Triloki Nath Thusoo And Another vs Arti Thusoo
2021 Latest Caselaw 1002 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                 Reserved on    21.08.2021
                                                 Pronounced on: 02.09.2021

                                                 CRMC No. 304/2021
                                                 IA No. 1/2016



Triloki Nath Thusoo and another                       .....Appellant(s)/Petitioner(s)


                        Through: Mr. Navyug Sethi, Advocate
                   Vs
Arti Thusoo                                                       ..... Respondent(s)


                        Through: Mr. Masood Choudhary, Advocate


Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                   JUDGMENT

1. The present petition has been filed by the petitioners under section

561-A Cr.P.C (now 482 Cr.P.C.) for quashing of proceedings arising out of

criminal complaint, titled, Arti Thusoo Vs Sanjay Thusoo and others under

sections 498-A and 406 RPC pending before the court of Forest Magistrate,

JMIC, Jammu (hereinafter to be referred as the trial court) and order dated

06.04.2016, by virtue of which the learned trial court has issued process against

the petitioners.

2. It is stated in the petition that the petitioners are the senior citizens

and have been wrongly arrayed as accused in the aforesaid complaint. It is

stated that they are not in contact with their son, Sanjay Thusoo for the past

more than fourteen years and are unaware of his whereabouts. Son of the

petitioners had a job in Delhi and it was in 2002, that he came to the petitioners

with a proposal of going abroad to take up a job in Australia but the petitioners

did not agree as they did not want that their son to go out of the country. Due to

this, there was exchange of words between the petitioners and their son and as

a result which, he left the home in extreme anger and since then, the petitioners

have lost contact with him. However, they have information that he is

somewhere in Australia. It is also stated that that the respondent (wife of the

son of the petitioners) in the aforesaid complaint, besides arraying her husband

i.e. the son of the petitioners as accused, has also arrayed the petitioners as

accused.

3. The learned trial court after recording the statement of the

respondent as well as the witnesses, deemed it appropriate to order enquiry

under section 202 Cr.P.C. and pursuant to that the SHO, Police Station, Bakshi

Nagar submitted his report dated 05.04.2016, in which it was stated that the

offences under sections 498-A and 323 RPC were proved.

4. The learned trial court ignored the said report and without

mentioning the same in the order dated 06.04.2016 issued process against the

petitioners.

5. Quashing of the proceedings of the aforesaid complaint as well as

order dated 06.04.2016 have been sought on the following grounds:

(a) That assuming but not admitting the allegations made in the complaint to be true, the respondent has herself admitted that since 2005, she along with her child has been residing separately and the present complaint has been filed after 10 years.

(b) That assuming but not admitting the allegations made in the complaint to be true, section 538-B Cr.P.C. lays a clear bar on the taking of cognizance of an offence with punishment up to three years after a period of three years from the date of occurrence of the offence. In this case, the learned trial court has taken cognizance of alleged offences, which are both punishable with imprisonment for three years only and which admittedly have occurred more than 10 years ago.

(c) That assuming but not admitting the allegations made in the complaint to be true, the father of the respondent has clearly stated in the report filed by the SHO, Police Station, Bakshi Nagar under section 202 Cr.P.C. that no dowry had been given to the petitioners or to their son.

6. Mr. Navyug Sethi, learned counsel for the petitioners has

vehemently submitted that the complaint filed by the respondent is vague as the

essential ingredients of offence under section 498-A as well as 406 RPC are

missing. He further submitted that in the impugned complaint, no date, time,

month and year of occurrence has been mentioned. He has further stated that as

per own admission of the respondent, she has been residing separately since

2005 and the complaint having been filed by the respondent after 10 years, is

hopelessly time barred.

7. On the contrary, Mr. Masood Choudhary, learned counsel for the

respondent, has vehemently argued that that the learned trial court has issued

the process on the basis of the statements made by the respondent as well as

witnesses and also pursuant to enquiry conducted by the SHO, Police Station,

Bakshi Nagar, as such, there is no illegality in the order impugned.

