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2010 DIGILAW 878 (CAL)

Sourendra Nath Mukherjee v. Suparna Mukherjee

2010-07-28

KALIDAS MUKHERJEE

body2010
Judgment : KALIDAS MUKHERJEE, J.: 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure praying for quashing of the proceedings arising out of the Tala P.S. Case No. 48 of 2009 dated 10.8.2009 under Section 498A/376/420/506 (II) of the Indian Penal Code. 2. It is the case of the prosecution that O.P. No. 1 being the complainant filed a petition of complaint before the learned Additional Chief Judicial Magistrate, Sealdah and by order dated 04.7.2009 the learned Court directed Tala P.S. to treat the said complaint as FIR, to investigate and report. Thereafter, Tala P.S. has registered a case being Tala P.S. Case No. 48 of 2009 dated 10.8.2009 against the petitioner under Sections 498A/376/420/506 (II) of the Indian Penal Code. In the petition of complaint it has been stated that she is the legally married wife of the accused/petitioner herein and their marriage was registered under the Special Marriage Act on 01.2.2003. It has been alleged that prior to the said registration of the marriage, the complainant was taken by the accused to 26, Kali Temple Road, Kolkata 700026, put vermilion on her forehead and put the conch bangles on the wrist of the complainant by chanting “mantras”. Prior to the registration of the marriage, an application under Form No. IV was duly filled up and submitted before the authority. It was further alleged that earlier in the year 1999 the accused met the complainant in the T.V. Serial at Tollygunge and since then the intimacy developed which culminated in the form of marriage and they started to live together at 123/7, Gopal Lal Thakur Road, Baranagar, P.S. Baranagar and it was further alleged that a male child was born in the year 2004. It has been alleged that on and from the year 2005 the accused started neglecting the complainant and the relationship became strained. The accused deserted the complainant on 4.7.2005 without any cogent reason. The accused has started holding out threats to the complainant for kidnapping her minor child and committing the murder of the complainant. The accused has instituted proceeding for nullity of the marriage which is now pending before the Court of learned Additional District Judge, 7th Fast Track Court, Alipore. The accused deserted the complainant on 4.7.2005 without any cogent reason. The accused has started holding out threats to the complainant for kidnapping her minor child and committing the murder of the complainant. The accused has instituted proceeding for nullity of the marriage which is now pending before the Court of learned Additional District Judge, 7th Fast Track Court, Alipore. Of late, the accused has divulged that he has got another wife and children and as such, he is denying the petitioner as his wife and also the child as his son, although, the petitioner never saw another wife or the children of the accused. The accused at the time of marriage with the complainant filled up the form under Section 15 of the Special Marriage Act, 1954 describing himself as unmarried. 3. It is the case of the petitioner herein that the said criminal case was filed only to harass the petitioner and to obtain some unlawful gain. It is the contention of the petitioner herein that the O.P. No. 1 was previously married on three occasions, the first of which took place in the year 1990 with Mr. P. K. Saha at Chandannagore. The said marriage was dissolved. The second marriage was solemnized in the year 1993 with Shri Samar Nath Chakraborty which did not last long and ended in divorce. On 28.4.1997 the O.P. No. 1 got married with Shri Supratim Sarkar for the third time which is still subsisting and the O.P. No. 1 has been living with him at 123/9/4, Gopal Lal Tagore Road, P.S. Baranagar and 7, Bhabanath Sen Street, Kolkata – 700004. The petitioner herein being apprehensive of the claim of the O.P. No. 1 to be the wife, filed a suit for decree of nullity in respect of the alleged marriage in the Court of learned District Judge, Alipore. In the said suit the O.P. No. 1 prayed for alimony pendente lite and the cost of litigation which was granted by the learned Court, but, the Hon’ble court on being moved by the petitioner stayed the order of alimony pendente lite and the cost of litigation upon a contested hearing in C.O. No. 2801 of 2008 which awaits final adjudication. 4. 4. An application bearing C.O. 3211 of 2008 by O.P. No. 1 was moved before the Hon’ble Court praying for enhancement the quantum of alimony pendente lite which was directed to be heard along with the other application. The O.P. No. 1 earlier moved an application for maintenance under Section 125 Cr.P.C. being Misc. Case No. 399 of 2006 before the learned ACJM, Barrackpore against the petitioner and the proceeding thereof has been stayed till the decision of the Civil Suit filed by the petitioner. 