Neeru Sharma & Ors. vs The State (Nct, Delhi) & Anr.
2011 Latest Caselaw 2368 Del

            IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. M.C. NO. 72/2011

%                       Judgment decided on: 3rd May, 2011


NEERU SHARMA & ORS.                                  ....PETITIONERS

                             Through:   Ms. Sima Gulati and Ms.
                                        Sugam Puri, Advs. for the
                                        petitioner with petitioner No 1
                                        in person.
                             Versus

THE STATE (NCT, DELHI) & ANR.                       ....RESPONDENTS

                             Through:   Mr. U.L. Watwani, APP for the
                                        State with SI Pratap Singh, P.S.
                                        Kirti Nagar.
                                        Mr. Suresh Sisodia, Adv. for
                                        respondent     No.    2    with
                                        respondent No. 2 in person.

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


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

       2. To be referred to Reporter or not?                  No

       3. Whether the judgment should be
          reported in the Digest?                             No

A.K. PATHAK, J. (Oral)

1. By way of present petition under Section 482 Cr.P.C.,

petitioners seek setting aside of summoning order dated 30th

September, 2010 passed by the learned Metropolitan Magistrate

as also quashing of the complaint case titled "Dhirendra Singh

Chhaunkar vs. Neeru Sharma and Ors.", pending in the court of

Metropolitan Magistrate.

2. Respondent No.2 has filed a complaint under Section 200

Cr.P.C. before the Metropolitan Magistrate (Trial Court) praying

therein that petitioners be summoned, tried and punished for

the offences under Sections 323/324/329/379/406/417/452

/468/506 and Section 120-B IPC. After recording pre-

summoning evidence Trial Court has summoned the petitioners

under Sections 379/506/34 IPC.

3. Petitioner No. 1 is wife; whereas petitioner No. 2 is father-

in-law, petitioner No. 3 is mother-in-law, petitioner No. 4 is

sister-in-law and petitioner No. 5 is brother-in-law of respondent

No. 2 (complainant). As per the complaint, petitioners Nos. 2 to

4 compelled the respondent No. 2 to marry petitioner No. 1 on

8th December, 2009 in Arya Samaj Mandir, Kirti Nagar, New

Delhi. After the marriage, petitioner No. 1 and respondent No. 2

started living together. However, petitioner No.1 started

blackmailing, torturing and humiliating respondent No. 2 at the

instigation of petitioner Nos. 2 to 5. She asked the respondent

No. 2 to buy a flat for the petitioner Nos. 2 to 5 in the same

locality. She told him to pay `20,000/- p.m. for maintenance of

her parents. She threatened that in case her demands were not

met, she would commit suicide and falsely implicate the

respondent No.2. On 11th April, 2010, respondent No. 2 found

the gold and diamond jewelry of his deceased mother and

`50,000/- in cash missing from the almirah. When he enquired

from the petitioner No. 1 as to where the jewelry and cash had

vanished, she replied that she had taken out the same at the

instigation of her mother and sister and had passed it on to

them. On 13th April, 2010, when respondent No. 2 asked the

petitioner No. 1 to return the jewelry and cash, she called

petitioner Nos. 2 to 5, who came there along with 5-6 muscle

men and quarreled with him and beat him up. Thereafter,

petitioner No. 1 left the matrimonial home with them. On 23 rd

April, 2010, she again visited the matrimonial home along with

petitioner Nos. 2 to 4 and asked him to transfer all his movable

and immovable properties in her name. They threatened him

with dire consequences in case their demands were not met. He

approached police station Sunlight colony but no action was

taken. Thereafter, petitioner No. 1 filed a complaint in Crime

Against Women Cell (CAW Cell) on 4th June, 2010 alleging

therein that she had been treated with cruelty by the respondent

No. 2 on the point of dowry.

4. Learned counsel for the petitioners has vehemently

contended that present complaint has been filed by the

respondent No. 2 as a counterblast and in order to put pressure

on the petitioner No.1. Petitioner No. 1 was treated with cruelty

by the respondent No. 2. Sufficient dowry was given by the

parents of petitioner No.1; however, respondent No. 2 was still

not satisfied and demanded more dowry. He demanded `5 lacs

from her on 9th /10th April, 2010. Respondent No. 2, with the

help of his brother and sister, gave beatings to petitioner No. 1

in order to compel her to bring money from her parents.

Brother-in-law and sister-in-law of petitioner No. 1 caught hold

of her while friend of respondent No. 2, namely, Ganesh threw

ash on petitioner No. 1 after performing some puja. Petitioner

No. 1 was molested by the brother-in-law of respondent no. 2.

