ORDER This is a petition for quashing the order dated 18th March 2010 passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 3087© of 2009 whereby and whereunder the court has taken cognizance against the petitioner no.1 for the offence punishable under Section 420 of the Indian Penal Code and against Petitioner Nos. 2 & 3 for the offence under Section 406 of the Indian Penal Code. 2. The complaint petition has been filed by the Ex-wife who has already taken divorce from the petitioner No.1 whereas petitioner no.2 is Ex-father in-law (father of petitioner No.1) and petitioner No.3 is Ex-Mother in-law (mother of petitioner No.1) of the complainant O.P.No.2. The marriage was solemnized in between the petitioner No.1 and the O.P.No.2 in the year 1996. As it appears from the complaint petition, earlier they were friends but by efflux of time their friendship turned as relationship of wife and husband and they entered into marriage under the Special Marriage Act, 1954 on 21st November 1996 at Kolkata. The complainant for the period 6th September 2001 to July 2006 stayed at London with the consent of her husband for her higher studies. It appears that the petitioner no.1 started business in the year 2002 but could not succeed and failed. Allegation of trick and conspiracy has been averred in the complaint petition, as has been stated, in the year 2004, the petitioner insisted for opening of joint Bank account at Kolkata, accordingly, a Bank Account at Axis Bank at Shakespere Sarani Branch, Kolkata was opened and also an NRI Account was opened in same Bank in order to facilitate the transmission of money from London to India. It has been alleged that the accounts were opened deliberately in order to cheat the complainant as she was earning lady at London and her husband, petitioner No.1 was a failed business man who had always shown his inability to maintain himself and by playing game of trick extorted money from the complainant O.P.No.2. It has been alleged that she always believed the status of pauperization of petitioner No.1 and tried her best to support him by sending money for leading good and comfortable life in India. It has been alleged that for the period 2004 to 2009 heavy amount of Rs.12,00,000/- (twelve lacs) was taken from the O.P.No.2. It has been alleged that she always believed the status of pauperization of petitioner No.1 and tried her best to support him by sending money for leading good and comfortable life in India. It has been alleged that for the period 2004 to 2009 heavy amount of Rs.12,00,000/- (twelve lacs) was taken from the O.P.No.2. It has further been alleged that when she came to India, Petitioner No.1 was staying at Hydrabad where she wanted to live with him but had shown his inability to keep her in a rented house as he was living in a male paying Guest accommodation. The complainant stayed there as wife and husband in a Hotel but all the expenses were borne by her. 3. The complainant developed several diseases in London due to pressure of work as she used to do work for 16-17 hours which compelled her to return to India in the year 2006 and since then she tried to settle with the husband but it turned to be utterly failure. In India she could get a new job as Assistant Professor at Asian Development Research Institute on 4th December 2006 and started living with her parents at Patna. It has been alleged, while she was posted at Patna the petitioner No.1 continued to extract money from the complainant since April 2009, on emotional blackmailing giving a plea of financial liability and difficulty and also showing himself in a state of pauperization as Petitioner No.1 depicted story of not meeting the 2-meals of a day. After much introspection, the complainant as well as Petitioner No.1 decided for a separation of life, as they could not live together as wife and husband and ultimately a petition for mutual divorce was filed at Alipur, South 24 Pargana Vide Matrimonial Case No. 1085 of 2009 and the decree of divorce was passed, vide order dated 18th July 2009. It has further been alleged that even after the breaking of relationship, still the Petitioner No.1 extracted money from her by giving a sobbing story. It has further been alleged that even after the breaking of relationship, still the Petitioner No.1 extracted money from her by giving a sobbing story. In the complaint petition it has been alleged that the story of bigamous life of Petitioner No.1 was revealed after the order of divorce i.e. in October 2009 by accused No.3 (mother in-law), while talking to the common relative of the accused and the complainant from where she could know that accused Petitioner No.1 had entered into a