5. The O.P. No. 1 moved the Hon’ble Court against the said order being CRR No. 4104 of 2007, but, the order passed by the learned Court below was affirmed. The interim order for maintenance in connection with the said proceedings as made by the O.P. No. 1 was also rejected in revision by the learned Additional Sessions Judge, Barrackpore. The parties are litigating since 2004 before the competent Courts of law and up till now the O.P. No. 1 failed to obtain any order of the Court regarding her claim as the legally married wife of the petitioner. It is contended by the petitioner herein that the FIR against this petitioner do not disclose any offence and there was deliberate and willful suppression of material facts in the petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. 6. Mr. Moitra and Mr. Basu have appeared on behalf of the petitioner. Mr. Moitra contends that a suit bearing No. T.S. 120 of 2004 was filed by the petitioner in the year 2004 praying for nullity of marriage. It is submitted that the order regarding alimony pendente lite as well as the litigation cost were set aside. It is contended that in the year 2006 the case under Section 125 Cr.P.C. was filed by the O.P. which was stayed by the Hon’ble Court till the disposal of the suit filed by the petitioner. It is submitted that in the suit the cross-examination of P.W. 1 (petitioner) was going on and at that stage in the year 2009 the petition of complaint was filed by the O.P. which was sent to the P.S. under Section 156(3) Cr.P.C. It is contended that in the petition of complaint, the lady claimed to be the legally married wife of the petitioner. 7. Mr. 7. Mr. Moitra submits that the O.P. earlier married for the third time and she has been living with the third husband and in order to put pressure upon the petitioner the petition of complaint was filed. Mr. Moitra submits that the complaint which was filed in the year 2009 was hit by limitation and the offence alleged under Section 498A I.P.C. is not continuing one. 8. Mr. Moitra submits that it has been alleged in the petition of complaint that the petitioner herein deserted the O.P. on 4.7.2005 and the complaint was filed in the year 2009. It is contended that no complaint was lodged with any authority under the law during such period. 9. Mr. Basu also appearing on behalf of the petitioner submits that there is no difference between the case under Section 125 Cr.P.C. and the complaint sent to the P.S. under Section 156(3) Cr.P.C. It is submitted that since the determination of the marital status between the parties is pending in the competent Civil Court, the allegation under Section 498A I.P.C. will not stand, if the petitioner is not held to be the husband of the O.P. It is also contended that if it is held in the suit that the petitioner is the husband in that case the allegation under Section 376 I.P.C. will not stand. As regards the allegation under Section 420 I.P.C. it is submitted by Mr. Basu that there is no basis of such allegation as it has been stated in the petition of complaint that if it is found that before marriage with the complainant the accused/petitioner herein married earlier and the said marriage was subsisting in that case the accused will be liable under Section 420 I.P.C. Mr. Basu contends that the facts complained of must be definite and the complaint is not maintainable on the basis of such ‘if’ and ‘but’. Mr. Basu further submits that the allegation under Section 506(II) I.P.C. is ornamental in a petition of complaint and as the other three allegations are on the face of it are not maintainable, the alleged offence under Section 506 (II) I.P.C. will have no significance. 10. Mr. Mr. Basu further submits that the allegation under Section 506(II) I.P.C. is ornamental in a petition of complaint and as the other three allegations are on the face of it are not maintainable, the alleged offence under Section 506 (II) I.P.C. will have no significance. 10. Mr. Basu contends that on 13.2.2008 the Hon’ble Court in CRR No. 4104/2007 was pleased to direct that the proceedings under Section 125 Cr.P.C. will be kept in abeyance till the decision of the Civil Court in the suit and knowing it fully well, the O.P. herein filed the petition of complaint in July, 2009 suppressing that material fact in the petition of complaint. 11. Mr. Basu further submits that in the petition of complaint it has been stated that an application was filed before the Hon’ble Court bearing No. 2801 of 2008 against the order for alimony pendente lite with the cost of litigation, but, no fruitful purpose was served by the filing of that Revisional Application. Mr. Basu thus contends that the complainant suppressed this fact also in the petition of complaint, in as much as, the order of stay in respect of the grant of alimony pendente lite and the cost of litigation was passed after contested hearing. 12. Mr. Basu contends that suppression of these two important material facts in the petition of complaint do constitute fraud which rendered the petition of complaint not maintainable and the same is liable to be quashed. It is contended that since fraud was practised it amounts to a nullity in the eye of law. Mr. Basu contends that the conduct of the parties is to be considered by the Court. 13. Mr. Basu contends that when the earlier proceedings under Section 125 Cr.P.C. were stayed by the Hon’ble Court, it is abundantly clear that the petition of complaint was filed with the intent to harass the petitioner and, therefore, the same is liable to be quashed. 14. Mr. 13. Mr. Basu contends that when the earlier proceedings under Section 125 Cr.P.C. were stayed by the Hon’ble Court, it is abundantly clear that the petition of complaint was filed with the intent to harass the petitioner and, therefore, the same is liable to be quashed. 14. Mr. Basu contends that the question whether the suppression made by the petitioner herein was material or not should be considered and inspite of the order dated 13.2.2008 passed by the Hon’ble Single Judge in CRR 4104 of 2007 directing that the proceedings under Section 125 Cr.P.C. be kept in abeyance till the decision of the Civil Court in the suit for nullity of marriage, the complainant could not claim herself to be the wife of the accused as alleged in the petition of complaint. It is the contention of Mr. Basu that the Hon’ble Court in Revisional case bearing C.O. No. 2801 of 2008 with C.O. No. 3211 of 2008 vide Order dated 7.12.2009 rejected the claim of the complainant for alimony and her prayer for enhancement of alimony made in C.O. 3211 of 2008 was also rejected. Mr. Basu submits that the malice has no manner of application to decide in the instant application under Section 482 Cr.P.C. and it is only to be considered whether the suppression of facts in the petition of complaint is material so as to vitiate the petition of complaint. 15. Mr. Satpati appearing on behalf of the State submits that the facts alleged, if disputed, would cut both ways and the marital status has not yet been determined. It is contended that the allegations under Sections 498A and 376 of the Indian Penal Code cannot go together and there is no allegation of cruelty either physical or mental, nor there was any allegation of dowry. It is submitted that on 13.2.2008 the Hon’ble Court was pleased to stay the proceedings under Section 125 Cr.P.C. and, subsequently, the complaint was filed which was sent to the P.S. under Section 156(3) Cr.P.C. Mr. Satpati submits that it has to be considered whether the facts complained of constitute any offence or not. Mr. Satpati submits that if it is held that the petitioner is not the husband of the O.P., the cohabitation would amount to rape in view of clause (iv) of Section 375 I.P.C. Mr. Satpati submits that the allegation under Section 376 I.P.C. will stand. Mr. Mr. Satpati submits that if it is held that the petitioner is not the husband of the O.P., the cohabitation would amount to rape in view of clause (iv) of Section 375 I.P.C. Mr. Satpati submits that the allegation under Section 376 I.P.C. will stand. Mr. Satpati has referred to and cited the decisions reported in (2008)3 SCC (Cri) 553 [Bhupinder Singh Vs. Union Territory of Chandigarh]; 2002 C.Cr.L.R. SC 324 [State of Karnataka Vs. M. Devendrappa and Anr.] 16. Mr. Bagchi appearing on behalf of the O.P. 1 submits that in an application under Section 482 Cr.P.C. the Court has to consider whether the facts complained of constitute any offence. It is contended that it was never disclosed by the accused that he was previously married. It is contended that none of the documents annexed with the application under Section 482 are required to be looked into and the scope of exercising power under Section 482 Cr.P.C. is very limited. It is submitted that in the application form which was filled up at the time of registration of marriage under the provisions of Special Marriage Act, the accused declared himself as unmarried and taking advantage of that cohabited with the complainant/O.P. herein and, as a result, a son was born. 17. Mr. Bagchi submits that it is the domain of investigation to arrive at the truth by collecting evidence and the investigation which has already been started by the order of the learned Magistrate cannot be stopped merely on the ground that the accused had earlier filed a suit for nullity of marriage. Mr. Bagchi submits that the observation made by the Hon’ble Court in the Revisional Application with regard to the alimony pendente lite and cost of litigation is limited to that proceeding only and it will not have any bearing on the instant criminal case instituted by the O.P. No. 1 herein. 18. Mr. Bagchi contends that there was misconception of facts and under such circumstances, the provision contained in Section 375 (iv) of the Indian Penal Code would come into play. Mr. Bagchi submits that if it is proved that the accused was married earlier, the consent in that case would be vitiated and the provision of Section 376 of the Indian Penal Code will apply. Mr. Bagchi submits that if it is proved that the accused was married earlier, the consent in that case would be vitiated and the provision of Section 376 of the Indian Penal Code will apply. As regards the averment made in the petition of complaint regarding ‘if’ and ‘but’ with regard to the earlier marriage of the accused, Mr. Bagchi contends that the complainant did not know that the accused was earlier married elsewhere and all on a sudden the accused divulged that he was married earlier and had got a son. It is contended that for arriving at the truth on that score it is necessary that the investigation should proceed in its own way by collecting the evidence. 