Delhi High Court

Sumati vs Sarla Puri on 9 February, 2009

Author: S. Muralidhar

 IN THE HIGH COURT OF DELHI AT NEW DELHI

       CRL M C 1808/2008 & Crl M A 6587, 6589/2008

       SUMATI                             .... PETITIONER
                    Through: Mr. Pawan Kumar, Advocate


                          Versus

       SARLA PURI                          ... RESPONDENT
                          Through Mr. G.D. Gandhi, Advocate

       CORAM
       HON'BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be
    allowed to see the judgment?                      No
2. To be referred to the Reporter or not?             Yes
3. Whether the judgment should be reported in         Yes
   Digest?

                          ORDER

09.02.2009

1. This is a petition under Section 482 of the Code of Criminal

Procedure 1973 („CrPC‟) seeking the setting aside of an order

dated 29th June 2007 passed by the learned Additional Sessions

Judge („ASJ‟), Delhi in Criminal (R) No. 2 of 2006 whereby the

order dated 4th July 2007 passed by the learned Metropolitan

Magistrate („MM‟), Delhi dismissing the criminal complaint of

the respondent was reversed.

2. The facts leading of the filing of the present petition are that

the marriage between the Petitioner and son of the Respondent

was solemnized on 11th March 1999. Consequent upon disputes

between the parties that arose soon thereafter, the father of the

Petitioner filed a complaint against the Respondent and her

family members on 24th Jun 1999 in the Crime Against Women

(„CAW‟) Cell Nanakpura. Ultimately an FIR No. 518 of 2000

under Sections 498-A/406/34 IPC came to be registered at

Police Station Shalimar Bagh against the Respondent and her

family members.

3. It is stated by learned counsel for the Petitioner that as a

counterblast to the filing of the aforementioned criminal

proceeding, the Respondent filed a criminal complaint under

Sections 380/420/34 IPC on 7th October 2005 against the

Petitioner, wherein she alleged that the Petitioner on 1st April

1999, while leaving her matrimonial home, had taken the

jewellery given to her in the dowry and „wari‟ to her parental

house. It was further alleged by the Respondent that the

Petitioner also took away a box containing the jewellery of the

respondent and certain jewellery of her son which were gifted

to him by his grand mother. In para 7 of the complaint it was

alleged that the Respondent‟s son Rajeev Puri had a dialogue

with the mother of the Petitioner in which she is alleged to have

admitted that the Petitioner had taken away the box containing

the jewellery of the Respondent. It is stated that the Petitioner

had kept the matter lingering by promising that the jewellery

would be returned. Thereafter the respondent was constrained

to file the aforementioned complaint.

4. By an order dated 2nd March 2006 the learned MM, after

going through the complaint as well as the pre-summoning

evidence adduced by the Respondent, concluded that

ingredients of Section 380/420 IPC were not even prima facie

made out and accordingly dismissed the complaint.

5. Aggrieved by the dismissal of the complaint the Respondent

filed Criminal (R) No. 2 of 2006 to the court of the learned

ASJ. By the impugned order dated 29th June 2007 the learned

ASJ reversed the order dated 2nd March 2006 passed by the

learned MM with a direction to the learned MM to issue

summons to the Petitioner to face trial under Section 380 IPC

and proceed further with the complaint in accordance with law.

6. Learned counsel for the Petitioner submits that the impugned

order is unsustainable in law because when the complaint is

read as a whole not even a prima facie case under Section 380

IPC is made out against the Petitioner. He submits that DD No.

9A dated 2nd July 1999 recorded by the police at the instance of

the husband of the petitioner with the Police Station Model

Town, Delhi only mentions that the Petitioner left the

matrimonial home. It does not allege that the petitioner

committed theft of the jewellery of the Respondent. No such

allegation has been made in the divorce petition filed

subsequently by the petitioner‟s husband. Likewise, no such

allegation was made in the application for anticipatory bail filed

by the Respondent accused. It is submitted that the filing of the

aforementioned criminal complaint six and a half years after the

Petitioner left the matrimonial home was malafide and purely as

a counterblast to the criminal proceedings instituted by the

Petitioner against the Respondent and her family members.

7. On behalf of the Respondent it is contended that in the

complaint there was an explanation for the delay in filing the

complaint to the effect that the parties were expecting an

amicable settlement of all the disputes and therefore, the

complaint could not be filed earlier. Counsel for the Respondent

submits that the pre-summoning evidence would show that

there were taped conversations between the parties which

would support the allegations in the complaint. Reliance is also

placed upon the judgments of the Gujarat High Court in Arvind

Mills Limited v. State of Gujarat 2003 (2) All India Criminal

Law Reporter 88 to urge that the mere delay in filing the

complaint cannot be a ground for its quashing.

8. Having considered the respective submissions of learned

counsel for the parties, this Court is of the view that the

Petitioner should succeed. It is not in dispute that the Petitioner

and the son of the Respondent hardly lived together for 20 days

after the marriage which took place on 11th March 1999. It is

also seen that prior to the filing of the criminal complaint in

question on 7th October 2005 (which appears to have been

presented in the Court on 15th October 2005 and made over to

the learned MM on 22nd October 2005 at 2.00 pm), there was no

such allegation made in any of the proceedings between the

parties.

9. In the entire complaint the only explanation for the delay is

in para 12 where it is stated as under:

"12. That the accused persons further kept on lingering on the matter by flowery promises and assurances that the ornaments/jewellery taken away by the accused no.1 would be returned and sometime saying that they were lying in safe custody in the bank locker meaning thereby that they were lying intact and would be returned and thus kept on the complainant in illusion of an amicable settlement but the later conduct of the accused persons clearly showed that it was simply a time gaining device and the accused had no intention to settle the matter but were looking for an opportune time to involve and implicate the complainant and her family members like a cat set in the cage of pigeons and it is unfortunate that premonitions over took the complainant and her family members and they had to undergo unnecessary harassment and humiliation for their simplicity. It was because of the legal jockeying

played by the accused persons that necessary legal action could not be taken by the complainant then and there and a long rope had been given to the accused little knowing that the accused would steel a march by way of registration of a false case later on."

10. In the considered view of this Court the aforementioned

explanation for not filing the complaint for as long as six and

half years after the parties began living separately is

unacceptable and unconvincing. Entertaining the complaint of

theft by the daughter-in-law six and half years after she has left

the matrimonial home would in the circumstances constitute an

abuse process of law.

11. The learned ASJ has, while reversing the order dated 2nd

March 2006 of the learned MM dismissing the complaint,

observed as under:

"From the perusal of the trial court record, it is reflected that the complainant in support of her complaint have got examined herself as CW-1 and her son Rajeev Puri as CW-2 during the course of pre-summoning evidence. From the perusal of the same and the relevant material as available on the trial court record and taking the cue from the aforesaid judgment, I am of the considered view that the complainant has been successful in bringing on record prima facie material for offence punishable u/s 380 IPC only against Smt.

Sumti, who has been arrayed as accused no.1 in the original complaint and no material for any offence for summoning accused no.2 Smt. Karuna Sethi and accused no.3 Subhash Chander Sethi are found available on the case record."

12. In the considered view of this Court the aforementioned

reasoning of the learned ASJ is unconvincing. The pre-

summoning evidence which is placed on record does not offer a

valid explanation for the inordinate delay of six and half years

after the alleged date of theft in filing the complaint. The

complaint was, in the circumstances, an abuse of the process of

law. There is also merit in the contention that the complaint

was in retaliation to the FIR registered against the respondent

and her family members at the instance of the petitioner. These

factors appear to have not been appreciated by the learned ASJ.

13. Learned counsel for the respondent referred the various

portions of the transcript of the alleged taped conversations