APHC010145222019

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

[3333]

MONDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SMT JUSTICE V.SUJATHA

CRIMINAL PETITION NOS: 4696/2018 and 3026/2019

CRIMINAL PETITION NO: 4696/2018

Between:

Murarisetty Pencharla Narasimha Rao and Others ...PETITIONER/ACCUSED(S)

AND

The State of Andhra Pradesh and others ...RESPONDENT/COMPLAINANT(S)

Counsel for the Petitioner/accused(S):

1.G JAGADEESWAR

Counsel for the Respondent/complainant(S):

1.PAVANI SIVA KUMAR

2.PUBLIC PROSECUTOR (AP)

CRIMINAL PETITION NO: 3026/2019

Between:

Murarisetty Penchala Narasimha Rao, and others ...PETITIONER/ACCUSED(S)

State of AP and others ...RESPONDENT/COMPLAINANT(S)

Counsel for the Petitioner/accused(S):

1.G JAGADEESWAR

Counsel for the Respondent/complainant(S):

• 1.V R MACHAVARAM
• 2.PUBLIC PROSECUTOR (AP)

The Court made the following:

COMMON ORDER

These Criminal Petitions i.e., Crl.P.Nos.4696 of 2018 and 3026 of 2019 are preferred by the petitioners under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.514 of 2017 and D.V.C.No.12 of 2018 on the file the Court of Additional Judicial Magistrate of First Class, Kavali respectively.

2. Since these petitions are preferred by the same petitioners/accused Nos.1 to 3 and the complaint was preferred by the defacto-complainant who filed both C.C. and D.V.C., these Criminal Petitions are disposed of by way of a Common Order.

3. The accused Nos.1 to 3, who are the petitioners herein, are the father-in-law, mother-in-law and sister-in-law of the de-facto complainant/2nd respondent, respectively.

4. Brief contents of the charge sheet are that,

The marriage of the defacto-complainant was performed with Murarisetty Penchala Abhilash at Krishnam Rajeswaramma Kalyana Mandapam, Kavali on 21.04.2016 in the presence of the elders. At the time of marriage, the parents of the defacto-complainant gave Rs.10,00,000/- towards dowry and presented 40 sovereigns of gold and also gave 04.40 acres of land, situated at Chinthalapalem, Jaladanki Mandal. Prior to marriage, as Accused No.1, who is father-in-law of defacto-complainant, made the parents of defacto-complainant believe that he would execute Rs.1.50 Crore worth property in the name of LW4 i.e., his son, the parents of the defactocomplainant accepted for the marriage. After the marriage, defactocomplainant joined with her husband at Nellore and lived happily for some days. Subsequently, she came to know that her husband purchased a house at Bangalore with his own salary amount and by paying monthly EMIs. She also came to know that the accused executed the said house in the joint name of her husband and Accused No.2. It is further alleged that Accused Nos.1 to 3 colluded with each other intentionally and avoided to execute properties in the name of LW4 and also taken gold ornaments of the *defacto-*complainant. When the defacto-complainant questioned the same, the accused harassed her both mentally and physically and further demanded to bring additional dowry from her parents. Further, accused also abused the defactocomplainant in filthy language and demanded to bring additional dowry to continue her matrimonial life with her husband.

4. The same allegations are reiterated in the D.V.C. also by the de-facto complainant.

5. The learned counsel for the petitioners submitted that the petitioners are innocent and they are falsely implicated in the present cases. The 1st petitioner/accused No.1 is a retired bank employee and the defactocomplainant and her husband never lived with them and the defactocomplainant used to live at Bangalore since his son has been working as

Software Engineer there. Immediately, after marriage, upon instigation of the parents of the defacto-complainant, the defacto-complainant started demanding the petitioners for partition of properties. The 3rd petitioner is working at Hyderabad and she never resided along with her brother i.e., LW4. The son of the 1st petitioner purchased a flat at Bangalore jointly along with the 2nd petitioner for the sake of subsidy and reduction of interest rate and she never have any intention of cheating or to deceive her own son. The complaint filed by the defacto-complainant is without any prima facie proof or record and hence, the proceedings are liable to be quashed.

6. On the other hand, learned counsel appearing for the 2nd respondent contended that the alleged acts of the petitioners are sufficient to conclude that the petitioners committed offences punishable under Sections 420, 498-A of IPC and Sections 3 and 4 of Dowry Prohibition Act.

7. Learned Special Assistant Public Prosecutor too concurred with the submission made by the learned counsel for 2nd respondent.

8. Having heard the submissions made by Mr.G.Jagadeeswar, learned counsel for the petitioner, Mr.Pavani Siva Kumar, learned counsel for respondent No.2/de-facto complainant and on perusal of the material available on record, the point that arises for consideration is as follows:

"Whether the proceedings in C.C.No.514 of 2017 and D.V.C.No.12 of 2018 on the file of learned Additional Judicial Magistrate of First Class,

Kavali, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?"

9. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence.

10. The decision rendered by the Hon"ble Apex Court in State of Haryana and others v. Bhajanlal and others ¹ is considered as the guiding torch in the application of Section 482. At paras 102 and 103, the circumstances are spelt out as follows;

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do

¹ AIR 1992 SC 604

not prima facie constitute any offence or make out a case against the accused.

• (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
• (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
• (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
• (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
• (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
• (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

11. In the context of quashment of criminal proceedings initiated in matrimonial matters, the Hon"ble Supreme Court and this Court has delivered numerous decisions. It is relevant to refer to a few, at this juncture. The Hon'ble Apex Court

in Kahkashan Kausar @ Sonam v. State of Bihar² , held as follows:

"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

22.Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

12. In Preeti Gupta v. State of Jharkhand³ , the Apex Court held as under:

"24. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant

² 2022 LiveLaw (SC) 141

³ (2010) 7 SCC 667

observations of the court are reproduced in para 24 of the said judgment as under:—

"Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

"30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."

Keeping in view the above principles, I would like to examine the case on hand.

13. As per the report given by the defacto-complainant, the allegation made against the accused are that her marriage was performed on 21.04.2016 with LW4 i.e., Murarisetty Penchala Abilash, who is the son of the Accused Nos.1 and 2. The specific case of the defacto-complainant is that, at the time of marriage, Accused No.1 promised to execute a property worth of Rs.1.50 crore in the name of her husband, but subsequently, accused failed to execute the same and she was harassed both mentally and physically by demanding additional dowry. It is further stated that her husband was working at Banglore and that he purchased a House at Bangalore and the same was registered in the name of her husband and Accused No.2 jointly by cheating her husband. When she demanded to return the said house, accused Nos.1 and 2 abused her and her husband. Hence, the present complaint and the same was registered for the offences punishable under Sections 420 and 498-A I.P.C and Sections 3 & 4 of Dowry Prohibition Act.

14. For better appreciation of the case, this Court feels it appropriate to extract Sections 498-A and 420 of I.P.C., as under:

"498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term

which may extend to three years and shall also be liable to fine."

15. A perusal of Section 498-A IPC shows that when a marriage woman was subjected to cruelty by her husband or her relatives both mentally and physically, the ingredients of Section 498-A IPC would attract.

16. Section 420 of I.P.C. deals with punishment for the offence of "cheating".

Cheating is defined under Section 415 of I.P.C and it is as follows:

"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".

The essential ingredients to constitute the offence of cheating are:

There should be fraudulent or dishonest inducement of a person by deceiving him;

(a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

17. In "V.Y.Jose v. State of Gujarat⁴ " the Apex Court laid down following ingredients to constitute cheating.

"An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

(i) deception of a person either by making a false or misleading representation or by other action or omission;

(ii) fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

An offence of cheating may consist of two classes of cases:

(1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;

(2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused."

⁴ (2009) 3 SCC 78

18. In the present case on hand, the primary allegation of the defactocomplainant is that Accused No.1, at the time of marriage, promised to execute a property worth Rs.1.50 crores in the name of her husband but subsequently, he failed to execute the same. The further allegation is that she was harassed both mentally and physically by the accused demanding additional dowry. It is also alleged that the house purchased by her husband was registered in the name of Accused No.2 by cheating and with deceiving her husband and when she demanded for executing the same in her name, they abused her and her husband. Therefore, the primary allegation made by the defacto-complainant is that at the time of marriage, Accused No.1 promised to execute property worth Rs.1.50 crore but there was no specific mention regarding the schedule of the property which would be registered in the name of her husband and where it is situated. Without any specific mentioning about such property, it is simply stated that the property worth Rs.1.50 crore will be registered. It is not the case of defacto-complainant that she resided at her matrimonial house continuously for a longer period. She herself mentioned that after marriage, since her husband was working as Software Engineer, she along with her husband was resided at Bangalore. It is also not her case that her in-laws are residing along with her at Bangalore. It is also her case that her husband purchased house at Bangalore and got registered the same jointly in his name and in the name of her mother i.e. accused No.2 and it is stated that by cheating and deceiving her husband, the

accused intentionally registered the property jointly. It is an admitted fact that son of Accused No.1 purchased the house jointly in his name and in the name of Accused No.2 before marriage itself. In such a case the de-facto complainant cannot claim that her husband was cheated by his parents and got registered the flat in the name of Accused No.2.

19. Hence, entire recitals of the complaint filed by the defacto-complainant show that there are no specific allegations made against the petitioners herein that in what way she was harassed by the petitioners that too both mentally and physically. As discussed above, it is also not specifically mentioned that which property worth Rs.1.50 crore will be registered in the name of her husband, there is no written proof with regard to the promise made by the Accused No.1 that he will register the said property.

20. With regard to the petitioner No.3, she is working at Hyderabad and she never resided along with her brother and when such is the case, the petitioner No.3 along with her parents is implicated in the case under Section 498-A IPC, erroneous. When no specific allegations are attributed against the petitioners herein about the harassment meeted out by them towards defactocomplainant and about demanding of additional dowry, allowing the petitioners to undergo rigmorale of criminal trial is nothing but abuse of process of Court.

21. Accordingly, these Criminal Petitions are allowed. The proceedings in C.C.No.514 of 2017 and D.V.C.No.12 of 2018 on the file of learned Additional

Judicial Magistrate of First Class, Kavali, are hereby quashed against the petitioners herein.

As a sequel, miscellaneous applications pending, if any, in this petition, shall stand closed.

KGR

___________________ JUSTICE V.SUJATHA