Bhiranwan Devi vs Mrs. Aruna

K.K. Srivastava, J.—This is a petition u/s 482, Criminal Procedure Code seeking the quashing of complaint, copy Annexure P4, filed by the respondent, Mrs. Aruna for the offences punishable under Sections 406, 498-A read with Sections 120-B, 34, Indian Penal Code pending in the Court of Judicial Magistrate 1st Class, Patiala.

The respondent, Mrs. Aruna was married with Neel Kamal son of late Shri Arjan Dev and petitioner No. 1, Smt. Bhirawan Devi on 20.9.1991 at Patiala according to Hindu rites and ceremonies. The marriage was duly consummated and a daughter was born out of the wedlock on 14.11.1992 and she was named as Kanika. Respondent, Smt. Aruna is alleged to be a lady of quarrelsome nature and she used to pick up quarrel with her deceased husband and other family members on one pretext or the other. It is alleged that she used to insult her husband as well as his family members. The respondent used to go to the house of her parents without the permission of her husband and whenever her husband visited the house of her parents to bring her back she used to insult her husband and used to tell him that she did not like him and she asked the husband to leave her house. It is alleged that in February, 1994, the father of the respondent-Smt. Aruna expired and she left Bhatinda for attending the cremation alongwith her husband Neel Kamal who returned to Bhatinda after attending the cremation while the respon- dent stayed at Patiala. The respondent, however, visited Bhatinda after one week of the death of her father after attending the Bhog/ritual ceremonies of her deceased father. The respondent, however, stayed back at Patiala and while leaving Bhatinda she had allegedly taken alongwith her all the golden ornaments and other valuables without the knowledge and consent of her husband. The deceased, husband Neel Kamal visited Patiala on number of times and tried to bring the respondent back to her matrimonial house but each time she refused to do so. The respondent, thus, deserted her husband without any reasonable cause or excuse. Neel Kamal was much frustrated and disappointed and he consumed poison and committed suicide on 3.5.1997, a copy of the death certificate dated 1.4.1998 was enclosed as Annexure P1. A report was also lodged in that connection vide copy Annexure P2. It is further alleged that Shri Arjan Dev father of the deceased Neel Kamal could not bear the sudden death of his son Neel Kamal and he also expired on 13.5.1997 due to heart attack. The copy of the death certificate has been enclosed as Annexure P3 which is dated 21.5.1997. Shri Arjan Dev left behind his aged wife i.e. petitioner No. 1, unmarried daughter and a minor son who had no financial support as there was no earning male member left in the house. It has been contended that in this back- ground, the respondent with a view to harass, humiliate and torture the petitioners filed the impugned complaint in the Court of Judicial Magistrate, 1st Class, Patiala. The complaint has been filed for the offences punishable under Sections 498-A, 406, Indian Penal Code read with Section 120-B, Indian Penal Code. In the complaint it has been alleged, inter alia, that the respondent was harassed and tortured by her in-laws for the demand of dowry and that her in-laws have misappropriated the, dowry items/Istridhan belonging to the respondent. The impugned complaint is sought to be quashed on the grounds, inter alia, that the same has been filed after a lapse of four years from the alleged date of occurrence which clearly shows that it is an after-thought. Apart from it the impugned complaint is not maintainable as the husband and the father-in-law of respondent are no longer alive. The husband, Neel Kamal and the father-in-law Shri Arjan Dev both died due to indifferent attitude and insulting behaviour of the respondent who caused mental torture to both the deceased i.e. husband as well as the father-in-law. The respondent was residing separately from the petitioner since 1994 as she had left the company of the petitioners after three years of her marriage and now she has chosen to file the impugned complaint which contained false and fabricated facts. In the impugned complaint the petitioner No. 1 has been wrongly named as Vidya Wati instead of Bhiranwan Devi, which shows the callous attitude of the respondent and it also indicates her non-cooperation and harassment qua the petitioners. The respondent has already taken away the items of dowry and whatever items of dowry are lying at the house of the petitioners in the form of the furniture, the same can be taken by her without any restrictions or hitch. After the death of Neel Kamal, the husband of the respondent and Shri Arjan Dev, husband of petitioner No. 1 it is the moral and legal duty of the respondent to maintain the petitioners but the respondent instead of doing so has opted to harass and humiliate the petitioners by filing the impugned complaint. It has also been contended that the complaint deserves to be quashed only on the ground of delay and laches as it has been filed after a lapse of seven years.

Notice was issued to the respondent who put in appearance and filed her reply in the shape of her affidavit wherein she has reiterated the averments made in the impugned complaint about her being harassed by her deceased husband and deceased father-in-law for bringing more dowry. She has alleged that her husband Neel Kamal was a drunkard which was admitted by his father, Shri Arjan Dev in report, copy Annexure P2. Neel Kamal used to beat her at the instigation of the petitioners and father-in-law, Shri Arjan Dev under the influence of the liquor. It is further alleged that the respondent had a minor daughter who alongwith her was turned out of the matrimonial house as she could not fulfil their demand of bringing Rs. 50,000/- in cash. The allegations of the dowry items and jewellery having been taken away by the respondent have been denied as being made only with a view to create a difference. It was reiterated that all the dowry items were lying at the matrimonial house and with the petitioners. It has also been contended that there are specific allegations made in the impugned complaint. Explaining the delay in filing the complaint she has contended that she was turned out of the matrimonial house in the year 1994 and efforts were made to settle the deponent in her matrimonial house but the efforts failed hence the complaint was filed. The respondent alleged that the correct name of her mother-in-law was Vidya Wati and not Bhiranwan Devi.

The petitioners filed a counter-affidavit to the affidavit filed by the respondent wherein the averments made against them are categorically denied. Learned Counsel for the petitioners contended that the impugned complaint has been filed in the Court of Chief Judicial Magistrate, Patiala, a copy of which has been placed on record as Annexure P4. The petitioners filed a Criminal Miscellaneous Application No. 12039 of 1998 wherein it was mentioned in para 6 that the complaint was filed in the Court of Judicial Magistrate, 1st Class, Patiala on 12.2.1997. Para 6 reads as under:

"That no doubt there is no date on the complaint made by the respondent in the Court of Judicial Magistrate 1st Class, Patiala, yet the same was filed in the said Court on 12.2.1997."

The preliminary evidence of the complaint was recorded on 20.9.1997 and the statements of other witnesses were recorded on 8.11.1997 and 22.12.1997. The complaint was, thus, filed after a lapse of six years of the marriage and after three years of the turning out of the respondent from the matrimonial house. The husband of the respondent, namely Neel Kamal died on 3.5.1997 vide death certificate, copy Annexure P1. The father-in-law, Shri Arjan Dev died on 13.5.1997 vide the death certificate, copy Annexure P3. The complaint was, thus, filed after the death of both the husband and the father-in-law. The petitioners are the mother-in-law and the sister-in-law of the respondent. Petitioner No. 2 is the unmarried daughter of late Shri Arjan Dev and sister of the deceased Neel Kamal. The allegations have been made primarily and substantially against the deceased, husband Neel Kamal who is accused of indulging and consuming liquor and maltreating the respondent at the instigation of petitioner No. 1 and her husband late Shri Arjan Dev. There are no all egations against petitioner No. 2, Miss Neelima daughter of petitioner No. 1 and late Shri Arjan Dev. Even otherwise the participation of petitioner No. 2 in the incidents referred to in the impugned complaint cannot be held to be reasonable, proper and believable. The unmarried daughter of petitioner No. 1 and sister of the deceased Neel Kamal, the husband of respondent would hardly be in a position to harass and torture the respondent for the demand of dowry and would keep the dowry items with her. In these circumstances the complicity of petitioner No. 2 in the impugned complaint case does not appear to be believable. So far as petitioner No. 2 is concerned, her case is based upon the appraisal of facts averred in the petition and countered in the written statement filed by the respondent. In other words, the facts are highly disputed. The mere fact that the husband of the respondent, Smt. Aruna has since died, will not ipso facto lead to a reasonable inference that the only motive of the respondent in filing the impugned complaint case is malicious and with a view to harass and humiliate her mother-in-law i.e. petitioner No. 1. It cannot be said in the absence of a firm finding of fact that the averments made in the impugned complaint regarding the role of petitioner No. 1 in the offences complained against her in the impugned complaint are wholly baseless, false and frivolous and highly incredible. The death of the husband of petitioner No. 1 will also be a relevant circumstance to negative the averments made in the impugned complaint. At this stage, it may, however, be mentioned that the resultant effect, if any, of the death of the husband and father-in-law of the respondent on the averments made in the complaint may be relevant for consideration by the Trial Court while dealing with the trial of the main case.

Learned Counsel for the petitioners raised a plea of jurisdiction of the Chief Judicial Magistrate, Patiala to try the offences contained in the impugned complaint. A perusal of the impugned complaint, copy Annexure P4, will go to show that the marriage of respondent with late Shri Neel Kamal son of petitioner No. 1 and late Shri Arjan Dev was solemnised as per Hindu rites and ceremonies at Patiala on 20.9.1991. It has been averred in the impugned complaint that the dowry items were entrusted after the marriage to the deceased husband and his relatives including petitioner No. 1, the mother-in-law. In para 21 of the complaint it has been specifically mentioned that the brother of the complainant requested the accused to return back all the dowry articles of the complainant but they refused to return the same and were using the same in an illegal manner and thereby they have misappropriated the same without any legal right. In para 24 of the complaint it was specifically and categorically mentioned that the Court of the Chief Judicial Magistrate, Patiala had the territorial jurisdiction to try and decide the offences the divorce petition and a petition u/s 125, Criminal Procedure Code was also pending at Patiala which were filed by the complainant-respondent. Learned Counsel for the petitioner relied on the following judgments in support of his contention that the Patiala Court has no jurisdiction as the offence had not been committed within its territorial jurisdiction. In Pritbir Singh & Ors. v. Balwinder Kaur & Ors. 1993 (3) RCR 509 judgment of a Single Bench of this Court (G.S. Chahal, J. as he then was), it was held that as the cruelty was alleged to have been committed at the house of the in-laws in Amritsar, Batala Court had no jurisdiction to try the offence u/s 498-A of the Indian Penal Code. The learned Single Judge dealt with this question in para 6 of the judgment which reads, inter alia, as under :

"The offence u/s 498 of the Indian Penal Code, if any, was committed at her in-laws house at Amritsar and obviously the Courts at Batala had no jurisdiction to try that offence...."

The other authority relied on by the learned Counsel for the petitioners is also a decision of the learned Single Judge (G.S. Chahal, J. as then he was) in the case of Hari Prem Rastogi v. Union Territory, Chandigarh 1994 (1) RCR 5 in which learned Single Judge held that the acts of cruelty were alleged to be committed at Meerut and as such the Chandigarh Court had no jurisdiction. In para 4 of the judgment he held as under :

"The offence u/s 498-A, if any, is alleged to have been committed at Meerut and no case can be tried at Chandigarh for that offence. Under the Criminal Procedure Code, an offence has to be tried at the place where it is committed. Section 498-A does not fall under any exception given in the Code. The proceedings u/s 498-A are, thus, quashed on this short ground. The complainant shall have the right to seek her remedies in the proper Forum."

In Jagan Nath Suri & Anr. v. Babita 1998 (1) PLT 239 a learned Single Judge of this Court (K.S. Kumaran, J.) held that the alleged cruelty took place at Dehradun and as such the Court at Ferozepur had no jurisdiction to try the offence punishable u/s 498-A, Indian Penal Code. He, however, held that the offence punishable u/s 406, Indian Penal Code was committed within the jurisdiction of the Court at Ferozepur and as such the Court at Ferozepur had the jurisdiction to try the offence punishable u/s 406, Indian Penal Code.

Learned Counsel for the respondent, on the other hand, contended that the plea of jurisdiction has so far not been raised before the learned Magistrate. Apart from it, it has been contended that the harassment and torture caused to the respondent by the petitioners were committed at the parental house of the respondent and also where the alleged demand of dowry was raised. He has drawn the attention to the averments made in the impugned complaint wherein in paras 12,13,14 and 15 it was specifically mentioned and which read as under :

"12. That in the month of December, 1991 the accused No. 1, Neel Kamal, husband of the complainant and accused No. 4 (mother-in-law of the complainant) came to Patiala and the father of the complainant gave Rs. 20,000/- to the accused No. 3 i.e. the mother of the husband of the complainant, accused No. 1 thereby the mother of the complainant fulfilled their illegal demands of dowry.

That after one week of the birth of the daughter of the complainant, the accused No. 3 i.e. mother-in-law of the complainant, accused No. 4 i.e. sister-in-law of the complainant came at Patiala at see the daughter of the complainant namely Kanika, at that time the accused No. 4 (mother-in-law of the complainant) told the complainant that she was expecting that the complainant would deliver a male child but now she had delivered a female child and the accused No. 4 told the complainant that they will not accept the complainant.

That the mother-in-law of the complainant, accused No. 4 further told the complainant that they will accept the complainant only if the complainant will bring four golden bangles for Neelima i.e. accused No. 4 (sister-in-law of the complainant).

That in the month of November, 1992,. the accused No. 1 (husband of the complainant) accused No. 4 (sister-in-law of the complainant) came to the parental house of complainant at Patiala and at that time the parents of the complainant again fulfilled their illegal demands of dowry and four golden bangles for the accused No. 4 i.e. the sister-in-law of the complainant were given to the accused Nos. 1 and 4, and then they took the complainant and the daughter of the complainant with them to Bhatinda."

The question of the demand of dowry and harassment of the respondent and the cruel treatment meted out to her by petitioner No. 1 is dependent upon the proof of the respective allegations and the same cannot be assumed for the purpose of quashing. A careful perusal of the allegations made in the complaint would go to show that the demand made by petitioner No. 2 and her son and husband were raised at Patiala also and in that view of the matter the Patiala Court had prima facie jurisdiction to deal with the offence.

Lastly, it was urged by the learned Counsel for the petitioners that the complaint was filed belatedly and beyond the prescribed period of limitation. The marriage had taken place on 20.9.1991 when the entrustment of the dowry items are said to have been made to the deceased husband and his relatives including petitioner No. 1. The complaint was filed in the year 1996 which is beyond the prescribed period of limitation as set out in Section 468, Criminal Procedure Code. The question of entrustment of the dowry items and the limitation for filing the complaint within the period of prescribed limitation came up for consideration before the Hon''ble Supreme Court in the case of Smt. Rashmi Kumar v. Mahesh Kumar Bhada AIR 1997 SC 697. Dealing with the question of limitation for the offence u/s 468, Criminal Procedure Code the Hon''ble Supreme Court in the case of Smt. Rashmi Kumar (supra), held in para 15 as under:

"The next question that needs to be answered is: whether the complaint filed by the appellant in September, 1990 is time barred ? Section 468 of the Code prescribes period of limitation. Under Sub-section (3) thereof, the period limitation shall be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Since the offence alleged to have been committed by the respondent is punishable u/s 406, viz. criminal breach of trust, and the punishment of imprisonment which may extend to three years or with fine or with both, the complaint is required to be filed within three years from date of the commission of the offence. It is seen that the appellant has averred in paragraphs 21 and 22 of the complaint that she demanded from the respondent return of jewellery detailed in Annexure-I and household goods mentioned in Annexure-II on December 5,1987 and the respondent flatly refused to return the stridhana of the complainant-wife. In paragraph 22 of the complaint, it is stated that the complainant was forced to leave the matrimonial home in the manner described and the stridhana mentioned in Annexures-I and II belonging to the complainant was entrusted to the respondent-accused which he refused to return to the complainant. Thus she has averred that the respondent "has illegally, dishonestly and mala fidely retained and converted it to his own use which is clearly a criminal breach of trust in respect of the aforesaid property". The complaint was admittedly filed on September 10, 1990 meaning within three years from the date of the demand and refusal by the respondent. The learned Judge relied upon her evidence recorded u/s 200 of the Code. The learned Counsel for the respondent read out the text of the evidence to establish that the appellant had demanded in October, 1986 for return of the jewellery and that the respondent refused to do the same. Thus it constitutes refusal from which date the limitation period began to run and the complaint having been filed in September, 1990, is time barred; i.e. beyond three years. That view of the learned Judge is clearly based on the evidence torn of the context without reference to the specific averments made in the complaint and the evidence recorded u/s 200 of the Code. As stated earlier, the sequence in which the averments came to be made was the voluntary promise of the respondent and his failure to abide by the promise. It is incongruous to comprehend the demand for return of jewellery etc. at the stage when she was persuading him to take her into matrimonial home. Accordingly, we hold that the complaint was filed within the limitation.

In view of the law laid down by the Hon''ble Supreme Court the period of limitation for the offence u/s 468, Criminal Procedure Code will begin to run from the date the demand for the return of the dowry items was made and the date when the same was refused by the respondent. As per the allegations made in the complaint the demand was made within the period of limitation and the petitioner refused to return the dowry items.

In view of the foregoing discussion there is no merit in the contention of the learned Counsel for the petitioners that the period of limitation for the offence u/s 468, Criminal Procedure Code will run from the date of entrustment of the dowry items. The period of limitation would begin to run from the date the demand for the return of the dowry items by the complainant-respondent was made and the date when the petitioners refused to return the same. The relevant dates would be accordingly the date when the demand was raised by the complainant for the return of the dowry items and the date of refusal by the petitioners. These facts are yet to be borne into in trial and are to be determined at the trial by the Court of competent jurisdiction.

Resultantly, there is no merit in this petition which is dismissed.