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Andhra High Court · body

2006 DIGILAW 311 (AP)

Chancharapu Madhusudhan Reddy v. State Of A. P.

2006-03-06

RAMESH RANGANATHAN

body2006
( 1 ) THE petitioner seeks to have the proceedings in C. C. No. 552 of 2000 on the file of the IV Additional Munsif Magistrate, warangal, quashed. ( 2 ) THE petitioner is the father in law of the second respondent and is the accused in c. C. No. 552 of 2000. The allegations in the charge sheet are that the marriage of the second respondent was performed with one ch. Rajashekar Reddy, the son of the petitioner, on 20-12-1989 at Karimnagar and at the time of marriage, the parents of the second respondent had presented rs. 1,00,000/- in cash and gold arnaments weighing 20 tulas. After the marriage, the second respondent joined her husband and they were blessed with one daughter. On 30-11-1997, the second respondent s husband died due to liver hymphoma. The second respondents parents, after the death of her husband, on 14-12-1997,04-07-1998 and 30-7-1998, demanded the accused to return the gold ornaments and cash, which was given by them at the time of marriage, but the accused had not given them a single paise and is said to have misappropriated the cash and 20 tulas of gold ornaments. Due to the harassment of the accused, the second respondent returned to her parent s house. It is alleged that on 14-12-1997, the petitioner herein came to the second respondent s house and forcibly took away 10 silk sarees, 15 dresses of her daughter, 6 blankets, one air cooler and photo albums belonging to her. It is alleged that the second respondent and her husband invested one lakh in shares in Vikas Bharathi Vidyanikethan school, located near Madikonda, managed by one Sri K. Satyanarayana Reddy, and that after her husband s death, the second respondent requested Sri K. Satyanarayana reddy to return the share value. It is alleged that in the meantime, the petitioner had brought, and is continuing to bring, pressure on Sri K. Satyanarayana Reddy not to refund the amount to the second respondent. It is alleged that on 02-11-1999, at 12. 45 p. m. the petitioner herein came to Adarsha English medium School, enticed her daughter to go with him on false pretexts and attempted to kidnap her. The petitioner herein on 07-05-2000 and 09-05-2000, rang up the second respondent s parent s house and abused her in vulgar language. It is alleged that on 02-11-1999, at 12. 45 p. m. the petitioner herein came to Adarsha English medium School, enticed her daughter to go with him on false pretexts and attempted to kidnap her. The petitioner herein on 07-05-2000 and 09-05-2000, rang up the second respondent s parent s house and abused her in vulgar language. It is alleged that due to the acts of the petitioner herein, the second respondent was suffering from mental agony. A case in Cr. No. 128 of 2000, under Sections 498-A, 406 I. P. C. and section 3 and 6 of the Dowry Prohibition Act, was registered. L. Ws. 1 to 6 were examined and their statements were recorded. Thereafter, the present charge-sheet was filed against the petitioner herein for the offences under Sections 498-A, 406 I. P. C. and Sections 3 and 6 (2) of the Dowry prohibition Act. ( 3 ) SMT. T. V. Sridevi, learned counsel for the petitioner, would submit that the ingredients of Section 498-A, and 406 I. P. C. and Sections 3 and 6 of the Dowry Prohibition act are not satisfied and as such~the proceedings, in C. C. No. 552 of 2000, are liable to be quashed. Learned counsel would submit that, even otherwise, the offences of which the petitioner was charged, is barred by limitation. According to the learned counsel, since the marriage of the second respondent and the petitioner s son took place on 20-12-1989 and the complaint was filed on 11-05-2000, the complaint and the subsequent charge sheet filed on 30-6-2000 are barred by limitation. Learned counsel would submit that the second respondent filed a partition suit in O. S. No. 25 of 1998 on the file of the First Additional District Judge, warangal, and the learned Judge, by judgment dated 03-06-2002, had directed partition of a Schedule property. Learned counsel would submit that the second respondent s request for partition of b and c Schedule properties was rejected by the civil Court and in fact, c Schedule properties relate to the very same claim of having paid rupees one lakh in cash and 20 tulas of gold as dowry. Learned counsel would submit that the second respondent s request for partition of b and c Schedule properties was rejected by the civil Court and in fact, c Schedule properties relate to the very same claim of having paid rupees one lakh in cash and 20 tulas of gold as dowry. Learned counsel would submit that since the Civil Court disbelieved the second respondent s version and since the order of the Civil Court is binding on the Criminal Court, the ingredients of sections 498-A and 406 I. P. C. and sections 3 and 6 (2) of the Dowry Prohibition act are not attracted. Learned counsel would place reliance on V. M. Shah v. State of maharashtra in this regard. ( 4 ) SRI A. Ravinder, learned counsel for the second respondent, would vehemently contend that this Court, in proceedings under section 482 Cr. P. C. was not entitled to examine the truth or otherwise of the allegations made in the charge sheet. Learned counsel would contend that if the allegations in the charge sheet are taken as true, the ingredients of Sections 498-A and 406 I. P. C. and Sections 3 and 6 (2) of the Dowry prohibition Act would be attracted. Learned counsel would submit that the judgment of the Civil Court is not automatically binding on the Criminal Court and it is but one of the factors, which the Criminal Court would take into consideration. Learned counsel would place reliance on K. G. Premshanker v. Inspector of Police. Learned counsel would submit that since the second respondent s stridhan properties continue to remain in trust with the petitioner herein, after the demise of her husband, Section 406 I. P. C. is attracted. Learned counsel would place reliance on Pratibha Rani v. Suraj Kumar. Learned counsel would further contend that the question as to whether the complaint was barred by limitation, in the facts and circumstances of the present case, was a matter