Kerala High Court
Jayesh U vs Roshni on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA,
1946
CRL.MC NO. 1573 OF 2024
CRIME NO.351/2023 OF Pazhayannur Police Station,
Thrissur
CC NO.989 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, VADAKKANCHERRY
PETITIONERS/ACCUSED 1 & 2:
1 JAYESH U, AGED 34 YEARS
S/O. P RAMADAS & RUGMANI, URATH
HOUSE,ANJUMOORTHY PO, VADAKKENCHERRY II
VILLAGE ALATHUR THALUK, PALAKKAD DISTRICT,
PIN - 678682.
2 RUGMANI, AGED 61 YEARS
D/O. MADHAVAN NAIR & W/O P RAMADAS,URATH
HOUSE, ANJUMOORTHY PO, VADAKKENCHERRY II
VILLAGE, ALATHUR THALUK, PALAKKAD DISTRICT,
PIN - 678682.
BY ADVS.
PRABHU K.N.
MANEESH.R
RESPONDENTS/DEFACTO COMPLAINANT:
1 ROSHNI, AGED 31 YEARS
D/O. RAVINDRANADHAN, SAWPARNIKA
HOUSE,THIRUVALLAMALA DESOM,PAMPADI EAST PO,
PAMPADI VILLAGE, TALAPALLI THALUK, THRISSUR
DISTRICT, PIN - 680588.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
BY ADVS.
FOR R1 SANTHOSH P.PODUVAL
FOR R1 R.RAJITHA(K/870/2005)
FOR R1 CHITHRA S.BABU(K/376/2012)
FOR R2 PUBLIC PROSECUTOR SRI M P PRASANTH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 05.06.2024, THE COURT ON 20.06.2024 PASSED
THE FOLLOWING:
Crl.M.C.No.1573/2024 2
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C.No.1573 of 2024
================================
Dated this the 20th day of June, 2024
ORDER
This Criminal Miscellaneous Case has been filed under
Section 482 of the Code of Criminal Procedure, 1973, (`Cr.P.C'
for short hereafter) with prayer to quash Annexure A3 final
report and all further proceedings in C.C.No.989/2023 on the
files of the Judicial First Class Magistrate Court, Wadakkanchery
arising out of Crime No.351/2023 of Pazhayannur Police Station,
Thrissur District. The petitioners are accused Nos.1 and 2 in the
above case.
2. Heard the learned counsel for the petitioners
and the learned Public Prosecutor in detail.
3. I have perused Annexure-A3 final report and
other relevant documents.
4. In this matter, the prosecution alleges
commission of offences punishable under Sections 406 and 498
A of the Indian Penal Code by the accused.
5. The prosecution allegation herein is that the 1st
accused herein married the defacto complainant on 28.10.2014
as per Hindu religious customs and they lived together as
husband and wife at the matrimonial home. While so, the
husband/1st accused and the mother of the 1 st accused/2nd
accused, subjected her to cruelty. The further allegation is that
during this stage, accused 1 and 2 misappropriated her gold
ornaments and thereby committed breach of trust as well as
cheating without giving back the gold ornaments to the defacto
complainant. This crime was registered when the defacto
complainant lodged Annexure-A1complaint before the Judicial
First Class Magistrate Court, Wadakkanchery, seeking
investigation under Section 156(3) of Cr.P.C. The learned
Magistrate directed investigation by the police. On completion
of investigation, the police filed Annexure-A3 final report
alleging commission of offences punishable under Sections
498A and 406 of the Indian Penal Code.
6. The learned counsel for the petitioner
submitted that, in this case along with the complaint filed by the
complainant, which led to cognizance of this case, an affidavit
mandated as per the decision "Babu Venkatesh and Others v.
State of Karnataka and Another 2022(5) SCC 639" not
produced. Therefore, the proceedings are vitiated and for the
said reason alone, the quashment sought for is liable to be
allowed. It is also submitted that, though this Court in (1) "Don
Paul v. State of Kerala 2024 (3) KHC 617" referring (2)
"Midhun v. State of Kerala and Others 2022 KHC 2" held that
violation of preconditions to be satisfied before seeking
investigation under Section 156(3) Cr.P.C would not make the
investigation and final report thereof non-est, this Court did not
specifically consider the impact of non filing of affidavit in the
said case.
