Delhi High Court

Rajesh Khanna & Anr. vs The State (Govt. Of Nct Of Delhi) on 26 October, 2010

Author: A. K. Pathak

           IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. 7551-52/2006

%             Judgment delivered on: 26th October, 2010

RAJESH KHANNA & ANR.                            ..... Petitioners
                  Through:           Mr. R.N. Jha, Adv.

                         Versus

THE STATE (GOVT. OF NCT OF DELHI) .....Respondent

                         Through:    Mr. Manoj Ohri, APP for the
                                     State along with SI N.K. Jha,
                                     P.S. Shakarpur

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers          No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?             No

       3. Whether the judgment should be                 Yes
          reported in the Digest?


A.K. PATHAK, J. (Oral)

1. By this petition under Section 482 of the Code of Criminal

Procedure petitioners have prayed that FIR No. 53/2001 under

Sections 342/323/506 IPC registered at Police Station Shakarpur

and the consequent proceedings arising therefrom be quashed.

Not only the petition has been signed by both the petitioners but

is also duly supported by their respective affidavits.

2. Factual matrix of the case leading to the registration of FIR

is that petitioner no. 1 and petitioner no. 2 got married sometime

in the year 1988 as per the Hindu rites and ceremonies. However,

they could not live happily in the matrimonial home after their

marriage. On 2nd February, 2001 FIR in question was registered

against petitioner no. 1 on the complaint of petitioner no.2. After

the investigation charge-sheet was filed in the court of

Metropolitan Magistrate and the trial is pending.

3. During the pendency of trial, petitioners settled their

disputes amicably. They decided to part ways, accordingly, they

jointly filed a petition seeking divorce by way of mutual consent

before the Additional District Judge, Delhi wherein their statement

to the following effect was recorded on 28th September, 2006:

"JOINT STATEMENT OF: PETITIONER NO.1 SH. RAJESH KHANNA, S/O SH. PREM NATH KHANNA, R/O 35-A, JAWANT RAI DUGGAL, PARWANA ROAD, DELHI PRESENTLY AT 15/28, GITA COLONY, DELHI-31 AND OF PETITIONER NO.2 SMT. GEETA KHANNA D/O SH. JASWANT RAI DUGGAL, R/O D-69, BHAGAT SINGH ROAD, GALI NO. 5, MAZLISH PARK, ADARSH NAGAR, DELHI.

On S.A.

We were married on 11.12.1988 according to Hindu rites and ceremonies at Delhi and from the said wedlock a child namely Sonali was born on 27.10.1989 whose custody is with petitioner no. 2 and will remain with petitioner no.2.

We are living separately since October, 1989.

Due to divergence in our temperaments efforts for our reconciliation failed, now there is no possibility of our living together. So, we have decided to part ways permanently in decent manner by taking divorce by mutual consent.

We have now finally settled all our disputes and claims (Past, present and future) for a total sum of ` Four Lacs Sixty Thousand

and Four Hundred only. Out of which petitioner no. 2 has already received ` 3,60,000/- and today petitioner no. 1 has given ` 40,400/- in cash and a cheque of ` 60,000/- bearing no. 324232 dated 28.9.06 drawn on Vijaya Bank, Khajuri Khas, Delhi to the petitioner no. 2. It is further agreed that petitioner no. 2 will withdraw the petition u/s 125 Cr.P.C. pending in the court of Ld. M.M., Rohini and she has agreed to make a statement in the petition for quashing of FIR No. 53/02 U/s 342,323,506 IPC, PS Sakarpur, to be filed in the Hon'ble High Court. It is further agreed between the parties that petitioner no. 1 will not file any petition for the custody of the child and he will not have any visitation rights with the child.

The petition is ExP1 which bears the signatures of petitioners at point A and B respectively. The affidavit of petitioners are Ex.P2 and Ex.P3 respectively.

The mutual consent has not been obtained by force, fraud, undue influence, threat to anyone and this petition has not been presented in collusion with each other. We undertake to abide by the terms and conditions settled between us.

              RO&AC                    ADJ/DELHI/28.9.06"
                                        (emphasis supplied)

4. It may also be noted here that prior to lodging of the present

FIR, petitioner no. 2 had earlier also made a complaint against

petitioner no. 1 and his relatives pursuant whereof, FIR No.

158/1990 under Sections 498-A/406 IPC was registered. After

investigation charge-sheet was filed in the court of Ld.

Metropolitan Magistrate (M.M.). After trial, learned M.M. convicted

petitioner no.1 and his other relatives under Sections 498-

A/406/34 IPC and sentenced them to face rigorous imprisonment

for three years with fine of ` 1000/- each under Sections 498-

A/34 IPC and three years rigorous imprisonment under Section

406 IPC. Petitioner no.1 and his relatives filed Criminal Appeal

No. 01/2004 before the Additional Sessions Judge, Delhi and

since, during the pendency of this Appeal, matter was settled

between the parties, their sentence was reduced. The relevant

portion of the order passed by the Additional Sessions Judge,

Delhi reads as under:-

"However, since now the matter has been settled between the parties and the complainant and her husband accused Rajesh have decided to separate and the complainant has informed the Court that she has no more grouse against the accused persons, the matter may be disposed of by merely modifying sentence imposed.

Thus, instead of sentencing the accused persons to three years RI under Section 498A/34 IPC with fine of ` 1000/- each and to three years RI under Section 406 IPC, it is directed that the sentence is reduced to the fine of ` 1000/- each which the accused have already deposited and to imprisonment till rising of the Court. Personal bonds and surety bonds cancelled and sureties discharged."