relationship with one Sanchita Roy and having a male child. Then the complainant could realize the misrepresentation, fraud, cheating and criminal breach of trust committed by Petitioners. After enquiry, the complainant could know that the accused-Petitioner No.1 was leading a luxurious life by extracting money from the complainant whom he had long ago deserted and she complained that this act of the petitioners constitutes the offence of fraud, cheating, emotional torture and bigamy, claimed punishment of petitioners for the offences under Section 44 of the Special Marriage Act, 494, 495, 420, 120B, 324, 406 of the Indian Penal Code. The learned Judicial Magistrate, on the basis of averment in the complaint petition as well as the statement on S.A of the complainant, O.P.No. 2 including the evidences of witnesses, took cognizance under Section 420 of the Indian Penal Code against the petitioner No.1 whereas he took cognizance for the offence under Section 406 of the Indian Penal Code against the Petitioner Nos. 2 & 3 (the Ex-father in-law and Ex-mother in-law) of the complainant O.P.No.2. 4. In this case, petitioners are challenging the order of cognizance and made the following submissions: i) There cannot be any cheating in a transaction in between the wife and the husband, even if there is an element of deception. ii) There is an averment in the complaint petition and also in S.A. that the petitioner No.1 extracted money on false plea from his wife and the payment was made by the wife, even after breaking of marriage on 24th September 2009 will amount to condoning the action of Petitioner No.1 of his prior acts where the allegation of deception has been made against the Petitioner No.1 who is the Ex-husband of the complainant. iii) From the complaint petition it appears that all the alleged actions had taken place at Kolkata as the marriage was solemnized at Kolkata and later on the decree of divorce was also obtained from Kolkata. It has further been alleged that the accounts were opened at Kolkata from where the petitioner No.1 could allegedly extract money from the complainant while she was at London and as such, the Patna court has no jurisdiction to take cognizance. 5. Counsel for the petitioners in support of his contention on the point of cheating relied on the judgment reported in (2009)14 SCC 696 (Dalip Kaur v. Jagnar Singh) (Para-8 & 10), (2009)7 SCC 712 (Harmanpreet Singh Ahluwalia v. The State of Punjab) and on the point of territorial jurisdiction the petitioners relied on the judgments in the case of Y.Abraham Ajith. v. Inspector of Police, Chennai reported in (2004)8 SCC 100 on the ground that no cause of action has taken place within the territorial jurisdiction of Patna Court. 6. Counsel for the O.P.No.2 has vehemently opposed the submission of the counsel for the petitioners making a submission that the statement made in the complaint petition constitute an offence of cheating, even if the O.P.No.2 was the wife of petitioner No.1 and by playing fraud the Petitioner No.1 extracted heavy money from her depicting the story of pauperization. He has further submitted that the issue of cheating and misappropriation of money is based on mixed question of fact and law which cannot be decided at this juncture and can only be examined and decided at the stage of trial. In support of his contention, he has relied on the judgment reported in (1997)2 SCC 397 (Rashmi Kumar v. Mahesh Kumar Bhada) (Para 6,7,11, 13, 14 and 16). 7. Counsel for the O.P. No. 2 has further submitted that prior to dissolution of marriage, the O.P.No.2 was not knowing about the relationship of Petitioner No.1 with another lady and having a child from that wedlock. It has further been submitted that even after the divorce, the Petitioner No.1 being Ex-husband depicted a very sordid story about his status and the O.P.No.2 showing compassion on him remitted money to her Ex-husband i.e. Petitioner No.1. It has further been submitted that even after the divorce, the Petitioner No.1 being Ex-husband depicted a very sordid story about his status and the O.P.No.2 showing compassion on him remitted money to her Ex-husband i.e. Petitioner No.1. It has further been submitted, she could know from the common friends, i.e. complainant witness No.3, who stated that she had seen the petitioner No.1 i.e. Ex-husband keeping another lady at Hydrabad having a male child. It has further been stated, Patna court has a jurisdiction to entertain the case as it would appear from the Bank records that the O.P.No.2 had remitted money from Patna on the story narrated to her while she was at Patna which will be apparent from the statement of Enquiry Witness Nos. 2 & 3 at Para-4, 5 and 9 respectively. Counsel for the O.P.No.2 has fairly submitted that on the direction of Sessions Judge, Patna while hearing anticipatory bail filed on behalf of petitioner Nos. 2 & 3 they returned the ornaments but claimed for the offence under Section 406 IPC cannot be said to have been wiped out. 8. At the stage of taking cognizance only the prima-facie case has to be seen and it is well settled principle of law that at the time of cognizance the court has to consider the averment made in the complaint petition or the charge-sheet filed and it is not open to the court to sift or appreciate the evidence at that stage with reference to the material to come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is apparent from the record that there is an allegation of deception and extortion of money by giving a false story and during the subsistence of marriage entering into a marriage with another lady having a male child and claimed at the stage of pauperization extracted the money from the complainant O.P.No.2. It cannot be said that no prima facie case is made out. However, it is based on question of fact and law which cannot be decided at this stage and can be decided at the stage of trial. 9. Having considered the rival contention of the parties, from the complaint petition, basically all the allegations have been made against the Petitioner No.1, save and except of keeping the ornaments of O.P.No.2 by the Petitioner Nos. 9. Having considered the rival contention of the parties, from the complaint petition, basically all the allegations have been made against the Petitioner No.1, save and except of keeping the ornaments of O.P.No.2 by the Petitioner Nos. 2 & 3 who are father in-law and mother in-law as ornaments were kept in the locker of the Bank. It appears from the counter affidavit of the O.P.No.2 it self that the ornaments were returned during the pendency of the anticipatory bail application on the direction of the Sessions court. In this way, as on to-day all the ornaments lying with the Petitioner Nos. 2 & 3 in the Bank Locker have already been returned to the O.P.No.2. Except this allegation, there is no whisper of allegation against the father in-law and mother in-law (Petitioner Nos. 2 & 3) but they are facing this incarceration of litigation for their no fault and that too, for a fault of their son. This Court feels that as the ornaments have been returned to the satisfaction of the O.P.No.2, as such, it will be futile to prolong litigation against them as it will serve no purpose and will amount to futile litigation and harassment to the aforesaid two old people and, accordingly, the order of cognizance against the Petitioner Nos. 2 & 3 for the offence under Section 406 IPC is hereby quashed. 10. Let us examine the case against the Petitioner No.1 who is the husband of the O.P.No.2. So far the point of territorial jurisdiction of the Patna Court is concerned, it is a mixed question of fact and law and the averment shows that the money was remitted from Patna during the subsistence marriage as well as after separation of relationship of wife and husband. The case of Y.Abraham Ajith (supra) deals with a situation when no cause of action or part thereof takes place, only in that situation, the court taking cognizance will not have a jurisdiction to proceed with the matter. But the situation in the present case is quite different and, as such, the judgment relied on by the petitioners in connection with territorial jurisdiction of the Patna court will not be applicable. Accordingly, the issue of jurisdiction is decided against the petitioner No.1. 11. But the situation in the present case is quite different and, as such, the judgment relied on by the petitioners in connection with territorial jurisdiction of the Patna court will not be applicable. Accordingly, the issue of jurisdiction is decided against the petitioner No.1. 11. So far issue of cheating by the husband to the wife, as has been raised that there cannot be a cheating by a husband, even if money has been taken under deception, the issue of deception and misappropriation cannot be decided at this juncture as issue of jurisdiction is based on question of fact and law which is also apparent from the judgment that has been cited by the O.P.No.2 in the case of Rashmi Kumar (supra). 12. In this view of the matter, this Court does not find any error in the order of cognizance against the Petitioner No.1. He will have the liberty to raise all the points at the appropriate stage. Accordingly, this petition is allowed to the extent it relates to the Petitioner Nos. 2 & 3 and the same is dismissed so far it relates to Petitioner No.1.