19. Mr. Bagchi contends that the observation of the Hon’ble Court in connection with the order granting the maintenance pendente lite and with regard to the proceeding under Section 125 Cr.P.C., those orders are not material in the instant criminal case and because of the non-disclosure of the earlier order of the Hon’ble Court, it would not vitiate the petition of complaint filed by the complainant. Mr. Bagchi contends that the nature, approach and standard of proof in the civil and criminal proceedings are different and because of the institution of the earlier suit for nullity of marriage filed by the accused, the instant proceeding of the criminal case cannot be quashed. Mr. Bagchi has referred to and cited the decisions reported in 1980(1) SCC 554 [State of Bihar and another Vs. J.A.C. Saldanha and others] paragraph 29; (2008)3 SCC 553 [Bhupinder Singh Vs. Union Territory of Chandigarh]; 1992 (Suppl.) (1) SCC 222 paragraph 23 [State of Bihar and another Vs. P.P. Sharma, IAS and another]; 1996(1) SCC 542 paragraph 22 [State of Maharashtra Vs. Ishwar Piraji Kalpatri and others]; JT 2008(4) SC 456 paragraph 9 [Renu Kumari Vs. Sanjay Kumar & Ors.]; 2004(1) SCC 691 [State of M.P. Vs. Awadh Kishore Gupta and others]; 2005(4) SCC 370 paragraph 32 [Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another]; 2002(1) SCC 555 paragraphs 7, 9, 10 & 17 [Kamaladevi Agarwal Vs. State of W.B. and others]. 20. With regard to the decisions cited by Mr. Bagchi, Mr. Basu contends that the issues involved in those decisions were different and the factual matrix in those cases being different those decisions would not apply. Meenakshi Marwah and another]; 2002(1) SCC 555 paragraphs 7, 9, 10 & 17 [Kamaladevi Agarwal Vs. State of W.B. and others]. 20. With regard to the decisions cited by Mr. Bagchi, Mr. Basu contends that the issues involved in those decisions were different and the factual matrix in those cases being different those decisions would not apply. It is also contended that in those cases there was abuse of power by the administrative authority of the State. Mr. Basu has referred to the provision contained in Section 41 of the Evidence Act. 21. In the case of Kamala Devi Agarwal Vs. State of West Bengal and others it was held that criminal proceedings should not be quashed merely because of pendency of civil proceedings between the same parties, even if it be pending in a higher Court. It has also been held that nature and scope and the standard of proof required in civil and criminal proceedings are distinct. In paragraph 7, it has been observed by the Apex Court as follows:- “7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the F.I.R., even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction…….” In paragraph 9 it has been observed as follows:- “9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending…….” In paragraph 14 it has been observed as follows:- “14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint………..” It is the contention of Mr. Basu that the factual matrix in the case of Kamala Devi Agarwal Vs. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint………..” It is the contention of Mr. Basu that the factual matrix in the case of Kamala Devi Agarwal Vs. State of West Bengal and others and in Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another are different. 22. So far as the present petition of complaint is concerned it has been alleged that on 1st February, 2003 the marriage was registered under the provisions of Special Marriage Act and at that time accused described himself as unmarried. It has also been alleged therein that earlier on 22.8.2001 the accused took her to 26 Kali Temple Road and put vermilion on her forehead and put conch bungle on her wrist by chanting ‘mantras’. It is the allegation of the complainant that at the time of birth of the child, the accused described the complainant as his wife. It has been alleged that the complainant gave birth to a male child on 10.6.2004 and the accused applied to the Kolkata Municipal Corporation, Health Department for the registration of birth of the son and, accordingly, birth of the son was registered on 26.6.2004 wherefrom it would appear that the accused is the father of that son. It has further been alleged in the complaint that the accused opened savings account in the joint names of the complainant and the accused with the Shyambazar Branch of State Bank of India. The accused also arranged for getting the son Soukarja Mukherjee admitted in the Doon School, Dehradun. 23. It has been alleged in the complaint that the accused/husband started neglecting and showing indolent attitude towards the complainant when she conceived through the accused and he tried in many ways pressing upon the complainant for causing abortion, but, she did not agree to such proposal. It has been alleged that after the birth of the child the degree of negligence and barbarous mental and physical torture upon the complainant increased and the accused tried to oust her from the flat; thereafter the accused left the flat temporarily on 2.12.2004 and on 21.1.2005 he returned to the flat and started residing with her and the accused deserted the complainant on 04.7.2005. It has been alleged that the accused has given out threats to the complainant for kidnapping the minor son and committing the murder of the complainant. 24. It has been alleged in the petition of complaint that the accused initiated proceedings for nullity of marriage which is now pending before the learned Additional District Judge, 7th Fast Track Court, Alipore wherein the complainant preferred an application for alimony pendente lite for her and the child and also for litigation cost. The learned Court after considering evidence led by both sides was pleased to pass an order on 09.7.2008 directing the accused herein to pay alimony pendente lite for the petitioner and the child to the tune of Rs.2000/- and Rs.8000/- per month respectively besides the litigation cost of Rs.20,000/-. It has been alleged in the complaint that the accused challenged the said order passed by the learned District Judge before the Hon’ble High Court, but, it yielded no fruitful result. It has been alleged that if the accused has got another wife, how could he describe himself as an unmarried person at the time of filling up the required form under Section 15 of the Special Marriage Act and it is clear that he has intentionally suppressed the same for the purpose of committing rape upon the petitioner. The complaint was lodged under Section 498A/376/420/506 (II) of the Indian Penal Code. The petition of complaint was filed before the learned Court on 24.7.2009 which was sent to the Tala P.S. for causing investigation under Section 156(3) of the Cr.P.C. 25. On the other hand, the petitioner herein has instituted a suit praying for a decree for nullity of marriage. The suit bearing Mat. Suit No. 120 of 2004 was earlier filed before the learned Judge, Family Court, Calcutta which was withdrawn on the ground of refiling the same before the appropriate Court since the Family Court had no territorial jurisdiction in respect of that case. Thereafter the accused filed the suit before the learned District Judge bearing Mat. Suit No. 36 of 2006 which is now pending before the learned 7th Additional District Judge, Fast Track Court, Alipore. It is the contention of the petitioner/accused that the complainant was previously married on three occasions, the first of which took place in the year 1990 with Mr. Suit No. 36 of 2006 which is now pending before the learned 7th Additional District Judge, Fast Track Court, Alipore. It is the contention of the petitioner/accused that the complainant was previously married on three occasions, the first of which took place in the year 1990 with Mr. P. K. Saha at Chandannagore and the marriage was dissolved; the second marriage was solemnized in the year 1993 with Shri Samar Nath Chakraborty which did not last long and it ended in divorce; thereafter on 28.4.1997 the O.P. No. 1 got married with Shri Supratim Sarkar for the third time which is still subsisting and the complainant has been living with him. 26. In support of the Revisional Application the accused/petitioner has filed the copy of application form for opening the account with Allahabad Bank on 18.1.2006 by the complainant wherein she described herself as Suparna Sarkar, wife of Supratim Sarkar. The nomination form signed by Suparna Sarkar on 16.10.1996 was also annexed with the Revisional Application wherein Supratim Sarkar has been described as her husband. 27. The Xerox copy of the letter addressed to O.C., Bidhannagire (North) P.S. dated 18.1.2005 signed by one Bulbul Mukherjee, wife of Sri Sourendra Nath Mukherjee has been filed complaining against Suparna Chakraborty and others. The copy of another letter dated 17.1.2006 signed by Smt. Bulbul Mukherjee wife of Sri Sourendra Nath Mukherjee addressed to the Inspector in-charge, Bidhannagore (North) P.S. has been filed alleging that she received phone Calls giving out threats on her landline telephone and asked him to take immediate action. 28. In the case of Renu Kumari Vs. Sanjay Kumar and others (Supra) it has been held by the Apex Court in paragraph 6 as follows:- .“…………………….Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has the power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the Court may examine the question of fact. In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the Court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.” 