Nandini Mohit Shah vs State Of Gujarat
2022 Latest Caselaw 8932 Guj

     R/CR.MA/13263/2019                             ORDER DATED: 10/10/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL MISC.APPLICATION NO. 13263 of 2019
===================================================
                  NANDINI MOHIT SHAH
                          Versus
                   STATE OF GUJARAT
===================================================
Appearance:
MS SEJAL K MANDAVIA(436) for the Applicant(s) No. 1,2
MR TEJAS P SATTA(3149) for the Respondent(s) No. 2
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 1
===================================================
 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 10/10/2022

                              ORAL ORDER

1. By way of this Application, the applicants herein have prayed for the following reliefs:

"A. The Hon'ble Court may be pleased to quash and set aside the FIR being C.R. No. I-94 of 2019 registered at Ishanpur Police Station, Ahmedabad under Section 498(k), 323, 294(kh), 506(2), 114 of the Indian Penal Code read with section 3 and 7 of the Dowry Prohibition Act qua the petitioners.

B. Pending admission and final disposal of the presetn application the Hon'ble Court may be pleased to grant stay against the further proceedings arising out of the said FIR being C.R. No. I-94 of 2019 registered at Ishanpur Police Station, Ahmedabad under Section 498(k), 323, 294(kh), 506(2), 114 of the Indian Penal Code read with section 3 and 7 of the Dowry Prohibition Act in the interest of justice. C. Grant other and further relief if it in the interest of justice."

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

2. The applicants are the original accused nos. 4 and 5 in the impugned F.I.R.

3. Ms. Sejal K. Mandavia, learned counsel appearing for the applicants submitted that the applicants herein are residing of Mumbai. The applicant no.1 is the elder sister of accused no.1 - husband of the complainant. Ms. Mandavia, learned counsel submitted that the applicants came to Vadodara for attending the marriage function just 2 days before the marriage and returned back to Mumbai on the very next day and did not spend even a single day with the complainant. Even after marriage, the complainant herself has informed that she went to Andaman Nicobar islands for their honeymoon with the husband i.e. accused no.1. The applicants had never stayed with the complainant and hence the allegations put forth by the complainant that she was tortured are completely false with an intention to harass the applicants by bringing them in the F.I.R.

4. Ms. Mandavia, learned counsel submitted that, the complainant resided in the matrimonial home only for a short span of four months i.e. the marriage took place in January, 2019 and she went to her uncle's house at Ishanpur in Ahmedabad in May itself.

5. Ms. Mandavia, learned counsel submitted that the allegations levelled against the applicants herein in the impugned F.I.R. can be said to be vague allegations.

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

6. Ms. Maithili D. Mehta, learned App, on instructions also submitted that, the allegations as alleged by the complainant in the impugned FIR at the most could be said to be harassing the complainant. However, nothing further is coming on record during the course of investigation.

7. Mr. Tejas P. Satta, learned counsel appearing for the respondent no.2 - orig. complainant does not in a position to controvert the submissions made by the learned counsel appearing for the applicants as well as learned APP appearing for the respondent- State.

8. Heard the learned counsels appearing for the respective parties.

9. At this stage, it is apposite to refer to the following position of law :-

(a) In the case of Neelu Chopra and Anr. vs. Bharti, reported in (2009) 10 SCC 184, paragraphs 9 to 12 read thus :-

"(9.) In order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.

(10) When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would-be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.

(11.) The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A, IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.

(12.) This is apart from the fact that despite service of notice, the complainant neither appeared before this Court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482, Cr.P.C."

(b) In the case of Bhaskar Lal Sharma and Anr. Vs. Monica,

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

reported in (2009) 10 SCC 604, paragraphs 53 to 59 and 61 read thus :-

"(53.) The offence of criminal breach of trust as defined in Sec. 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.

(54.) The essential ingredients for establishing an offence of criminal breach of trust as defined in Sec. 405 and punishable under Sec. 406 IPC with sentence for a period up to three years or with fine or with both, are:-

[(i) entrusting any person with property or with any dominion over property;] [(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.] (55.) We have noticed heretobefore that the correspondences exchanged between the spouses or by and between Vikas and his in-laws do not disclose any allegation which would amount to criminal misconduct on the part of the appellants.