8. Heard and perused the record.

9. A perusal of the complaint reveals that it has been stated by the

respondent that after solemnization of marriage with the son of the petitioners,

the life of the respondent turned into virtual hell as the petitioners along with

son subjected the complainant (respondent) to dowry torture and a regular

beating. It is further stated that when the respondent brought the same to the

notice to the petitioners about the inhuman treatment meted out to her by the

son of the petitioners, they turned only deaf ear towards her. It is further

submitted that the petitioners were putting huge demands of dowry including

money and keeping the same as condition precedent to take the respondent

back, after the son of the petitioners left the respondent. It is further stated that

the respondent was given ample dowry items as per capacity of her parents and

the petitioners as well as their son have misappropriated all the items of the

respondent. The respondent demanded her belongings back but the petitioners

and their son refused. These are the only allegations leveled so far as

petitioners are concerned.

10. Further, a perusal of the preliminary statement of the respondent

reveals that she has repeated the contents of complaint. In the enquiry report

submitted by the SHO, Police Station, Bakshi Nagar, it has been submitted in

paragraph 3of the report that both the parties had agreed that the parents of the

respondent have no means to give any dowry as they have spent all the money

upon the education of the respondent and as per this settlement, the marriage

was solemnized between the respondent and the son of the petitioners. It has

been further mentioned in the enquiry report in para 6 that the respondent has

been residing in her parental home along with minor child since 2005. So from

the record, it is evident that the respondent has been residing separately since

2005.

11. In Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in

(1998) 5 SCC 749, Apex Court has held as under:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

12. Though the learned trial court while issuing process, recorded its

satisfaction that offences under sections 498-A and 406 RPC are made out as

per allegations made in the complaint but the learned trial court has not made

any reference with regard to the enquiry conducted under section 202 Cr.P.C.

pursuant to order dated 29.12.2015 by the SHO, Police Station, Bakshi Nagar.

The perusal of order impugned reveals that the same has been passed in a

mechanical manner oblivious to the enquiry conducted by SHO Bakshi Nagar,

that establishes the offence under section 498-A and 323 RPC.

13. A perusal of the complaint makes it clear that the respondent has

failed to make out a prima facie against the petitioners for offence under

section 498-A RPC, as only vague and bald allegations have been leveled

without any particulars regarding the date, time, month and year of the demand

and also the details of the demands made by the petitioners. As the summoning

of the accused is a serious issue, the Magistrate cannot issue process

mechanically as has been done in the instant case on the basis of vague and

bald allegations. Reliance is placed on the decision of Apex Court in Geeta

Mehrotra v. State of U.P., reported in (2012) 10 SCC 741, the relevant paras

are reproduced as under:

"25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

27. The High Court in our considered opinion appears to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR do not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the

matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498- A/323/504/506 IPC and Sections 3/4 of the Dowry Prohibition Act."

14. Reliance is also placed upon the decision of Apex Court in Pritam

Ashok Sadaphule v. State of Maharashtra, reported in (2015) 11 SCC 769:

"16. What needs to be taken into consideration is, the totality of the allegations levelled by Respondent 2 against Appellants 2 to 5. Having perused the contents of the first information report dated 6-3-2010, as also, the charge-sheet dated 27-7-2010, we felt that the submissions advanced at the hands of the learned counsel for the appellants, in that the allegations levelled against Appellants 2 to 5 were vague and omnibus, could not be seriously contested. It is therefore, that we require the learned counsel representing Respondent 2, to point out from the complaint dated 4-2-2010, the allegations levelled against Appellants 2 to 5. On our asking, the learned counsel representing Respondent 2 Hima Pritam Sadaphule, invited our attention, to the contents of two paragraphs, from the complaint dated 4-2-2010, which are being extracted hereunder:

