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2017 DIGILAW 210 (JK)

Mohd. Ramzan Bhat v. Sheila Rashid

2017-04-26

ALI MOHD.MAGREY

body2017
JUDGMENT : Ali Mohd. Magrey, J. 1. An interesting point is raised in this petition as to the effect of dismissal of the complaint filed under Section 420 & 120-B RPC and whether second complaint can be filed. Brief reference of the factual aspects as contended by the petitioner would suffice. 2. Respondent-Sheila Rashid (hereinafter referred to as "complainant") filed complaint before the Court of (2nd Additional Munsiff) Srinagar, on 03.02.2016, under section 420 and 406 RPC on the allegations detailed out as under: (i). "That respondent-complainant was married to one Imtiyaz Ahmad Bhat S/o. Mohammad Ramzan Bhat R/o Drangbal, Pampore, Kmr. and the marriage was solemnized between the complainant and Imtiyaz Ahmad Bhat on 7th June 2015 strictly in accordance with the Shariat of Muslim Law applicable to the parties. (ii). That for the first seven days of marriage, the relation between respondent-complainant and Imtiyaz Ahmad Bhat remained normal and it is stated that after seven days of marriage when respondent resumed the matrimonial ties with Imtiyaz Ahmad Bhat, and her in-laws i.e. other accuses persons has stated that the behaviour of accused persons suddenly changed towards the complainant. (iii). That Imtiyaz Ahmad Bhat, is stated to be working in a private company at Dubai, which the complainant came to know later and he without information to complainant left his house and had gone to Dubai. It is stated that the complainant tried very hard to contact Imtiyaz Ahmad Bhat through WhatsApp but there was no such response from him, as such, the Complainant had reasonable belief that she has been cheated by Imtiyaz Ahmad Bhat in connivance with Other accused persons i.e. petitioners. (iv). It is stated that complainant remained in the matrimonial home and stayed with in-laws with the belief that Imtiyaz Ahmad Bhat will definitely contact with her, but despite passage of time he even did not contact the complainant and complainant finally asked other accused persons of her desertion by Imtiyaz Ahmad Bhat and reasons of being maltreated by accused persons. It is stated that complainant has been mercilessly beaten and thrown out of her matrimonial home by petitioners-accused and the complainant has taken shelter at Natipora, Srinagar, with her mother. (v). It is stated that complainant has been mercilessly beaten and thrown out of her matrimonial home by petitioners-accused and the complainant has taken shelter at Natipora, Srinagar, with her mother. (v). It is stated that the complainant informed her own relatives about the incident but Mohalla Committee, Drangbal, Pampore, did not succeed to ascertain the reasons of desertion and maltreatment towards the complainant by accused petitioners. (vi). It is stated that the complainant even informed the petitioners to return the entrusted property but the accused persons refused to return the same therefore the complainant is stated to have a reasonable belief that petitioners have misappropriated the entrusted property or have disposed of the same without any authority by the complainant. Hence file the complaint before the 2nd Additional Munsiff Srinagar." 3. Learned Judicial Magistrate 1st Class (2nd Additional Munsiff) Srinagar, on the ground of lack of territorial jurisdiction returned the complaint to the respondent-complainant for presenting the same before the Court of competent jurisdiction in terms of order dated 13.12.2016. 4. Feeling aggrieved of order of 2nd Additional Munsiff, Srinagar, respondent-complainant filed a Criminal Revision against the same order before the Principal Sessions Judge, Srinagar, and the Principal Sessions Judge Srinagar, in terms of order dated 17.04.2017, while accepting the revision set aside the order with direction to the parties to appear before the Trial Court on 28.04.2017. 5. During the pendency of the Revision petition, before the Court of Principal Sessions Judge, Srinagar, respondent-complainant has filed yet another complaint under section 420 & 120-B RPC before the Court of Judicial Magistrate 1st Class (2nd Additional Munsiff,) Srinagar, which complaint has been dismissed by the 2nd Additional Munsiff, Srinagar, in terms of order dated 06.12.2016. 