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

(56.) With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants. The only allegation which brings the case within the purview of Sec. 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would the definition of breach of trust within the meaning of Sec. 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son. No definite case of entrustment of any property has been made against the appellant No. 1. He is only said to have given back to the complainant's parent the entire cloth and jewelry. No demand was made by the respondent.

(57.) Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana' and/or amount spent by the complainant's father per se does not constitute any offence of Sec. 406 of the Code. Any gift made to the bridegroom or his parents - whether in accordance with any custom or otherwise also would not constitute any offence under Sec. 406 of the Code.

(58.) In State of Punjab V/s. Pritam Chand & Ors. [2009 (2) SCALE 457] : (2009 AIR SCW 1457), it has been held:-

["4. Sec. 406 IPC deals with punishment for criminal breach of trust. In a case under Sec. 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust."] (See also Harmanpreet Singh Ahluwalia & Ors. V/s. State of Punjab & Ors.[2009 (7) SCALE 85]) : (2009 AIR SCW 3976).

(59.) We, therefore, are of the opinion that prima facie a case under Sec. 406 of the IPC has been made out only against appellant No.2.

(61.) The appeals are allowed to the extent mentioned hereinabove. The summoning order dated 21.3.2005 passed against the appellants except Appellant No.2 is set aside. It is clarified that the proceedings can continue only against the appellant No.2, that too in respect of Sec. 406 IPC only."

(c) In the case of Anand Kumar Mohatta and Anr. vs. State (NCT of Delhi) Department of Home and Anr., reported in (2019) 11 SCC 706, paragraphs 29 and 30 read thus :-

"(27.) We are of the opinion that the present case falls under the 1st, 3rd and 5th category set out in the para 102 of the judgment in the case of Bhajan Lal (supra). In such a situation, the High Court erred in dismissing the petition of the Appellants filed under Section 482 of Cr.P.C. This was a fit case for the High Court to exercise its inherent power under Section 482 of Cr.P.C. to quash the FIR. (28) It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others, 1977 2 SCC 699 which read as follows:-

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

7. ..In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice."

(d) In the case of Natubhai Somabhai Rohit and others Versus State of Gujarat reported in Criminal Misc. Application (For Quashing & Set Aside FIR/ORDER) No.20679 of 2013, paragraphs No.6 to 9 read thus :-

"6. Besides to the generality and vagueness of the allegations, if the ingredients necessary to make out the offence under 498A, IPC are looked into, as observed by the Supreme Court in Bhaskar Lal Sharma vs. Monika [(2009) 10 SCC 604], the allegations of harassment should be of such nature and extent so as to coerce the wife to meet any unlawful demand of dowry or any other unlawful conduct on part of the accused of a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. Closely examining the allegations in the instant FIR, these elements as well as the degree of seriousness in the allegations could be said to be in wanting.

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

7. The tendency to rope in all the family members in the FIR speaks for themselves and in such circumstances, the requirements of alleging specific role for each of the members becomes necessary, for which the indispensable aspects that all should stay together. The Supreme Court has viewed with suspicion the conduct of disgruntled complainant in bringing into picture the entire family and the family members to level allegations under section 498A against all of them.

8. In G. V. Rao vs. L.H.V. Prasad [(2203) SCC 693), the Supreme Court held that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed. The court observed as under, "There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But, little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their ýoung' days in chasing their 'çases' in different courts." (para-12)

9. Having regard to above position and the facts cumulatively operating, when the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused

R/CR.MA/13263/2019 ORDER DATED: 10/10/2022

are shown to be living separately coupled with attendant facts and aspects noticed and noted above, the allegations become too bald to be sustained in law. Applicant Nos. 5 and 6 are aged about 70 years and 90 years respectively. In light of the above facts and circumstances, the FIR and the allegations therein turned out to be abuse of process of law and could be said to be only for wrecking vengeance."

10. In view of this Court, the F.I.R. can be said to be vague and the complainant has not even stated that as and when the complainant resided with the applicants in that four months' period with the accused no.1 and his family. In view of this Court, the complaint / F.I.R. being C.R. No. I-94 of 2019 registered at Ishanpur Police Station, Ahmedabad stands quashed and set aside qua the present applicants. Consequentially, pursuant to the filing of the impugned F.I.R., if charge-sheet and criminal case are registered, the same also stands terminated, qua the present applicants. However, the trial to be proceeded in accordance with law qua rest of the accused. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman