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MAintainability of a Complaint

G. ARAVINTHAN ,
  18 September 2008       Share Bookmark

Court :
Supreme Court of India
Brief :
A. Criminal Procedure Code, 1973- Section-181(4) – Territorial Jurisdiction – Offence of criminal breach of trust and cruelty – case registered under sections. 406/498-A I.P. C. - Allegation that petitioners, in-laws husband harassed the complainant for nonfulfilment of dowry demand and retained her dowry articles- After being turned out form matrimonial home complainant filed complaint at place ‘J’ where she is staying with her parents-Divorce petition filed by husband also decided by court at place ‘J’ complaint filed before court at place “J’ – Maintainable. ( Para 7) B. Criminal Procedure Code, 1973- Sections, 200, 202- Complaint- Maintainability - Complaint alleging harassment and criminal breach of trust – Plea that complainant had earlier filed F.I.R. which was cancelled after investigation- Not tenable- Complaint filed before cancellation of F.I. R. - Complainant was given liberty by court to pursue the same- No benefit can be extended to petitioners on that court. (Paras 4, 12) C. Criminal Procedure Code, 1973 – Section- 200- Complaint delay in filing- Allegations levelled in complaint against petitioners that they had be maltreating and harassing the complainant on account of bringing insufficient dowry and kept her dowry articles with them- Axis of continuing offence – Complaint cannot be quashed on ground of laches or delay
Citation :
2007 Criminal Law Journal 2972
The petitioners are seeking quashing of criminal complaint (Annexure P. 18) and of the order dated 26-7-2004 (Annexure P. 27) passed by Judicial Magistrate 1st Class, Jalandhar, whereby they along with their son Anil Arora were summoned to face trial for offences punishable under Sections 406/498-A read with Section 34, IPC.

2. Intitially the complaint was filed against the petitioners, their son Anil Arora and eight others for the aforementioned offences. It was alleged therein that the marriage of complainant/respondent was solemnized with Anil Arora at Delhi on 3-12-1992. At the time of ring-cermony, Anil Arora had made a demand of Rs. 1,70,000/- as he needed the same for his business. A cheque was issued by the father of the complainant in his favour at the time of the engagement, the parents of the complainant gave articles, which included a Maruti 800 car. Even at the time of the marriage, the parents of the complainant gave huge dowry, details of which were mentioned in the list attached with the complaint. The same were handed over to Anil Arora and his other relatives, including the petitioners. In spite of the same, all the accused expressed dissatisfaction and claimed more dowry. They had been telling her that her parents should have given a Maruti Esteem car and the jewellery given by her parents was of inferior quality. She was tortured and harassed on that account. As a result, her pregnancy was aborted in January 1993. A year later, she again became pregnant. She was compelled by the accused to ask her father to mortgage his property in the bank for getting a loan for Anil Arora and his company, namely, M/s. Wings Plastic. Instead of doing so, the father of the complainant gave a sum of Rs. 1,32,000/-, which was deposed in the account of the aforementioned firm. Even in spite of that, the accused used to harass her claiming that the dowry articles were of inferior quality. In October, 1994, the accused called her parents to Delhi on the pretext of attending a function in the family. On 15-10-1994, when the parents of the complainant started on their return journey from Delhi, she was also forcibly put in the car stating that there was no place in their house for her unless their demands were met. The accused had been pressing upon the complainant to ask her father to transfer his immoveable property in the name of Anil Arora, as she was the only daughter of her parents. Even since then, she had been living along with her young child with her parents. Her husband Anil Arora filed a divorce petition at Delhi, which was transferred to the Court at Jalandhar, and it was finally dismissed. Claiming that she was maltreated by the accused for meeting their illegal demands of dowry and her dowry articles wrongfully retained by them, she sought action against the accused by filing the criminal complaint.

3. After perusing the preliminary evidence and the allegations contained in the complaint, learned Judicial Magistrate found sufficient grounds for summoning the petitioners and their son Anil Arora for the aforementioned offences. However, it was held that there was no substance in the allegations regarding the entrustment of the dowry to the eight other accused as all of them were married and had no concern with the dowry given by the parents of the complainant at the time of her marriage. Accordingly, none of them was summoned.