of evidence which could only be gone into by the trial Court and it is not for this Court to examine these issues in proceedings under section 482 Cr. P. C. ( 5 ) BEFORE examining the rival contentions, it is necessary to take note of the relevant sections under which the petitioner was charged. P. C. ( 5 ) BEFORE examining the rival contentions, it is necessary to take note of the relevant sections under which the petitioner was charged. Sections 498-A, 406 I. P. C. and sections 3 and 6 of the Dowry Prohibition Act read thus:498-A. Husband or relative of husband of a woman subjecting her to cruelty: whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine explanation - For the purpose of this section," Cruelty" means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand406 Punishment for criminal breach of trust:whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both 3 Penalty for giving or taking dowry:- (1) if any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable, with imprisonment for a term which shall not be less than five years and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, provided that court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years (2) Nothing in sub-section (1) shall apply to, or in relation to- (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf) provided that such presents are entered in a list maintained in accordance with the rules made under this Act, (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf, provided that such presents are entered in a list maintained in accordance with the rules made under this Act provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given dowry to be for the benefit of the wife or her heirs:- (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman, (a) if the dowry was received before marriage, within three months after the date of marriage, or (b) if the dowry was received at the time of or after the marriage, within three months afterthe date of its receipt, and (c) if the dowry was received wher the woman was minor within three months after she has attainec the age of eighteen years, and pending such, shall hold it in trust for the benefit of the woman. (2) If any person fails to transfer any property as required by sub- section (1) within the time limit specified therefor, or as required by sub-section (3) he. shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. (3) where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being: provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property (a) if she has no children, be transferred to her parents, or (b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children. (3-A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub- section (1) or sub-section (3) has not, before his conviction under that sub- section, transferred such property to the woman entitled thereto or, as the case may be her heirs, parents or children the court shall, in addition to awarding punishment under that sub- section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such court and paid to such woman or, as the case may be, her heirs, parents or children. (4) Nothing contained in this section shall affect the provisions of section 3 or Section 4. (4) Nothing contained in this section shall affect the provisions of section 3 or Section 4. ( 6 ) INSOFAR as Section 498-A I. P. C. is concerned, the relative of the husband of a woman, if he subjects the woman to harassment with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or the harassment is on account of failure by her or any person related to her to meet such demand, could it be said that the woman had been subjected to cruelty and thereby an offence under Section 498-A I. P. C. to have been committed. The harassment alleged in the present charged sheet is not on account of any unlawful demand of property or valuable security nor is it on account of failure by the second respondent or any person related to her to such a demand. There is no allegation in the charge sheet that the petitioner herein demanded property or valuable security from the second respondent. On the other hand, it is the second respondent, who is seeking return of her stridhan" and her share in her husband s property from the petitioner herein. The ingredients of section 498-A IPC is clearly not attracted and the proceedings to the extent the petitioner is charged of an offence under section 498-A IPC is quashed. ( 7 ) INSOFAR as the petitioner is alleged to have committed an offence under section 406 IPC. , the Supreme Court in pratibha Rani (4 supra), held thus:"we are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/ she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they, will be liable to punishment for the offence of criminal breach of trust unde secs. 405 and 406 IPC. . . . . . . 405 and 406 IPC. . . . . . . . . . . . . . . . . . . . . . . . to sum up, the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the same articles as and when demanded by the wife nor can he burden her with lossess of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Sec. 406 of the IPC. On a parity of reasoning, it is manifest thatthe husband, being only acustodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High court justified in quashing the complaint at that stage, it is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Sec. 482, Cr. P. C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint on the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegation and the ingredients of secs. 405 and 406, IPC are not made out, the High Court would be jusitified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove hercase. 