriated the same. In fact, the relationship of the husband and wife will survive on the trust between the parties and not on the entrustment of the properties.
32. In order to attract the offence under Section 406 IPC, the prosecution is expected to establish the following ingredients: 28
a) The accused must be entrusted with property or with the dominion power over that property.
b) The person entrusted must dishonestly misappropriate or converted the property for his own use.
c) The person entrusted dishonestly used or dispose of the property or willfully suffer any person to do so.
33. Though the Police have filed charge sheet against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code, there is no material to show that the acts or omissions on the part of the petitioners constitute the offences under Sections 406 and 420 of the Indian Penal Code.
34. As seen from the record, there are many factual issues involved in this case, which are to be dealt with by the trial Court after full-fledged trial but not at this premature stage, more particularly in a petition filed under Section 482 of the Code of Criminal Procedure. In Rajib Ranjan and others v. R.Vijaykumar5, the Hon'ble Supreme Court held as follows:
"19. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1, the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words:
5 (2015) 1 Supreme court Cases 513 29 "23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.
Discussion of decided cases
25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the 30 same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.
46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal 31 position, the impugned judgment cannot be sustained."
35. The Hon'ble Supreme Court in a celebrated judgment decided between State of Haryana and others vs. Ch. Bhajan Lal and others6, has formulated certain guidelines under which Court can consider quashment of criminal case. The guidelines are:
"(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the 6 1992 AIR 604 32 institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
36. In view of the principle laid down in the above referred authorities, it is clear that though inherent jurisdiction of the High Courts under Section 482 of the Code of Criminal Procedure is wide, such power has to be exercised sparingly, carefully and with caution.
37. As discussed above, since there are no allegations against the petitioners-accused for the offences under Sections 420 and 406 of the Indian Penal Code, the charge sheet against the petitioners for the offences under Sections 420 and 406 of the Indian Penal Code cannot be proceeded with. However, since there is prima-facie material against accused Nos.1 to 4 for the offences under Sections 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, the trial Court is directed to proceed against the petitioners-accused Nos.1 to 4 for the offence under Sections 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act only, 33 uninfluenced by the observations and comments made by this Court in this order.
38. Further, the presence of the petitioners-accused Nos.1 to 4 before the trial court in C.C.No.724 of 2016 on the file of learned XIII Additional Chief Metropolitan Magistrate at Hyderabad is dispensed with, however, the learned Magistrate is at liberty to direct the petitioners to be present for smooth progress of the trial including answering the cahtges and examination of the petitioners - accused under Section 313 of the Code of Criminal Procedure etc. As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 27.10.2022 AS