4. It is contended on behalf of the petitioners that the marriage of Anil Kumar with Renu Arora was solemnized at Delhi. Both of them stayed at Delhi thereafter. Any allegation of harassment or maltreatment besides retaining of dowry articles pertained to Delhi and thus, the Court at Jalandhar had no jurisdiction to entertain the complaint. It was also submitted that the complainant had earlier filed a complaint to the police, on the basis of which FIR was registered on 21 -11 -2001. The said FIR was thoroughly investigated and it was finally recommended for cancellation. On 23-7-2003, learned Judicial Magistrate did not accept the cancellation report and instead asked for further investigation. Even thereafter, the police investigated the matter and again presented the cancellation report, which was accepted by the Court on 24-4-2004.

5. It is also submitted on behalf of the petitioners that the act of harassment and maltreatment occurred in the year 1994, whereas the present complaint was filed only on 15-4-2002. Thus, the complaint was not sustainable on the ground of laches in its filing, besides having been filed beyond the period of limitation.

6. Learned counsel for the respondent submitted that it were the petitioners and their sons Anil Arora, who had forcibly send the complainant from her matrimonial home. All this while, the complainant had been ready and willing to go to the matrimonial home without any pre-condition but the accused were not willing to accept her there.

7. Taking up the question of jurisdiction of the Jalandhar Court, it may be noticed that after being turned out from the matrimonial home, the complainant is staying with her parents at Jalandhar. She has levelled allegations, which make out commission of offence under Section 406, IPC. As per the provisions of Section 181(4), Cr.P.C, the offence of criminal breach of trust may be enquired into or tried by a Court within whose jurisdiction any part of the property, which is the subject of the offence, was required to be returned or accounted for by the accused person. The complainant has specifically alleged that all the dowry articles have been retained by the accused. The divorce petition filed by Anil Arora was decided by the Court at Jalandhar. On that very day, a request was made to the accused to return the dowry articles to the complainant. Even on the following day, a similar request was made but the accused refused to return the dowry articles. The complainant is living at Jalandhar with her parents. She can, thus, validly ask for the return of dowry articles there. In the event of the accused not doing so, she can knock the doors of the Court at Jalandhar with her grievance.

8. In Ram Pal and another v. State of Haryana and another, 1991 (1) Crimes 566, this Court found justification in the action of the police to register an FIR at the place, where complainant-wife resided and required the return of dowry articles at that place. The provisions of Section 181(4), Cr.P.C. were relied upon to clothe the police of Police Station, Kalanwali with jurisdiction to investigate the case, as at that place the wife was residing when the FIR was registered. It was held therein as under :—

"On the point of jurisdiction, it transpires that the articles of dowry were entrusted at Kalanwali when the marriage took place and the petitioners are expected to return these dowry articles to her at her parents house in village Kalanwali where she is presently residing. According to sub-section (4) of Section 181 of the Code of Criminal Procedure, offence of criminal misappropriation or of criminal breach of trust may be enquired into and tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused person. Thus, at this stage it cannot be said that the property was not received at Kalanwali and that it was not required to be returned at village Kalanwali where the complainant at present resides. Thus, without completion of investigation, it cannot be said that the police of P. S. Kalanwali had no jurisdiction to investigate the case. Moreover, at the most it would amount to an irregularity under Section 462 of the Code of Criminal Procedure as the petitioners had failed to show whether any prejudice had been caused to them due to the investigation or enquiry conducted by the police of Police Station, Kalanwali."

9. In Mandeep Singh v. State of Punjab, 1997 (2) Rec Cri R (Criminal) 154, this Court reiterated that in matrimonial cases, the Court at the bride's residence had the jurisdiction to try the offence under Section 406 and 498-A, IPC, as the effect of physical cruelty in the shape of mental cruelty travelled to the said place. It was held in paras 11 and 12 as under :—

"11. The debtor must find its creditor is the basic law. Assuming for the sake of argument that this principle of contractual liability is not applicable to the matrimonial cases, still it is the husband who is to account for the dowry articles of his wife which were given in the shape of Istri Dhan. The case of the complainant is that right from the very beginning the family of the accused was not satisfied with the dowry articles.

They made a demand of Rs. Five lacs for the installation of a factory. The husband made false representation to the wife, so much so, threat was given to the wife for her liquidation and finally like a prudent lady, the complainant was left with no option but to say to her in-laws, the petitioner, her husband and her sister-in-law to return the dowry articles and this demand was made at Amritsar and once the demand has been made, it becomes obligatory on the part of the accused to account for those articles, and by not doing so, they prima facie committed an offence giving territorial jurisdiction to the Amritsar Courts and thus the finding of this Court is in consonance with the provisions of Section 181 (4) of the Code of Criminal Procedure, which lays down that any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required or accounted for by the accused person. The accused were bound to return the dowry articles/Istri Dhan of the complainant at Amritsar irrespective of the fact that they were residing outside Amritsar.

12. With the above discussion, now there is no difficulty to reply to both the questions formulated by this Court at the very outset that in matrimonial cases, the matrimonial Courts at the bride's residence have the jurisdiction to try the offences both under Sections 406 and 498-A Indian Penal Code."

10. Learned counsel for the petitioners, while relying upon Y. Abraham Ajith and others v. Inspector of Police, Chennai and another 2004 (3) RCR (Crl) 988: (2004 Cri LJ 4180) contended that as neither the marriage was solemnized at Jalandhar nor the parties lived at Jalandhar nor also the dowry articles retained at Jalandhar, therefore, the Court at Jalandhar had no jurisdiction.

11. In Y. Abraham Ajith (supra), it appears that no specific plea was taken on behalf of the prosecution or the complainant in terms of Section 181 (4) of the Code of Criminal Procedure. Accordingly, the attention of the Court was not drawn to the said provisions. What was pleaded on behalf of the complainant was that the offences under Sections 406 and 498-A, IPC were continuing in terms of Section 178(c) of the Code of Criminal Procedure and therefore, the Court at Chennai had the jurisdiction to deal with the matter. Accordingly, the Court coil-fined the discussion in respect of the interpretation of Section 178(c) as well as Section 177 of the Code and the discussion centered around "cause of actions Moreover it was observed while referring to the provisions of Section l78 (d) that where the offence consisted of several acts in different local areas, it may be inquired in to or tried by a Court having jurisdiction 'over any of such local areas. Finally it was held that the decision of the Hon'ble Supreme Court was based on the factual scenario disclosed by the complainant and on the said facts, it was held that no part of cause of action had arisen in Chennai and, therefore, the concerned Magistrate ha .d no jurisdiction to deal with the matter.

12. Coming to the question of presentation of cancellation report it may be noticed that when the same was accepted on 24-4-2004, it was noticed that the complainant had already filed a private criminal complaint. She was, accordingly, given liberty by the Court to pursue the same. Thus, no benefit can be extend to the petitioners on account of presentation of cancellation report and acceptance thereto at a later stage.

13. As, regards the objection of the petitioners regarding laches/delay in the filing of the complaint, it may be noticed that the offence under Section 406, IPC is a continuing offence. So long as the accused do not return, the dowry articles, they keep on committing the offence of criminal breach of trust,. In this regard I rely upon the following observations made by Hon'ble Division Bench in Balram Singh v. Sukhwant Kaur and another, 1991 (3) RCR (Crl) 404:—

"We find an element of continuance in the offence of criminal misappropriation in view of the extended definition of 'stolen property. The offence continues until the property which has been criminally misappropriated is restored to the true owner. We further find that the case of criminal misappropriation comes very close to one of the illustrations in Bests case (supra) cited in Deokaran Nenshil's case (1973 Cri LJ 347) (supra) in which it was held that the offence of withholding the money was a continuing offence, the basis of the decision being that every day that the money is wilfully withheld, the offence was committed.

In so far as precedents are concerned therefore, we find that there is no decision directly on the point of a Division Bench either of this Court or of any other High Court The Single Bench decisions in which a contrary view has been taken have been explained and we, therefore, find that the question as to the nature of the offence under Section 406 of the Indian Penal Code-whether it is continuing or a non-countinuing offence — has not been gone into and for the foregoing reasons, we hold that the offence under Section 406 of the Indian Penal Code is a continuing offence.”

14. In Suresh v. Mahadevappa Shivappa Danannava (2005) 3 Supreme Court Cases 670 (AIR 2005 SC 1047) relied upon by learned counsel for the petitioners, there was absence of ingredients of offence of cheating. Moreover, dispute was of civil nature. Facts of the case in hand are different. There were clear allegations levelled in the complaint against the petitioners that they had been maltreating and harassing the complainant on account of bringing insufficient dowry.

15. In view of the above, no case is made out for quashing the complaint or the summoning order in so far as they relate to the present petitioners. The petition is without any merit and is, accordingly, dismissed.

16. However, nothing expressed above shall be taken as opinion on the merits of the case.

17. At the time of the motion hearing of the petition on 21-7-2005, this Court had directed that appearance of the petitioners shall remain exempted on an application being filed by them before the trial Court on appropriate conditions. The said order of exemption shall continue during the trial of the case.

Petition dismissed.
 
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