405 and 406, IPC are not made out, the High Court would be jusitified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove hercase. lt is, of course, open to the accused at the trial to take whatever defences that were open to him but that stage had not yet come and therefore, the High Court was totally ill- advised to speculate on the merits of the case at that stage and quash the proceedings. We have narrated the facts in detail in the earlier part of our judgment but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under sec. 406, IPC against the accused. The important, protions of the complaint may be spelt out thus: (1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage. (2) The the parents of the appellant spent Rs. 75, 000/- on the marriage and dowry articles worth rs. 60,000/- (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused Nos. 1 to 6 at the time of the Doli on 5-2-1972. (3) that the articles entrusted to the accused were meant for the exclusive use of the appellant, (4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala find retained by the accused in orderto obtain a wrongful gain to themselves and wrongful loss to the appellant, (5) that on 11 -12-1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the appellant". ( 8 ) IT is clear therefrom that if a member of the husband s family retains possession of the "stridhan" property of a woman in trust, the title always continues to remain with the woman though possession may be with the member of the family. ( 8 ) IT is clear therefrom that if a member of the husband s family retains possession of the "stridhan" property of a woman in trust, the title always continues to remain with the woman though possession may be with the member of the family. Accepting as true the allegations in the charge sheet, that the petitioner had not returned the amount or gold received from the second respondent towards dowry despite a specific request in this regard, it cannot be said that the ingredients of Section 406 I. P. C. are not attracted. Whether these allegations are true or not are all matters of evidence, which the trial Court is required to examine, and not for this Court to go into in proceedings under section 482 Cr. P. C. ( 9 ) SMT. T. V. Sridevi, learned counsel for the petitioner, would place reliance on the judgment of the Supreme Court in V. M. Shah (1 supra) in support of her submission that the findings recorded by the Civil Court are binding on the Criminal Court. The Judgment in V. M. Shah (1 supra) has been overruled by the Supreme Court in K. G. Premshanker (2 supra), wherein the Supreme Court, while holding that the judgment and decree passed by the Civil Court would be a relevant factor, held thus:"what emerges from the aforesaid discussion is- (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the evidence Act; (2) in civil suits between the same parties, principle of resjudicata may apply; (3) in a criminal case, section 300 Cr. P. C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the Civil court would be relevant if conditions of any of sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Section 41 provides which judgment would be conclusive proof of what is stated therein. Further, the judgment, order or decree passed in a previous civi -oceeding, if relevant, as proviued under sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter (s) decided therein. Take for illustration, in acase of alleged trespass by A on B s property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by b against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is - whether judgment, order or decree is relevant, if relevant-its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case. In the present case, the decision rendered by the Constitution Bench in m. S. Sheriff case (M. S. Sheriff v. State of Madras- AIR 1954 SC 397 :1954 Cri. LJ 1019) would be binding, wherein it has been specifically held that no hard- and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages. "such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, exceptforlimited purpose such as sentence or damages". Hence, the observation made by this court in V. M. Shah case (V. M. Shah v. State of Maharashtra - [ (1995) 5 SCC 767 : 1995 SCC (Crl.) 1077)] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case (Karam Chand Ganga Prasad v. Union of India- (1970) 3 SCC 694 ) are in context of the facts of the case stated above. Further, the general observations made in Karam Chand case (Karam Chand Ganga Prasad v. Union of India- (1970) 3 SCC 694 ) are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the constitution Bench in M. S. Sheriff case as well as Sections 40 to 43 of the evidence Act. ( 10 ) WHETHER the findings recorded by the civil Court, in its judgment in O. S. No. 25 of 1996, dated 03-06-2002, is required to be accepted or not are all matters to be examined by the trial Court, on the basis of evidence, and not for this Court to go into in proceedings under Section 482 Cr. P. C. Taking the allegations in the charge sheet as true, it cannot be said that the ingredients of Section 3 and 6 of the Dowry Prohibition Act and section 406 I. P. C. are not attracted. ( 11 ) INSOFAR as the question of limitation is concerned, Smt. T. V. Sridevi, learned counsel for the petitioner, would submit that since the marriage of the second respondent took place on 20-12-1989 and the complaint was filed on 11 -05-2000, more than a decade thereafter, the offences of which the petitioner is alleged is clearly barred by limitation. Sri A. Ravinder, learned counsel for the second respondent, on the other hand, would refer to the allegations in the charge-sheet that on 14-12-1997, 04-07-1998 and 30-07-1998, the second respondent and her parents demanded the accused for return of gold and cash given towards dowry, but was of no avail, and contend that from the date of demand, the complaint and the charge sheet filed are both within limitation. Whether the offences of which the petitioner is charged is within limitation is also for the trial Court, on the basis of evidence on record, to determine. Suffice to state that unless a clear case of the charge sheet filed and cognizance taken therefrom being barred by limitation is made out, the jurisdiction of this Court under section 482 Cr. P. C. cannot be invoked. ( 12 ) THE criminal petition is allowed in part and the proceedings in C. C. No. 552 of 2000 on the file of the IV Additional Munsif magistrate, Warangal, insofar as Section 498- a IPC. Is concerned are quashed. P. C. cannot be invoked. ( 12 ) THE criminal petition is allowed in part and the proceedings in C. C. No. 552 of 2000 on the file of the IV Additional Munsif magistrate, Warangal, insofar as Section 498- a IPC. Is concerned are quashed. Except insofar as the charge sheet relating to an offence under Section 498-A IPC is concerned, the criminal petition in all other respects is dismissed.