"Subsequently on 8-6-2007, myself and my husband Pritam Sadaphule came to Delhi and after some time we went to Mumbai. I stayed there for more than a week. During this period, Pritam, his father, mother, brother, sister i.e. the entire family tortured, humiliated and harassed me to a great extent. I was beaten up by them for no reasons. They asked me for money which I had to give. Subsequently, myself and Pritam came back to Delhi and thereafter left for UK on 27-6-2007. In our stay at Delhi also, Pritam's offensive behaviour towards me and my parents continued. Thereafter, Pritam Sadaphule came back on 8-7-2008 to Delhi; we stayed together in my parents' home for some time, then again same ill-treatment, harassment, emotional and mental torture, humiliation was continued by Pritam Sadaphule. Thereafter, he took me to Goa for a week. There also he had beaten me with stick, abused me, insulted me and threatened me several times. Subsequently we came back to Delhi and same ill-treatment, harassment, emotional and mental torture, humiliation was continued by Pritam Sadaphule. During these days whenever I tried to contact his

family, Ashok Sadaphule, Satwashile Sadaphule, Pravin Sadaphule, Preeti Sadaphule also abused me, humiliated me, harassed me, tortured me emotionally and mentally and threatened me with dire consequences. Thereafter, myself and Pritam left for UK on 4-9-2008."

17. We have carefully perused the allegations pointed out by the learned counsel, from the complaint of Respondent 2 Hima Pritam Sadaphule, dated 4-2-2010. There can be no doubt whatsoever, that the allegations levelled against Appellants 2 to 5 do not justify any inference, which would lead to the conclusion, that they could be held responsible, for an offence in the nature of Section 498-A of the Penal Code. In the above view of the matter, we are satisfied in accepting the prayer made in the instant appeal, with reference to Appellants 2 to 5, and to order quashing of the first information report dated 6-3-2010, and the proceedings that may have arisen therefrom, including the charge-sheet dated 27-7-2010."

15. Now, it is to be seen whether the prima facie offence under

sections 406 RPC, for which the process has been issued against the petitioners

vide order dated 06.04.2016 is made out or not. In order to prosecute a person

for criminal breach of trust, there must be entrustment of the property and there

is no whisper in the complaint that the respondent at any point of time

entrusted the property mentioned in the list annexed with the complaint, with

the petitioners. It assumes significance in view of the fact that the respondent

has been residing separately since 2005 and rather statement of the respondent

recorded during enquiry run contrary to the averments made in the para 8 of

the complaint, in which it has been stated that the ample dowry was given. In

absence of any evidence with regard to the entrustment of the property by the

respondent with the petitioners, the petitioners cannot be prosecuted for

commission of offence under section 406 RPC. Reliance is placed upon the

decision of Apex Court in Onkar Nath Mishra v. State (NCT of Delhi),

(2008) 2 SCC 561, the relevant paras are reproduced as under:

"16. According to Section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any 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 wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. "10. ... The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created."

18. In the present case, from a plain reading of the complaint filed by the complainant on 8-11-1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 IPC. It is manifestly clear from the afore extracted complaint as also the relevant portion of the charge- sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the charge-sheet itself that the complainant had refused to take articles back when this offer was made to her by the investigating officer. Therefore, in our opinion, the very prerequisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 IPC was made out."

16. Another aspect of the matter is that it is admitted by the

respondent that she has been residing separately since 2005 whereas the

present complaint has been filed in the year, 2015 i.e. after 10 years of

separation. It is apt to take note of the observation made by the Apex Court in

Kamlesh Kalra and others v Shilpika Kalra and others reported in 2020

SCC Online 386, in which it has been held as under:

"As regards, the finding recorded by the High Court in respect of compliant/FIR filed under section 498-A Indian Penal Code, we are of the firm opinion that the same does not call for

interference, In the facts of this case, it is clear that the FIR filed in this regard in 2015 was time barred, having been filed much more than three years after the separation of Manish Lalra (husband) and Shilpika Kalra (wife) and the filing of the divorce petition by the husband, both in 2009. In the facts of the case, the reasons given by the High Court for quashing the proceedings Under Section 498-A Indian Penal Code are justified and do not call for interference by this Court."

17. Thus, this Court is of the considered view that the petitioners, who

are at advance age of their life have been unnecessarily dragged in a litigation

by the respondent, who is having marital discord with her husband.

18. For all what has been discussed above, the proceedings initiated

against the petitioners are nothing but abuse of process of law, as such, this

petition is allowed. The proceedings in the criminal complaint impugned as

well as order dated 06.04.2016, qua the petitioners, are quashed.

(Rajnesh Oswal) Judge Jammu 02.09.2021 Rakesh < <<

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No