Brijveer Singh And Another vs State Of U.P. And Another
2017 Latest Caselaw 1750 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 24.04.2017
 
Delivered on 03.07.2017
 
Court No. - 2 
 
Case :- APPLICATION U/S 482 No. - 12190 of 2017 
 
Applicant :- Brijveer Singh And Another 
 
Opposite Party :- State Of U.P. And Another 
 
Counsel for Applicant :- M.P. Srivastava,Sunil Kumar Singh 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble Surya Prakash Kesarwani,J. 

1. Heard Sri M.P. Srivastava, learned counsel for the applicant and the learned A.G.A. for opposite party no.1 and Sri Rahul Mishra, learned counsel for opposite party no.2 who has put in appearance today.

2. This application under Section 482 Cr.P.C. has been filed praying to quash the entire proceedings of Complaint Case No. 564 of 2015 (Smt. Rachita Dhama Vs. Ankit Chaudhari & others) under Sections 406, 506 I.P.C., P.S. Sadar Bazar, District Meerut as well as the summoning order dated 30.11.2016 passed by the Addl. Chief Judicial Magistrate-III, Meerut.

3. With consent of learned counsel for the parties, this application is being finally heard without calling for a counter affidavit.

Facts :-

4. Briefly stated facts of the present case are that the opposite party No.2 was married on 05.04.2012 with the son of applicant nos. 1 and 2, namely, Sri Ankit Chaudhari. It appears that their matrimonial relationship had deteriorated. The aforesaid Ankit Chaudhari obtained a decree of dissolution of marriage in United States. That decree was declared null and void by ex parte judgment dated 22.5.2015 passed by the Additional Principal Judge, Family Court, Meerut in Case No. 1207 of 2014. The aforesaid case No.1207 of 2014 was decreed ex parte for Stridhan of Rs.35 lacs to be paid by the aforesaid Ankit Chaudhari to the opposite party no.2 within 30 days. That apart aforesaid Sri Ankit Chaudhari was restrained to remarry till the aforesaid Stridhan is returned to the opposite party No.2.

5. The opposite party No.2 also filed a complaint case No.564 of 2015 (Smt. Rachita Dhama Vs. Ankit Chaudhari & others) against her husband, namely, Sri Ankit Chaudhari as opposite party No.1 and the present applicants as opposite party nos. 2 and 3 under Section 406, 506 I.P.C.. In the said complaint case summoning order was passed which was challenged by the present applicants in application under Section 482 No. 25387 of 2016 and the application was allowed by order of this Court dated 29.8.2016, remitting back the matter to the Court below with direction to pass an order afresh in accordance with law. Now, the Court below has passed the impugned order dated 30.11.2016, whereby Sri Ankit Chaudhary has been summoned under Section 406 I.P.C. and the present applicants have been summoned under Sections 406, 506 I.P.C.

6. Aggrieved with this order, the applicants have filed the present application praying to quash the summoning order dated 30.11.2016.

Submissions:-

7. Learned counsel for the applicants submits that the applicants are merely parents of the husband of the opposite party No.2 and in respect of the subject matter of the complaint case No. 564 of 2015, a decree by a Civil Court in case No.1207 of 2014 has already been passed by the Court of Additional Principal Judge, Family Court, Meerut on 22.5.2015 against the husband Sri Ankit Chaudhari and as such there is no basis for summoning the applicants for the alleged offence. It is further submitted that said case No.1207 of 2014 was filed by the opposite party No.2 only against her husband, namely, Sri Ankit Chaudhary and the present applicants are not even party in that case. He submits that since the husband of opposite party no.2 is residing in America and the opposite party no.2, complainant is residing at Newzealand and, therefore, to harass the present applicants, namely, the old parents of Sri Ankit Chaudhary, the opposite party No.2 has filed the complaint case no. 564 of 2015 which is evidently an abuse of process of Court. He further submits that complaint itself was not entertainable in view of the provision of Sections 40, 43 and 115 of the Indian Evidence Act. He also referred to the pleadings made in paragraph 12,13,14,15, 16, 17 and 18 of the affidavit accompanying the application.

8. Sri Rahul Misra, learned counsel for the opposite party No.2 submits that from bare reading of the complaint, an offence under Section 406 and 506 has been prima facie made out against the present applicants. He refers to paras 5, 6 and 18 of the complaint as well as the evidence of the opposite party no.2 recorded under Section 200 Cr.P.C. and the evidence of witness under Section 202 Cr.P.C., namely, Sri Narendra Pal Singh (Nana of the opposite party No.2). He submits that earlier summoning order was quashed by this Court on the ground that it was a non speaking order, passed without application of judicial mind. He submits that now the impugned order has been passed after well examining the complaint and the evidences on record. He submits that such an order meets the requirements under Section 204 Cr.P.C. and does not suffer from any infirmity. He submits that whether evidences are sufficient to establish the commission of offence or not, is the matter which can not be looked into at the stage of summoning of the accused rather the same can be looked into at the time of trial. With respect to the commission of offence on account of custody of the articles of worth Rs.35 lacs and refusal by the applicants to return the same to the opposite party No.2 even on demand, he referred to paragraph 5, 6 and 15 of the complaint and the judgment of Hon'ble Supreme Court in the case of Pratibha Rani Vs. Suraj Kumar, A.I.R. 1985 SC 628 (paras 18, 19 and 57).

9. He draws the attention of the Court towards paragraph 11 of the complaint in case No.1207 of 2014 filed in the Court of Principal Judge, Family Court Meerut to support his submissions that even in the said complaint an allegation was made by the opposite party no.2 that the entire gifts worth about Rs.25 lacs received by the opposite party no.2 at the time of Muhn Dikhai were handed over by her to her husband at Bijnore and thereafter she came and jewellery were give by her husband to her mother. He also relied upon a judgment of Hon'ble Supreme Court in the case of Kirendar Sarkar Vs. State of Assam 2009 12 SCC 342 (para 6) for the proposition that F.I.R. is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events and therefore, when essentially material facts are disclosed in the F.I.R. that is sufficient.

10. It is further submitted that no execution case has been filed by the opposite party no.2 for execution of the aforesaid ex parte decree of the Principal Judge, Family Court dated 22.5.2015.

Discussion and Findings:-

11. From the facts and submissions, as noted above, it is clear that the opposite party no. 2 and her husband Sri Ankit Chaudhari are highly educated and are living abroad. While the husband Sri Ankit Chaudhari is in service in America, the opposite party no. 2/ complainant is in New Zealand. Only the unfortunate old parents of the husband of opposite party no. 2 i.e. the applicants herein are residing in India who have been summoned under Sections 406 and 506 IPC.

12. Undisputedly the Suit No. 1207 of 2014 was filed by opposite party no. 2 which was decreed by ex-parte judgment and order dated 22.05.2015 passed by Additional Principal Judge, Family Court, Meerut, whereby, the decree of dissolution of marriage obtained by the husband Sri Ankit Chaudhari from a Court in United States, was declared null and void and the suit was decreed for Rs. 35 lacs. The applicants herein were not even a party in the aforesaid Suit No. 1207 of 2014. The opposite party no. 2 has not filed any execution case for execution of aforesaid decree passed by the Additional Principal Judge, Family Court, Meerut in Suit No. 1207 of 2014, instead she filed the Complaint Case No. 564/9 of 2015 against the applicants herein and her husband in which the applicants have been summoned by the impugned order dated 30.11.2016 under Sections 406 and 506 IPC. The allegation in the complaint is that the opposite party no. 2 has received costly utensils, clothes, furniture, jewellery, electronic goods, kitchen appliances etc. valued about Rs. 10 lacs and jewellery and other stree dhan of Rs. 25 lacs in Muh Dikhai which were entrusted by her to her husband but in her absence he entrusted it to his mother namely the applicant no. 2. The allegation so made is not even supported by the statement of the complainant/ opposite party no. 2 dated 21.09.2015 in which she alleged that she has handed over cash and goods of Rs. 10 lacs and Rs. 25 lacs to the applicants herein after marriage when she went to Bijnor and thereafter, she returned to New Zealand on 21.04.2012. It is relevant to note that in paras 10 and 11 of the plaint of Suit No. 1207 of 2014, the opposite party no. 2 has made allegation only against her husband that she had entrusted the aforesaid goods and cash to her husband at Bijnor, who, in her absence has given it to his mother. In para 12 of the aforesaid plaint, the opposite party no. 2 has stated that she is citizen of New Zealand. Allegation of keeping the aforesaid gifts of Rs. 10 lacs has been made in para 13 of the aforesaid plaint with further allegation that these gifts were kept by her husband with him at New Zealand. In para 16 of the aforesaid plaint the opposite party no. 2 has specifically stated that her husband has kept her stree dhan of about Rs. 35 lacs with him which she is entitled to get. On the basis of these allegations made in the aforesaid plaint, the opposite party no. 2 has obtained the aforesaid ex-parte judgment and decree dated 22.05.2015 in Suit No. 1207 of 2014. The allegations made by opposite party no. 2 in the complaint case are apparently false and in contradiction to her own statement of facts in Suit No. 1207 of 2014. Even in her statement, she made a different allegation than the allegations made in the complaint. In para 17 of the complaint she alleged that stree dhan approximately Rs. 10 and 25 lacs was entrusted by her to her husband Ankit Chaudhari who has handed over it to applicant no. 1 herein and out of which some jewellery was returned by the applicant no. 1 herein to her maternal uncle and maternal grand father. Thus, there is absolutely no allegation against the applicant no. 2 herein i.e. the mother in law. That apart, the opposite party no. 2 has not given any details of articles or the currency which she alleged to have entrusted to her husband. The allegations are completely vague. No particulars have been submitted that which of the alleged jewelleries were received by her through her maternal uncle and maternal grand father, from the applicant no. 1 herein. The entire allegation appears to have been made falsely with sole intent to implicate and harass the applicants herein by abusing the process of court.

13. In the case of State of Haryana Vs. Bhajan Lal 1992 Sup (1) SCC 335 (para 102), Hon'ble Supreme Court has held as under:

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the firsts 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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 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.

(7) Where a criminal proceeding is manifestly attended with malafide 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."

14. In the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 (1) SCC 122 (paras 9 and 10) Hon'ble Supreme Court has held as under:

"9. In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death."

15. It is well settled law that if the complaint does not disclose any offence or is frivolous, vexatious or oppressive then the court would be justified to interfere and quash the proceedings under Section 482 Cr.P.C. The guiding factors in this regard are given in Section 482 Cr.P.C. itself which clearly provides for interference by High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any court or otherwise to secure the ends of justice. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in the case of Dr. Monica Kumar & Anr Vs. State of U.P. & Ors (2008) 8 SCC 781; S. Krishnamoorthy Vs. Chellammal (2015) 14 SCC 559 and R.P. Kapur Vs. State of Punjab AIR 1960 SC 886.

16. In view of the discussions made above, I have no hesitation to hold that the complaint case filed by opposite party no. 2 against the applicants herein is manifestly attended with malafides. The aforesaid criminal proceeding has been maliciously initiated with an ulterior motive for wreaking the vengeance on the accused with a view to spite them due to private and personal grudge.

17. In view of the above discussions, the entire proceedings of Complaint Case No. 564/9 of 2015 (Smt. Rachita Dhama Vs. Ankit Chaudhari & others) under Sections 406, 506 I.P.C., P.S. Sadar Bazar, District Meerut including the summoning order dated 30.11.2016 passed by the Addl. Chief Judicial Magistrate-III, Meerut to the extent it relates to the applicants herein, is quashed.

18. The application is allowed.

Order Date :- 03.07.2017

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