On 13th April, 2010, petitioner no. 1 was beaten badly and was

forced to leave the matrimonial home. Respondent No. 2

appeared before the CAW Cell on 11th June, 2010, 21st June,

2010, 30th June, 2010 and 7th July, 2010. He did not make any

complaint before the concerned officials of the CAW Cell that his

marriage was forcibly performed with petitioner No. 1 by

extending threats, inasmuch as, during the arguments of bail

application he took up a new plea that his marriage was not

performed with the petitioner no. 1 and all the documents in

this regard were forged and fabricated. In nutshell, counsel for

petitioners has contended that present complaint has been filed

in order to harass and victimize the petitioners. She has further

contended that no prima facie case was made out against the

petitioners since all the articles of either of the spouse remain in

joint possession of husband and wife and even if wife takes

some of the articles no case of theft can be said to have been

made out. Reliance has been placed on Neelam and Ors. vs.

State, 1988 (1) Crimes 545, 34(1988) DLT 152 and

Harmanpreet Singh Ahluwalia and Ors. vs. State of Punjab

and Ors., JT 2009(6) SC 375.

5. As against this, learned counsel for respondent No. 2 has

contended that complaint filed by the petitioner No. 1 is a

counterblast to the complaint filed by respondent No. 2. At this

nascent stage complaint against the petitioners cannot be

quashed. Allegations and counter allegations leveled by the

parties have to be tested during the trial.

6. I have considered the rival contentions of both the parties.

It is no doubt true that powers under Section 482 Cr.P.C. are to

be exercised sparingly and only in exceptional cases and not as

an appellate/revisional court. But, at the same time, it can be

exercised to prevent the abuse of process of court. In case it

emerges from the record that the prosecution has been launched

in order to harass the accused by the complainant or to wreak

personal vendetta, then High Court will be well justified in

quashing the complaint in exercise of inherent powers under

Section 482 Cr.P.C. If the court comes to the conclusion that

proceedings initiated by way of criminal complaint were uncalled

for and unjustified, then High Court is entitled to quash the

proceedings. In State of A.P. vs. Gourishetty Mahesh and

Ors., (2010) 11 SCC 226, Supreme Court has held that though

High Court may exercise its power relating to cognizable offences

to prevent abuse of process of any Court or otherwise to secure

the ends of justice, the power should be exercised sparingly. For

example, where the allegations made in the FIR or 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 or allegations in the FIR do not

disclose a cognizable offence or do not disclose commission of

any offence and make out a case against the accused or where

there is express legal bar provided in any of the provisions of the

Code or in any other enactment under which a criminal

proceeding is initiated or sufficient material is there to show that

the criminal proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused due to private

and personal grudge, the High Court may step in.

7. In the facts of this case, the present complaint, pursuant

whereof FIR in question has been registered, appears to be a

counterblast to the complaint of the petitioner No. 1 before the

CAW Cell. Present complaint appears to have been filed by

respondent no.2 in order to exert pressure on petitioner No. 1 to

come to terms with him. This fact is evident from the allegations

made in the FIR. Though respondent No. 2 claims that his

marriage with petitioner No. 1 was solemnized by petitioner Nos.

2 to 5 under threat on 8 th December, 2009, however, no such

complaint was filed immediately after the marriage. Respondent

No. 2 claims that petitioner No. 1 had removed the jewelry and

`50,000/- in cash on 13th April, 2010 from the Almirah.

Immediately after the incident no prompt action was taken to

lodge the complaint. No such plea was even taken before the

CAW Cell though he had participated in the proceedings as

many as on five occasions. He has filed this complaint only after

the complaint was filed by the petitioner no. 1 in the CAW Cell.

That apart, he has virtually roped in entire family of his wife.

This itself shows that the present complaint has been filed

maliciously in order to exert pressure on the wife to come to

terms with him.

8. If the matter is examined from another angle then also

ingredients of offence of theft are not disclosed. For constituting

the offence of theft, essential ingredient is removal of a movable

article from somebody's possession and that removal must be in

pursuance of dishonest intention. At the time of alleged incident

of theft, husband and wife were living together. All the articles,

including jewelry, were lying in the Almirah which was in their

joint possession. Thus, it was for their common use and

enjoyment. It is not the case that wife had taken any jewelry

after breaking open the Almirah. Thus, even if jewelry and cash

had been taken by the wife, same being in joint possession of

the spouses, the offence of theft is not made out.

9. For the foregoing reasons, complaint case No. 113/2001

titled as "Dhirendra Singh Chhaunkar vs. Neeru Sharma and

Ors." is quashed.

10. Petition is disposed of in the above terms.

A.K. PATHAK, J.

MAY 03, 2011/rb