7. In paragraph No:10 of Don Paul v. State of
Kerala (supra) this Court set out the preconditions to be satisfied
before seeking investigation under Section 156(3) of Cr.P.C as
under:
"10. Retorting to the first question, it is
answered that the following preconditions to be satisfied
before seeking investigation under Section 156(3) of Cr.P.C
before a Magistrate:
1) Where applications under Section
156(3) of Code of Criminal Procedure are to be
supported by an affidavit duly sworn by the complainant
who seeks the invocation of the jurisdiction of the
Magistrate.
2) In an appropriate case, the learned
Magistrate would be well advised to verify the truth and also
verify the veracity of the allegations.
3) Prior to the filing of a petition under
Section 156(3) of the Code of Criminal Procedure, there have
to be applications under Section 154(1) and 154(3) of the Code
of Criminal Procedure."
8. Again in paragraph 13 this Court held as
under:
"On reading the facts of the present case where even though
compliance of S.154(1) and S.154(3) of Cr.P.C was not
established before ordering investigation under S.156(3), on
investigation, a charge alleging commission of the offence
punishable under S. 406 of IPC was already filed after
detailed investigation. In the instant case also the petitioner
did not challenge the proceedings before filing final report
by the police. In such a case, in view of the protection
under S.465(2) of Cr.P.C, violation or non-compliance of
the preconditions would not make the investigation and the
final report thereof non-est. In such view of the matter, the
order of cognizance doesn't require any interference since
there is no failure of justice involved.
Holding so, this Crl.M.C stands dismissed with direction
to the Magistrate to expedite the trial and disposal of C.C
No. 878 /2019 on the files of the Judicial First Class
Magistrate Court-I, Vaikom, at any rate, within a period of
4 months from the date of receipt of a copy of this order."
9. It is true that this Court not specifically
considered the impact of non filing of affidavit along with the
private complaint in Don Paul (supra). But it was held that one
of the preconditions to be satisfied while filing complaints
seeking investigation under Section 156(3) of Code of Criminal
Procedure is filing of an affidavit along with the complaint/s duly
sworn by the complainant/s supporting the contention raised in
the applications, who seeks/seek the invocation of the
jurisdiction of the Magistrate. After setting out the parameters in
Don paul (supra), it was held in paragraph 13 that in view of the
protection under S.465(2) of Cr.P.C, violation or non-compliance
of the preconditions would not make the investigation and the
final report thereof non-est. Thus applying the ratio in Don
paul (supra), even non filing of affidavit also is a curable
irregularity under Section 465(2) of Cr.P.C. In view of the above
discussion, it is held that non filing of an affidavit along with
complaint/s by itself would not make the investigation and
further proceedings non-est once the investigation was completed
and cognizance was taken by the Court since the same is also a
curable irregularity in terms of Section 465(2) of Cr.P.C.
10. It is argued by the learned counsel for the
petitioners further that, in order to attract offence under Section
420 of IPC, the offencess referred in paragraph No.11 of the
Apex court judgment reported in "2024 KHC 6039 Mariam
Fasihuddin v. State by Adugodi Police Station" shall be
complied and in the present case no such compliance.
11. In paragraph No. 11 of the judgment, the Apex
Court held as under:-
"11. It is thus paramount that in order to attract the
provisions of Section 420 IPC, the prosecution has to
not only prove that the accused has cheated someone
but also that by doing so, he has dishonestly induced
the person who is cheated to deliver property. There
are, thus, three components of this offence, i.e., (i) the
deception of any person, (ii) fraudulently or dishonestly
inducing that person to deliver any property to any
person, and (iii) mens rea or dishonest intention of the
accused at the time of making the inducement. There is
no gainsaid that for the offence of cheating, fraudulent
and dishonest intention must exist from the inception
when the promise or representation was made."