6. Respondent-complainant is stated to have filed another complaint under section 420, 120-B RPC on the same set of allegations and grounds before the Court of Judicial Magistrate (3rd Additional Munsiff) Srinagar, on 10.12.2016, and the Learned Magistrate in terms of the said order has while postponing the issuance of process in the meanwhile, directed SP, South to investigate the matter in light of averments made in the complaint under Section 202 Cr. P.C. for ascertaining the truth or falsehood of the complaint and submit report before the Court within week's time positively. 7. P.C. for ascertaining the truth or falsehood of the complaint and submit report before the Court within week's time positively. 7. Petitioners further submit that respondent-complainant has also filed an application before the Chief Judicial Magistrate, Srinagar, seeking relief under "J&K Protection of Women From Domestic Violence Act." 2010. 8. Petitioners are seeking quashment of the complaint pending before the Court of 3rd Additional Magistrate (3rd Additional Munsiff) Srinagar, and the order passed on 10-12-2016, besides other grounds on the ground that 2nd complaint on same facts after dismissal of first one is not maintainable. 9. Learned counsel for petitioner has while reiterating his pleadings and strengthening his arguments referred to and relied upon the judgment of Supreme Court reported in (2004) 13 SCC 269 , 2013(2) SCC 435 . 10. On the other side, Mr. M.A. Qayoom, learned counsel appearing for respondent-complainant submits that the complaint filed before the Court of Judicial Magistrate (2nd Additional Munsiff) Srinagar, and the said court having returned the complaint on the lack of jurisdiction in terms of order dated 13.12.2016, has been reversed by the Learned Principal Sessions Judge, Srinagar, in terms of order dated 17-04-2017, and the complaints is now pending decision before the said court therefore, the arguments that the complaints filed by respondent-complainant are dismissed one after another has no substance. 11. Heard learned counsel for the parties, perused the record and considered the matter. 12. Perusal of the record reveals that the respondent-complainant has in quefiled four complaints one after another detaining out the allegations with reference to date, time and venue of occurrence. 13. Admittedly, out of four complaints, three are pending and one has been dismissed by the Court of Judicial Magistrate 1st Class (2nd Additional Munsiff) Srinagar, in terms of order dated 06.12.2016, the complaint filed under section 420 (420. 13. Admittedly, out of four complaints, three are pending and one has been dismissed by the Court of Judicial Magistrate 1st Class (2nd Additional Munsiff) Srinagar, in terms of order dated 06.12.2016, the complaint filed under section 420 (420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceives to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.) & 120-B (120-B. Punishment of criminal conspiracy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.) RPC before the 2nd Additional Munsiff and dismissed by him contains the same allegations as are contended in the complaint filed before 3rd Additional Munsiff, wherein the order impugned has been passed. 14. Perusal of the order impugned and complaint reveals that this is second complaint on same facts after disposal of first one. 15. On the strength of law laid down by the Hon'ble Supreme Court, in case titled "Poonam Chand Jain & Anr. v. Fazroo" reported in " (2004) 13 SCC 269 " the 2nd complaint is not maintainable. 16. Not only that first complaint filed by the respondent-complainant and initially dismissed by the Judicial Magistrate (2nd Additional Munsiff) Srinagar, vide order dated 13.12.2016, is now restored after reversal of the order passed by the said Magistrate by the Principal Sessions Judge. 17. In the above background, this petition is allowed and the complaint pending before the court of 3rd Additional Munsiff (Judicial Magistrate) Srinagar, is quashed and order dated 10.12.2016, passed by the said Magistrate is set aside. 17. In the above background, this petition is allowed and the complaint pending before the court of 3rd Additional Munsiff (Judicial Magistrate) Srinagar, is quashed and order dated 10.12.2016, passed by the said Magistrate is set aside. Any observation made in this order shall not come in the way of the Trial Court while deciding the pending complaint, after the same has been restored by the Principal Sessions Judge Vide order dated 17.04.2017. 18. Registry to send down a copy of this order to all the concerned Magistrates for information and compliance. Disposed of.