5. In terms of the settlement, petitioner no. 1 had paid entire

settled amount, which fact has been duly recorded in the joint

statement of the parties. Petitioner no. 2 also withdrew petition

under Section 125 Cr.P.C. Not only this, she even joined the

petitioner no. 1 in filing the present petition seeking quashing of

the FIR in question, in terms of the settlement arrived at between

them. However, when petitioner no. 2 appeared in this Court she

stated that the petition, her affidavit filed in support of the petition

and the application seeking exemption from filing certified copies

of documents did not bear her signatures. However, she admitted

her signatures on her statement recorded by the Additional

District Judge, Delhi at the time of disposal of first motion under

Section 13(B)(1) of the Hindu Marriage Act, 1955. It appears that

she did so in order to wriggle out from her statement as regards

quashing of the FIR in question is concerned.

6. Under these circumstances, her disputed signatures i.e.

signatures on the last page of the petition, on her affidavit and on

the application seeking exemption from filing certified copies along

with her admitted signatures on the joint statement dated 9 th

September, 2004 recorded by the Additional District Judge, Delhi

were sent to Forensic Science Laboratory (FSL) for expert opinion.

Report of the FSL has been received according to which the

disputed signatures and the admitted signatures were of the same

person; meaning thereby that not only the petition but her

affidavit as well as the application seeking exemption from filing

the certified copies had been signed by her. This shows that

petitioner no. 2 had filed the present petition along with petitioner

no. 1 in terms of the settlement arrived at between them before

the Additional District Judge, Delhi, which was even acted upon

by the parties since not only the payment was made by petitioner

no. 1 in terms of the settlement but was also duly accepted by

petitioner no. 2, inasmuch as, decree of divorce was passed by the

Additional District Judge, Delhi in terms of the settlement, which

has remained unchallenged till date. At no stage petitioner no. 2

has challenged the aforesaid settlement pursuant whereof, decree

of divorce was granted and the payments were made by petitioner

no. 1 to petitioner no. 2. This shows that the settlement recorded

before the Additional District Judge, Delhi was duly acted upon.

Petitioner no. 1 fulfilled his part of obligation by making payment

in terms of the settlement. Even petitioner no. 2 fulfilled her part

of obligation by signing the present petition for quashing of the

FIR.

7. Above factual matrix clearly indicates that the petitioner

no.2, as an afterthought and for the reasons best known to her

has decided to backtrack from her commitment, which, in my

view, she cannot be allowed to do having availed the fruits of

settlement by accepting the settled amount. Conduct of the

petitioner no. 2 also goes against her since despite having signed

the petition, affidavit and the application; she made a statement

that the same had not been signed by her.

8. In Rajesh and Ors. vs. State and Anr. I (2008) DMC 442

a Single Judge of this Court, in similar facts, has held as under:-

"..... Respondent no. 2 (wife) cannot be allowed to make mockery of the Court proceedings, nor the statement made by her in the Court can be considered a trash. Respondent no. 2 now cannot be allowed to back out from the compromise or to wriggle out of the statement

made before the court. If it is allowed, there shall be no sanctity to the Court proceedings and the statements made by the witness and the parties before the Court."

9. In Mohd. Shamim vs. Nahid Begum (Smt.) 2005 CrLJ

889, the Supreme Court observed that having accepted the sum

of ` 2, 25,000/- pursuant to the compromise arrived at before the

Additional District Judge, Delhi, the wife cannot be permitted to

resile from the compromise. Similar is the view expressed by the

Supreme Court in Ruchi Agarwal vs. Amit Kumar Agrawal and

Ors. (2005) 3 SCC 299. In the said case, during the pendency of

a divorce petition before Family Court, a compromise was arrived

at between husband and wife. Terms of settlement were recorded

in a compromise deed which was filed in the Family Court. In

terms of the compromise, stri dhan was to be returned to the wife

besides payment of maintenance in a lumpsum. Wife also agreed

to withdraw criminal case under Section 125 Cr.P.C as well as

criminal case under Sections 498-A/323/506 IPC and Section 3

and 4 of Dowry Prohibition Act, 1961. However, before the Family

Court could pass an order on the basis of compromise, wife resiled

from the compromise on the ground that she had not received the

agreed amount. Subsequently, in her statement recorded by the

Family Court, she stated that she was ready for divorce and there

was also no dispute as to the amount. She withdrew the letter

written by her to the Family Court resiling from the compromise.

On the basis of this statement, the Family Court passed a decree

of divorce by way of mutual consent and the wife also withdrew

the maintenance case under Section 125 Cr.P.C. However, she

did not come forward for quashing of the criminal case under

Sections 498A/323/506 IPC and under Section 3 and 4 of the

Dowry Prohibition Act, 1961. Consequently, husband filed a

petition for quashing of the criminal proceedings in the High

Court. The said petition was allowed by the High Court and

criminal proceedings were quashed but not on the basis of

compromise. Wife filed an appeal before the Supreme Court

where it was contended that she had been coerced into giving a

statement before the Family Court agreeing to withdraw the

criminal case at the time of recording of the compromise.

However, her this plea was not accepted by the Supreme Court

and the criminal proceedings were quashed on the basis of

compromise. While doing so the Supreme Court observed as

under :-

"We are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents."

10. In Purshotam Gupta and Ors. vs. State and Anr.

MANU/DE/0057/2008 a Single Judge of this Court, in the similar

circumstances where wife had compromised the matter with the

husband and accepted the amount of ` 4 lakhs, accepted the

divorce by way of mutual consent, thought it fit to quash the FIR

even though the wife had not consented for the same at the time

of petition for quashing of the FIR was taken up.

11. In the present case the factum of compromise having arrived

at between the parties has been duly recorded by the Additional

District Judge, Delhi in the joint statement of parties. This

statement has not been disputed in the sense that no application

was filed by the wife before the Additional District Judge, Delhi