29. Mr. Basu relied on the above observation of the Apex Court in the aforesaid decision. It is the contention of Mr. Basu that in spite of the direction of the Hon’ble Single Judge in the Revisional Application bearing No. 4104 of 2007 dated 13.2.2008 regarding the direction that the proceedings of the case under Section 125 Cr.P.C. be kept in abeyance, the complainant voluntarily and deliberately suppressed that fact in the petition of complaint which, if disclosed therein, would not have led the learned Magistrate to issue the direction for investigation under Section 156(3) Cr.P.C. 30. In the case of State of Madhya Pradesh Vs. Awadh Kishore Gupta and others it has been held by the Apex Court in paragraph 11 as follows:- “11. ………….It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which the cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole……………..” In paragraph 13 of the said case it has been observed by the Apex Court as follows:- “13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a Trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused…………..” In the case Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another it has been held by the Apex Court in paragraph 32 as follows:- “32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal Case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein…………………” 31. From the facts of the instant case as cited above, it appears that the material facts are disputed. It is true that the proceeding under Section 125 Cr.p.C. was kept in abeyance by the order of the learned Single Judge of this Court and the alimony of the complainant was subsequently rejected on final hearing by the learned Single Judge of this Court. Mr. It is true that the proceeding under Section 125 Cr.p.C. was kept in abeyance by the order of the learned Single Judge of this Court and the alimony of the complainant was subsequently rejected on final hearing by the learned Single Judge of this Court. Mr. Basu has drawn my attention to the observation of the learned Single Judge made in CRR 4104 of 2007 dated 13.2.2008 wherein the learned Single Judge observed as follows:- “So far as the present case is concerned the opposite party No. 2 has questioned the very relationship by filing an appropriate application before a Civil Court of competent jurisdiction. The Civil Court is in the seisin of the matter. The decision by the Civil Court is yet to be reached. Now, if at this stage this Court directs the learned Magistrate to proceed with the application under Section 125 Cr.P.C., the possibility of passing conflicting and contradictory decision by the respective Court over the same matter under issue cannot be ruled out. So far as the Civil Court is concerned the decision of the Civil Court will be binding on the Criminal Court in respect of the status of the person. So when the very basis of the case questioning the status of the persons are in issue, then in my view, no harm will be caused to the petitioner if further proceeding of the application under Section 125 Cr.P.C. is kept in abeyance till be decision of the Civil Court.” 32. Relying on the decision reported in Iqbal Singh Marwha and another Vs. Meenakshi Marwah and another, the observation made by the Apex Court made in paragraph 32 as quoted above, I find that the observation made by the learned Single Judge in CRR No. 4104 of 2007 would not be binding upon the complainant so far as the instant petition of complaint is concerned. Relying on the case of Kamaldevi Agarwal Vs. State of West Bengal and others I find that the approach, nature, scope and standard of proof in Civil and Criminal Proceedings are distinct and different. Disputed facts cannot be taken into consideration for quashing the proceedings under Section 482 Cr.P.C. 33. The non-mentioning of the order of the learned Single Judge passed in CRR 4104 of 2007 and the order of stay passed in the Revisional Application in the petition of complaint, would not vitiate the petition of complaint. Disputed facts cannot be taken into consideration for quashing the proceedings under Section 482 Cr.P.C. 33. The non-mentioning of the order of the learned Single Judge passed in CRR 4104 of 2007 and the order of stay passed in the Revisional Application in the petition of complaint, would not vitiate the petition of complaint. The non-mentioning of the aforesaid facts, therefore, cannot be said to be fatal to the prosecution case nor it can be said to be the suppression of material facts. The learned Counsel appearing for the State has produced the Case Diary wherefrom it appears that some witnesses have already been examined. At this initial stage of the proceedings and having regard to the disputed facts and the settled principle of law as discussed above, I am of the considered view that it would not be proper to consider whether the allegation under Section 498A/376/420/506(II) of the Indian Penal Code would be applicable or not. I think that it is not a fit case for quashing of the proceedings. 34. The application under Section 401 read with Section 482 Cr.P.C., therefore, stands dismissed. Interim order, if any, stands vacated. 35. Let a copy of this order along with the LCR be sent to the learned Court below immediately. 36. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible. Later: After the passing of the judgment, the learned Counsel appearing for the petitioner prays for stay of the operation of the order. The prayer is considered and refused.