Anil Sharma And Ors. vs S.N. Marwaha And Anr.
1994 Latest Caselaw 545 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, challenging the legality of the order of the Metropolitan Magistrate summoning the petitioner on the basis of complaint filed by the complainant under Sections 420 and 120B, of the Indian Penal Code.

(2) Brief facts necessary to dispose of this petition are recapitulated hereinunder. Respondent No.1 filed a complaint under Sections 420 and 120B, against the petitioners in December, 1992. In the complaint, it is incorporated that the complainant had been in search of a match for his daughter Ms. Poonam. The complainant came across the matrimonial advertisement in Hindustan Times daily (English) dated 26th March, 1989. In pursuance of that advertisement, negotiations were carried on. Accused no.3, the father of the boy sent a reply. The advertisement showed that the boy was a divorcee. There was no mention of any child from the first marriage. The advertisement is reproduced as under :- "NEWS Item (HINDUSTAN Times Dated 26.3.1989) Punjabi Brahmin, 30/170/5,500, legally divorced boy looking for suitable beautiful girl. Apply immediately with full details. No caste. Simply marriage. Box 119437/CA, Hindustan Times, New Delhi- 110001."

(3) The bio-data of .accused no.5, was sent by his father, accused no.3 to the complainant. The complainant suggested to accused persons to visit the house of the complainant for further negotiations. According to the complainant, accused No.3 and 4 visited the house of the complainant in the last week of April, 1989 and they saw the girl and showed papers of earlier decree of divorce of the boy to the complainant. The papers did not have any reference to any child from the first marriage. The main grievance of the complainant is that Sanjeev Tandon, accused no.5 and other accused withheld this vital fact that there was a child from the first marriage. Because of withholding of this information, the complainant was cheated. The accused are guilty of concealing this fact knowing fully well that there Was a child from the earlier marriage, who was studying at Delhi. According to the complainant, they all intentionally concealed this fact to cheat the complainant and spoil the life of his daughter. All of them are conspirators to the cheating.

(4) It is also mentioned in the complaint that on 5th August, 1994, one Ms. Rashmi came to the house of the daughter of the complainant at Ludhiana and told her that she was the first wife of Shri Sanjeev Tandon and that they had a son and she had come to see her husband as he had not turned up for the last three/four days to her house. She further disclosed that Sanjeev Tandon was still meeting her and even living with her. Thereafter, the daughter of the complainant was able to connect why her husband used to go out on the pretext of business. It was a big shock to the complainant's daughter. On enquiry from the accused, they did not disclose about the birth of the boy out of the first marriage.

(5) The present order of summoning has been challenged by accused nos. 1 to 4 in the complaint. Except Sanjeev Tandon, all other accused have preferred this petition on the ground that the order of summoning the petitioners was casual, perfunctory and has been passed in a mechanical manner without any application of mind.

(6) It is also submitted that criminal prosecution is not to be used for harassment. It is also submitted that the Metropolitan Magistrate before issuing summons has to examine the material to ascertain the existence of the basic ingredients of the offence charged and to the applicability of the facts with regard to each individual.

(7) It is mentioned that there is an unexplained delay in lodging complaint of almost three and a half years after the complainant's daughter gained knowledge of the alleged concealment of the fact of birth of the child from the former marriage of Sanjeev Tandon. Besides, such a fact even if concealed, could not attract the provisions of Sections 415, 417, Indian Penal Code much less an offence under Section 420, I.P.C. It has been argued on behalf of the petitioners that even if all the averments of the complaint are accepted as correct, even then no offence under Section 420 Ipc can be made out as much as the complainant was neither made to part with the property nor was made to make, alter or destroy whole or any part of the valuable security or anything which is signed or sealed and which is capable of being converted into valuable properties. These are expressions which have been used in Section 420 of the Indian Penal Code. Mr. Mathur, learned counsel for the petitioners submitted that by no stretch of imagination, an offence under Section 420 is made out. It would be appropriate to reproduce Section 420 of the Code : "420.Cheating and dishonestly inducing delivery of property: Whoever cheats and 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."

(8) According to the basic ingredients of Section 420, the act of cheating means that if by an act any person dishonestly induces the person deceived to deliver any property to any person then he would be guilty u/s 420 Indian Penal Code In the instant case, there is no question of delivery of any property to any person or to make, alter or destroy the whole or any part of the valuable security. He further submitted that this is not the case where property has been altered or destroyed the whole or any part of the valuable security. Therefore, on the bare reading of the complaint, in toto, no offence u/s 420 Indian Penal Code can be made out against the petitioners on the basis of the averments of the complaint.

(9) Mr. Mathur, learned counsel for the petitioners further submitted that though no offence u/s 417, Indian Penal Code is also made, but even if any offence u/s 417 Indian Penal Code is made out, then, the complainant is barred by limitation. Sections 415 and 417 are also reproduced. The punishment of the offence u/s 415 is provided in Section 417 I.P.C. "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". "417.Punishment for cheating-Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year or with fine or with both."

(10) Learned counsel invited my attention to Section 468 of the Code of Criminal Procedure, wherein Section 468(1)(b) clearly mentions that offence under said section is punishable for a term of imprisonment not exceeding one year, in that event, the complaint has to be filed within one year. Section 468 of the Code of Criminal Procedure is reproduced as under :- "468.Bar to taking cognizance after lapse of the period of limitation"- (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- a) six months, if the offence is punishable with fine only; b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

(11) The legislative intention is clear and explicit that if offence u/s 417 of Indian Penal Code is committed, then the complaint has to be filed within one year. According to Section 415 Ipc, a dishonest concealment of fact is a deception within the meaning of Section 415 IPC.

(12) The learned counsel invited my attention to Section 22 to 25 of the Indian Penal Code. Section 22 defines 'movable property'. Section 23 defines 'wrongful gain' and 'wrongful loss' and Section 24 defines 'dishonestly' and Section 25 defines 'fraudulently'. For appreciation of the entire controversy involved herein, Section 22 to 25 are also reproduced hereinbelow:- "22. Movable property"-The words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. 23. "Wrongful gain"-Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully. Losing wrongfully-A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. 24. "Dishonestly"-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly." 25. "Fraudulently"-A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

(13) It has been submitted by the learned counsel for the petitioners that Section 420 Indian Penal Code cannot be attracted in the facts and circumstances of this case. The word "dishonestly" would be attracted when any person with the intention of causing wrongful gain to himself or wrongful loss to any person is said to do that thing dishonestly. In the instant case, even on the basis of averments of the complaint, there is no wrongful gain to any person or wrongful loss to any person. At the most, it can be a case under Section 417 Indian Penal Code because if the accused had done any- thing to defraud the complainant or his daughter, then it would be covered u/s 417 and not Section 420, IPC.

(14) In the complaint, it is incorporated that the complainant's daughter came to know about the fact of alleged concealment on 5th August, 1989. Even after gaining the knowledge, the complainant allowed his daughter to stay with Sanjeev Tandon, accused no.5 and his parents.

(15) The other significant aspect is that a child was born out of this wedlock on 23rd October, 1990. Obviously, the complainant's daughter conceived after 5th August, 1989, the date of knowledge of the fact of alleged concealment. It is further submitted by learned counsel for the petitioners that there has to be fraudulent and dishonest inducement of the person by deceiving him. In the instant case, there is no such fraudulent or dishonest inducement. Learned counsel further submitted that by no stretch of imagination, the ingredients of Section 420, Indian Penal Code are made out in the instant case. Even ingredients of Section 415 Indian Penal Code are also not made out because in Section 415 Indian Penal Code in the concluding part of the Section, the following words are used, "and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is slid to "cheat". In the instant case, even from the averments of the complaint, none of the ingredients of Section 420 Indian Penal Code have either been incorporated or made out from the averments of the complaint.

(16) Learned counsel for the petitioners submitted that the so-called bio-data is without the signature of any of the accused and it is a document which has been fraudulently manufactured to make out a case u/s 120B of the Indian Penal Code. No one has been produced to prove, as to who gave the bio-data and how and when it came into existence.

(17) Learned counsel for the petitioners has mentioned that Anil Sharma is the brother-in-law and Suman Sharma is sister of accused no.5 Sanjeev Tandon, is the son-in-law of the complainant and accused no.3 and 4 are respectively parents of accused no.5. It seems that all members of the family have been dragged in the case for extraneous considerations. As a matter of fact, respondent no.1 and 2 were not living in the same town were previously in Ludhiana and now they are living in Chandigarh, so how can the petitioners be implicated. The entire complaint has been filed for extraneous considerations and all proceedings which have been initiated against the petitioners are liable to be quashed.

(18) Learned counsel has placed reliance on State (Delhi Administration) vs. Anil Puri and others, I.L.R. (Delhi), (Vol.2) 1979. 350. In this case, it has been laid down that once a limitation is barred in favor of a person, he acquires a valuable right. This right cannot be taken away under the law.

(19) Learned counsel for the petitioners also relied upon Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others . In this case, their Lordships of the Supreme Court have given the guidelines indicating that in following cases, the order of the Magistrate issuing process against the accused can be quashed or set aside. "(1)Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

(20) Learned counsel has also placed reliance on Punjab National Bank and others vs. Surendra Prasad Sinha, . In this case, their Lordships of the Supreme Court have laid down that : "JUDICIAL process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it. would be an instrument in the hands of private complainant as vendetta harass the persons needlessly."

(21) This Court issued notice on the petitioners' application under Section 482 of the Code of Criminal Procedure, for quashing the complaint, and a detailed reply has been filed on behalf of respondent No.1/ complainant. He has taken the preliminary objection that the petitioners are guilty of concealment of fact because the petitioners along with Sanjeev Tandon have filed revision in the court of Sessions Judge, Delhi which was decided by the Additional Sessions Judge's order dated' 4th May, 1993 and the petitioner was not entitled to claim any relief from the court. Since the revision petition has been decided by the Addl. Sessions Judge, therefore, the second revision petition in the garb of this petition is not maintainable. The Counsel for the complainant has submitted that the order of summoning cannot be lightly interfered by this court. He further submitted that whether an offence u/s 420 or 120B is made out or not, that would be seen after the evidence is led in this case. He placed reliance on the judgment of Sadhu Ram vs. Kishan Kumar 1987 (2) Recent Criminal Reports, 611. In this case, father of the boy concealed the fact that boy was suffering from mental disorder. It was held that a case of cheating against the father is made out.

