Kerala High Court
Ershad vs State Of Kerala on 2 November, 2024
2024:KER:81596
CRL.MC NO. 3435 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 2ND DAY OF NOVEMBER 2024/11TH KARTHIKA,
1946
CRL.MC NO. 3435 OF 2023
CRIME NO.103/2014 OF ERNAKULAM CENTRAL POLICE STATION,
ERNAKULAM
CC NO.34 OF 2014 OF CHIEF JUDICIAL MAGISTRATE,
ERNAKULAM
PETITIONERS/ACCUSED 1 & 2:
1 ERSHAD
AGED 39 YEARS
S/O. BASHEER, MUNDETH HOUSE,
THRIKKUNNAPPUZHA,
ALAPPUZHA, PIN - 690515
2 BASHEER
AGED 69 YEARS
S/O. SAID MUHAMMED,
MUNDETH HOUSE, THRIKKUNNAPPUZHA,
ALAPPUZHA, PIN - 690515
BY ADV SHABU SREEDHARAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM,
PIN - 682031
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CRL.MC NO. 3435 OF 2023
2
2 RABEEHA
KOMALASSERIL HOUSE,
OLD ST. AUGUSTINE ROAD,
PULLEPPADI, ERNAKULAM,
PIN - 682011
BY ADVS.
MANU HARSHAKUMAR
S.GULZAR(K/970/1995)
SRI. M P PRASANTH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 02.11.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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CRL.MC NO. 3435 OF 2023
3
ORDER
Dated this the 2nd day of November, 2024
This Criminal Miscellaneous Case has been filed
under Section 482 of the Code of Criminal Procedure, to
quash Annexure-4 charge sheet and all further proceedings
in C.C.No.34/2014 on the files of the Judicial First Class
Magistrate Court, Ernakulam. 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. No
representation for the defacto complainant. Perused the
relevant documents.
3. Here, the prosecution alleges commission
of offences punishable under Sections 498A r/w 34 of the
Indian Penal Code (hereinafter referred to as 'IPC' for short)
by the accused. The allegation is that the first accused
married the defacto complainant on 18.09.2011 and
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thereafter, the defacto complainant stayed along with the first
accused and his father, who is arrayed as the second
accused at the matrimonial home. During her stay at the
matrimonial home, the accused herein subjected her to
cruelty, after getting money from the father of the defacto
complainant instead of selling her gold ornaments,
demanding more dowry. The specific allegation is that in the
year 2012, both the accused insisted that the defacto
complainant's gold kept at the locker of SBI, Lissie Branch
should be given for the personal purpose of the accused.
Pledging of gold ornaments for Rs.4 lakh and
misappropriation of Rs.5,95,000/- by pledging 45 sovereigns
of gold etc. are alleged. That apart, it is specifically alleged
that as on 25.12.2013, the 2nd accused kicked and fisted the
defacto complainant during mediation talks and the defacto
complainant was saved by the police on intimation. This is
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CRL.MC NO. 3435 OF 2023
the base on which the prosecution alleges commission of the
above said offences.
4. In so far as the offence under Section 498-A
is concerned, the learned counsel for the petitioners relied on
the decision of the Apex Court in Abhishek v. State of
Madhya Pradesh, reported in 2023 KHC 6809 to contend
that general and omnibus allegations would not make offence
under Section 498A of IPC, unless the allegations are so
specifically raised. This legal position is not in dispute.
5. It is argued by the learned counsel for the
petitioners further that the ingredients to attract offence
punishable under Section 498A of IPC s not made out, prima
facie. Thus, even otherwise, quashment sought for is liable to
be allowed.
6. The learned Public Prosecutor took
attention of this Court to Annexure-1 complaint, describing
every overt acts at the instance of the accused persons in
minute niceties to contend that the quashment prayed for
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CRL.MC NO. 3435 OF 2023
cannot be allowed, since the prosecution records made out
sufficient materials, prima facie, to constitute the offences
alleged to be committed by the accused.
7. 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.
8. On perusal of the complaint containing 7
pages, it could be gathered that there are allegations that the
parents of the defacto complainant given 86 sovereigns of
gold and a white Ritz diesel car at the time of marriage. While
living as husband and wife, the accused pledged 45
sovereigns of gold ornaments and thereby misappropriated
Rs.5,95,000/-. After availing the loan, the accused did not
repay any single penny to the bank. Further, the accused
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persons sold the car, gifted to the complainant by her father,
without informing the defacto complainant. The further
allegation is that accused 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 sought for is liable to be
dismissed.
In the result, this petition stands dismissed.
Interim order of stay stands vacated.
Registry shall forward a copy of this order to the
jurisdictional court for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
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CRL.MC NO. 3435 OF 2023
PETITIONER ANNEXURES
ANNEXURE-1 THE CERTIFIED COPY OF THE COMPLAINT
WITH CMP NO. 296/2014 FILED BY THE 2ND
RESPONDENT BEFORE THE CJM COURT,
ERNAKULAM DATED 15.1.2014
ANNEXURE-2 THE CERTIFIED COPY OF THE FIR IN CRIME
NO.103/2014 OF ERNAKULAM CENTRAL
POLICE STATION DATED 17.1.2014
ANNEXURE-3 THE CERTIFIED COPY OF THE REPORT DATED
NIL SUBMITTED BY THE ERNAKULAM CENTRAL
POLICE BEFORE THE CJM COURT, ERNAKULAM
ANNEXURE-4 THE CERTIFIED COPY OF THE CHARGE SHEET
DATED 31.1.2014 IN CRIME NO.103/2014
OF ERNAKULAM CENTRAL POLICE STATION
BEFORE THE CJM COURT, ERNAKULAM
ANNEXURE-5 THE CERTIFIED COPY OF THE COMMON
JUDGMENT OF THE FAMILY COURT,
ERNAKULAM IN OP NO.757/2014, OP NO.
758/2014, OP NO.1340/2016 AND MC NO.
360/2014 DATED 2.3.2020
RESPONDENTS ANNEXURES : NIL