12. On going through the final report with
endorsement regarding cognizance, it is noticed that the court
took cognizance for only two offences, viz. 498-A as well as 406,
and no cognizance taken for the offence under Section 420 of
IPC. Therefore, this argument has no relevance in the facts of this
case and is repelled.
13. In so far as the offence under Section 498-A is
concerned, the learned counsel for the petitioner placed decision
of the Apex Court reported in "2023 KHC 6809 Abhishek v.
State of Madhya Pradesh" to contend that general and omnibus
allegations would not make offence under Section 498 of IPC,
unless the allegations are so specifically raised. This legal
position is not in dispute.
14. It is argued by the learned counsel for the
petitioner further that the ingredients to attract offences
punishable under Section 498A and 406 of IPC are not made out,
prima facie. Thus even otherwise quashment sought for is liable
to be allowed.
15. The learned Public Prosecutor took attention of
this Court to Annexure-A1 complaint, with particular mention to
paragraphs 6, 7 and 8 of Annexure-A1 complaint having 13
pages describing every overt acts at the instance of the accused
persons in minute niceties to contend that the quashment prayed
for cannot be allowed, since the prosecution records made out
sufficient materials, prima facie, to constitute the offences
alleged to be committed by the accused.
16. Indubitably, as held by the Apex Court in
Abhishek v. State of Madhya Pradesh's case (supra), and
considered by this Court in Shyamala Bhaskar v. State of
Kerala, [2024 KHC OnLine 429 : 2024 KLT OnLine 1674],
general, omnibus and sweeping allegations without bringing on
record specific overt acts are not sufficient to go for trial and
cases of such nature are liable to be quashed.
17. On perusal of the complaint containing 13
pages, it could be gathered that there are allegations in
paragraphs 4 and 5 that the parents of the defacto complainant
given 15 sovereigns of gold at the time of marriage and the same
was entrusted with the 2nd accused, the mother of the 1 st accused,
as a trustee, along with a chain with Thali also, excluding Thali.
Later, the defacto complainant purchased another chain by
contacting her father and used the said chain along with Thali. It
is alleged that though they were informed that the gold
ornaments should be kept in a locker in the joint names of the
defacto complainant and the 2nd accused, the 2nd accused kept the
key of the locker and the gold ornaments not returned and
thereby committed breach of trust. The further allegation is that
accused 1, 3 and 4 used to harass the defacto complainant
demanding more dowry. Thus the prosecution allegation would
suggest, prima facie, materials, warranting trial of the matter
facilitating the prosecution to adduce evidence and the ratio in
Abhishek v. State of Madhya Pradesh's case (supra) has no
application in the present case. In such a case, quashment would
not be possible and, therefore, quashment sought for is liable to
be dismissed.
18. In the result, this petition stands dismissed.
Registry shall forward a copy of this order to the
jurisdictional court for information and further steps.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
PETITIONERS' ANNEXURES
Annexure A1 CERTIFIED COPY OF CMP NO 3018/2023
PREFERRED BY THE 1ST RESPONDENT/DE-
FACTO COMPLAINANT BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT
WADAKKANCHERY.
Annexure A2 CERTIFIED COPY OF FIR IN CRIME NO. 351
OF YEAR 2023 OF PAZHAYANNUR POLICE
STATION, THRISSUR, DISTRICT DATED
04.07.2023.
Annexure A3 CERTIFIED COPY OF THE FINAL REPORT IN
C.C.NO.989/2023 ON THE FILE OF JUDICIAL
1ST CLASS MAGISTRATE COURT
WADAKKANCHERY ARISING OUT OF CRIME NO.
351 OF YEAR 2023 OF PAZHAYANNUR POLICE
STATION, THRISSUR, DISTRICT DATED
13.09.2023.
Annexure A4 TRUE COPY OF THE OP NO.359/2023
PREFERRED BY THE 1ST RESPONDENT AGAINST
PETITIONERS 1&2 DATED 01.03.2023 BEFORE
THE FAMILY COURT THRISSUR.