(22) Learned counsel for the respondent also cited another case Smt. Renu Vohra and another vs. Shreyans Paper Mills Ltd.. 1993 (2) R.C.R. 444. In this case, it has been laid down that inherent powers of the court can be exercised only when there is no express provision on the subject.

(23) The short question which arises and needs to be answered in this case is whether the learned Metropolitan Magistrate was justified in issuing process on the complaint filed by the complainant. It is a settled position of law which has now been crystallized by a large number of judgments of their Lordships of the Supreme Court and of various High Courts. By bare reading of the complaint if no ingredients of the offence are not made out, then the court could not be justified in issuing the process. The order of issuing process ought to be passed after taking extreme care and caution. This is so because serious consequences, implications and repercussions follow on passing such an order and the accused have to undergo the rigmarole of a long drawn criminal trial. That may mean tremendous harassment of years. Before I advert to this aspect of the matter, I would like to decide the preliminary objection which has been taken by learned counsel appearing for respondent no. I, the complainant.

(24) The Judgment of the Addl. Sessions Judge dated 4th May, 1993 clearly indicates that though the revision petition before that court has been filed on behalf of all the five accused but the revision petition was signed only by accused no.5 Sanjeev Kumar Tandon and only accused no.5 Sanjeev Tandon had signed Vakalatnama (Power of Attorney) in favor of Mr. S.K. Sharma, Advocate and Company but other accused did not sign the vakalatnama in the said case

(25) The learned Additional Sessions Judge has clearly mentioned in the very first paragraph that the revision can, therefore, be treated as a petition filed by accused no.5, Sanjeev Kumar Tandon only. In the concluding portion of the judgment, he has further indicated that the revision petition on behalf of petitioners I to 4 is not maintainable.

(26) In this view of the matter, I do not find any merit in the preliminary objection of the respondent no. I because revision petition before the Addl. Sessions Judge was though filed by all the accused, was treated only on behalf of accused no.5, S.K. Tandon and no one else. In these circumstances, the other four accused (who are petitioners I to 4 in this petition) are totally justified in filing this petition under Section 482 of the Code of Criminal Procedure for quashing the order of the Metropolitan Magistrate by which he had issued the process.

(27) Now, I would like to advert to the threshold submission .of the petitioners that even if all the averments of the complaint are assumed to be correct even then no offences under Section 420 or 417 and 120B are made out against the petitioners. The only allegation in the complaint regarding the petitioners no.1 and 2 Anil Sharma and Suman Sharma is that they concealed the fact of a child from the first marriage of Sanjeev Tandon. Admittedly they did not live there. Similarly, the only averment which has been mentioned against accused no.3 and 4 is that they did not disclose the fact of the existence of the child of Sanjeev Tandon out of the first marriage.

(28) Even after reading the complaint as a whole, no ingredients of Sections 420 and 120B, Indian Penal Code are made out against the petitioners. Not only in law but in equity also, the complainant's complaint is devoid of any merit for the simple reason that the complainant's daughter had learnt on 5th August, 1989 that accused No.5 had a male child from first marriage even then the complaint in this case was filed sometimes in December, 1992, that seriously reflects on the bonafides of the complaint.

(29) Another significant fact which also casts serious reflection on the bona fides of the complainant is that sometimes in October, 1990, a child was born. The child was obviously conceived by the daughter of the complainant after 5th August, 1989 (date of the knowledge regarding child from first marriage). "The complaint has been filed admittedly after 3 years of the date of knowledge.

(30) The present petitioners have unnecessarily been dragged in this complaint by the complainant. Even on the basis of averments mentioned in the complaint, no offence under Section 420 and 120B, Indian Penal Code are made out against the petitioners. The complaint has been filed for causing unnecessary harassment and humiliation of the petitioners. Judicial process ought not to be permitted as an instrument of oppression and needless harassment as observed by their Lordships of the Supreme Court in the Punjab National Bank's case (supra). The fast developing tendency of falsely implicating all members of the family in criminal cases must be deprecated and effectively curbed. Permitting such complaints to proceed in the court would clearly amount to total abuse of the process of the court for extraneous considerations.

(31) After taking into account totality of the facts and circumstances, in the interest of justice, I deem it appropriate to set aside the order dated 20th February, 1993 passed by the Metropolitan Magistrate, New Delhi under Sections 420/120B, Indian Penal Code . in respect of the petitioners.

(32) The petition is accordingly allowed and the complaint filed by the respondents u/s 420/120B, Indian Penal Code and proceedings pending before the concerned Metropolitan Magistrate are hereby quashed as far as petitioners are concerned.

(33) The petition is allowed and accordingly disposed of.