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2017 DIGILAW 1271 (HP)

Rajni Devi Dhiman v. Abhishek Kaushal

2017-11-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition is maintained by the petitioner-accused (hereinafter to be referred to as ‘the accused’) under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter to be referred to as ‘Cr.P.C.’), for setting aside the impugned order dated, 25.10.2016, passed by the learned Judicial Magistrate, 1st Class, Court No. III, Una, H.P., in Case No. 19/2016, RBT No. 228- 1/2016, titled as Abhishek Kaushal versus Rajni Devi Dhiman. 2. The key facts, giving rise to the present petition, are that Shri Abhishek Kaushal (hereinafter to be referred to as ‘the complainant’) has filed a complaint against the accused, wherein he alleged that he is the resident of Industrial Area, Tehsil Mehatpur, District Una, (H.P.) and the accused has been living with him for the last 20 years with her free and sweet consent. The complainant further alleged that both the parties were living in social circle of relatives, friends and other social dignities, as husband and wife. The other people also had been accepting and recognizing them as husband and wife. As per the complainant, they have also celebrated ritual and ceremonies of ‘Granth Sahib’ for conducting their marriage. There are some instances of ‘WhatsApp’ massages, leading to presumption and assumption that the parties are husband and wife. The complainant further alleged that due to undue influence and coercion from the strangers and relatives, the accused has threatened the complainant to commit suicide, if the marriage tie is not broken by him. She was requested not to take such a drastic step to end her precious life and harass and lower the complainant in the estimation of relatives, parents, friends and dignitaries. She was further requested to wait for the adjudication of controversy between the parties, with respect to the marriage, pending in the Civil Court, but she began to shower filthy language and dirty and unsocial strictures on the bond and mind of the complainant to compel him to commit suicide alongwith her. According to the complainant, the accused further threatened him that in case he does not commit suicide alongwith her, she would leave a suicide note to entangle him in a murder case. She further tried to give back the dowry articles and ornaments to the complainant, if he agreed to break the marriage tie. According to the complainant, the accused further threatened him that in case he does not commit suicide alongwith her, she would leave a suicide note to entangle him in a murder case. She further tried to give back the dowry articles and ornaments to the complainant, if he agreed to break the marriage tie. She was requested to solve the controversy by Khangi assembly of the both the sides, but in vain. According to the complainant, the threatening words of the accused to commit suicide along with other threats, leading to break in the marriage ties, are looming large 24 hours on his mind, due to which, he has lost his sleep and may give him jolts of heart attack. He prayed that the accused be tried for the commission of offences under Sections 420, 499, 500 & 506 of the Indian Penal Code (for short ‘IPC). Thus, the complainant filed the complaint before the learned Trial Court, whereby he examined four witnesses in all including himself. He examined CW-1 Smt. Kusum Kaushal, CW-2, Smt. Anita Sharma, CW-3, Shri Rohit Sharma and also appeared himself in the witness box as CW-4. The witnesses in their testimonies, supported the contents of the complaint. In view of the evidence on record, the learned Trial Court held that there is no sufficient ground to proceed against the accused for commission of offences punishable under Sections 499, 500 & 506 of the IPC, but summoned the accused for the commission of an offence punishable under Section 420 of the IPC. Feeling aggrieved by the impugned order, dated 25.10.2016, the accused has preferred this petition. 3. Learned Counsel for the petitioner-accused has argued that the learned Court below, without appreciating the fact that no case was made out against the accused, even after going through the pleadings of the parties, has issued summons against the petitioner-accused under Section 420 of the IPC. He has further argued that as no case is made out, even after going through the evidence and the complaint, so the summoning order is required to be quashed. 4. He has further argued that as no case is made out, even after going through the evidence and the complaint, so the summoning order is required to be quashed. 4. On the other hand, learned Counsel for respondent No. 1 has argued that when the petitioner-accused has lived with respondent No. 1-complainant, as his wife and they were knowing each other for the last so many years, her refusal to live with him as wife, is an offence punishable under Section 420 of the IPC. He has further argued that the summoning order is not required to be interfered with. 5. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 6. The case of respondent No. 1-complainant is based upon the ‘WhatsApp’ messages and the fact that the accused remained with the complainant for some time as his wife and they are knowing each other for the last so many years. Further, his case is that he has lost his business and spent huge money upon the accused and so, her refusal to marry the complainant and live with him as wife, is a cheating. 7. To appreciate the aforesaid fact, I have gone through the averments contained in the complaint as well as the evidence adduced on behalf of the complainant. 8. In order to prove his case, the complainant examined his mother-Smt. Kusum Kaushal as CW-1. She alleged that the accused has relations with the complainant for the last 20 years and they remained in live-in relationship. They are recognized as husband and wife publicly. She further stated that the complainant has spent huge money upon the accused. As per her, when the accused and the complainant were asked to marry each other, the accused refused and asked the complainant to break the marriage ties. The accused threatened the complainant that in case, he does not break the marriage tie, she would commit suicide and entangle him in a murder case. She further stated that due to this kind of threatening given by the accused, the complainant is suffering from depression and he may suffer from heart attack, at any time. 9. Smt. Anita Sharma and Shri Rohit Sharma appeared in the witness box as CW-2 and CW-3, respectively. They also supported the versions of CW-1. 10. Complainant himself appeared in the witness box as CW-4. 9. Smt. Anita Sharma and Shri Rohit Sharma appeared in the witness box as CW-2 and CW-3, respectively. They also supported the versions of CW-1. 10. Complainant himself appeared in the witness box as CW-4. He stated that his father was an Industrialist and he had a Computer Coaching Institute. He was financially very strong and earned about Rs.1.50 lacs per month. He further stated that he is living with the accused since the childhood and are in live-in-relationship for the last 10-15 years. As per him, they are recognized publicly as husband and wife and they had also performed a secret marriage at home and Rohit is the witness to that marriage. He further alleged that he has spent huge money upon the accused and has lost his business. According to him, the accused has sent many ‘WhatsApp’ messages to him. When the complainant asked the accused to marry him, she flatly refused and now, she is threatening him that in case he does not break the marriage ties, she would commit suicide and entangle him in a murder case. Now, he is suffering from depression. 11. As far as the ingredients of Section 415 of the IPC are concerned, the same read as under: “415 Cheating: Whoever, by deceiving any person fraudulently or dishonestly induces the person, so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 12. The case was required to be proved that if facts, which do not exist, are made out to exist and thereby, the other person is put to disadvantage. However, in the instant case, neither there is anything on record to show that the accused has ever married the complainant nor there was any promise to marry the complainant. In these circumstances, it can safely be held that the offence punishable under Section 420 of the IPC is not made out against the accused-petitioner. However, in the instant case, neither there is anything on record to show that the accused has ever married the complainant nor there was any promise to marry the complainant. In these circumstances, it can safely be held that the offence punishable under Section 420 of the IPC is not made out against the accused-petitioner. At the same point of time, the statements of the parties recorded before the police, show that the parties had agreed to abide by the outcome of the civil litigation, pending in the Civil Court, with respect to the marriage,. There is also nothing on record to come to the conclusion that parties have ever married each other and the accused has put the complainant at loss, after deceiving him. On the other hand, when the statements of the parties were recorded before the police, the father of the accused had stated that they would abide by the outcome of the civil litigation with respect to the marriage, which is pending in the Civil Court. The ‘WhatsApp’ messages do not show that there was any marriage inter-se the parties. The present complaint and evidence do not make out any primafacie case against the accused-petitioner. It seems that the learned Court below, without any application of mind, had issued the summons against the accused, as no prima-facie case punishable under Section 420 of the IPC is made out, even after going through the complaint and the evidence, which has come on record. 13. The net result of the above discussion, is that the impugned order dated, 25.10.2016, passed by the learned Court below, summoning the accused, is without any application of mind and requires to be quashed and set aside. Ordered accordingly. The complaint against the accused-petitioner is without any basis, as there is no prima-facie case. Thus, the same is ordered to be dismissed. 14. Accordingly, petition is dismissed along with pending application(s), if any.