Mahalakshmi and Others vs State and Others

C.T. Selvam, J.—This petition has been filed under Section 482 of Cr.P.C, seeking to quash the proceedings in Crime No. 88 of 2014 on the file of Inspector of Police, Sivakasi Town Police Station, Sivakasi.

Heard learned counsel for petitioners and learned Government Advocate (Crl. Side) for first respondent.

The case stands registered for offences under Sections 406, 420, 506(i) r/w 109 I.P.C. The first petitioner is the wife of the de facto complainant, while the second and third petitioners are her father and brother respectively. The fourth petitioner is an advocate.

The complaint informs that second respondent/ de facto complainant and the first petitioner are husband and wife and that they had a minor son and daughter. The couple lived happily till 2012. Thereafter the first petitioner developed illicit intimacy with the fourth petitioner, an advocate. The fourth petitioner made all out efforts to cause a division between husband and wife by advising the wife to impute mental illness to the second respondent. The second respondent was referred to hospital and using such position the first petitioner walked out on him and thereafter at the instance of fourth petitioner, the first petitioner preferred a false complaint alleging cruelty on 31.07.2012. The issue was settled at the police station. However, as the first petitioner failed to cohabit with him, the second respondent filed H.M.O.P.153 of 2012 on the file of Sub Court, Sivakasi seeking restitution of conjugal rights. Despite an order passed on 11.09.2012, the first petitioner refused to cohabit. The second respondent moved a petition for guardianship of minor children before the District Court, Virudhunagar District at Srivilliputhur. On the advice of elders, the illicit relationship between the first petitioner, his wife and the fourth petitioner/advocate was not informed in the petition for divorce moved before Sub Court, Srivilliputhur on 15.10.2012. Petitioners 2 to 5 joined the petitioner/wife in threatening to do away with the siblings of the de facto complainant. Hence, the second respondent withdrew the case preferred by him. In such circumstances, the petitioners threatened and obtained a power of attorney from the second respondent/ de facto complainant in respect of an extent of 38 cents belonging to him on 07.02.2013. He was threatened against disclosing the same. The second respondent survived by secretly informing the position to his relatives and friends. On subsequent enquiry at the concerned Sub Registrar''s office, the second respondent/ de facto complainant learnt that the first petitioner/wife had effected sale of the de facto complainant''s/second respondent''s property to her father, the second petitioner on 08.02.2013 for a sum of Rs.21,00,000/-. The second petitioner in turn had executed a settlement deed in favour of the first petitioner on 19.02.2013. On such allegations the case has been registered for offences under Sections 406, 420 and 506(i) r/w 109 I.P.C.

The first petitioner/wife had preferred a complaint against her husband on 31.07.2012. In the course of police enquiry thereon the parties have been counselled and the second respondent had under his own hand informed of the ill-health of his wife, resulting in loss of normal marital indulgences, being the cause of the dispute between them and that he would provide appropriate medical treatment for the wife. He had also undertaken that he would return the wife''s jewels which he had pledged towards building a house. Thereafter, a power of attorney had been executed by the second respondent/husband in favour of his wife on 07.02.2013. In exercise thereof, the first petitioner had sold the property to her father, the second petitioner, who in turn effected settlement in her favour on 19.02.2013. The second respondent had cancelled the power of attorney on 16.09.2013 and executed a settlement deed in respect of the property in favour of his brother and such brother had caused notices to the tenants in occupation of the property. Even in the further proceedings under the Guardian and Wards Act no allegation such as those found in the complaint were made. For the first time allegations stand made in the complaint and both petitioners 1 to 3 and the advocate who appeared for the 1st petitioner in a civil suit moved by her has also been implicated. The first petitioner/wife had filed O.S.No. 95 of 2014 on the file of District Munsif Court, Sivakasi on behalf of herself and minor children seeking injunction against the second respondent and another in dealing with property, claiming it to be the inherited property of the husband.

Referring to the typed set of papers, learned counsel for petitioners submitted that both the husband and wife had been in consultation with a psychiatrist, who prescribed medicines and since the fourth petitioner is her counsel he has been falsely implicated.

Learned counsel for the second respondent would submit that upto the year 2012, there was no dispute between the first petitioner and the second respondent/ de facto complainant. However owing to illicit intimacy between the first petitioner/wife and fourth petitioner/advocate disputes have arisen and the second respondent fearing for his life executed power of attorney in favour of the wife. In abuse thereof, the property stood transferred first by the wife to her father and thereafter again to the wife. In effect, the petitioners wrongly deprived the de facto complainant of property. In support of his submission, learned counsel for the second respondent relied on the judgment of the Hon''ble Supreme Court in Lakhwant Singh Vs. Jasbir Singh and Others, .

Though learned Government Advocate initially submitted that a charge sheet stands filed in the matter, the position that such is not the case till date stands admitted.

On Consideration the rival submissions, we are of the view that the complaint has come to be preferred owing to strained relationship between husband and wife and not only the wife''s father and brother are arrayed as accused but her advocate also is arrayed. On the complaint of the petitioner/wife and towards healing the rift counselling had been effected in the All Women Police Station, Sivakasi. Thereafter, the second respondent/husband admitted his wrong doing and undertook to mend his ways. Thereafter, a power of attorney has been executed by the husband in favour of wife and in due exercise there of property stands sold in favour of her father, who in turn, in the interest of his daughter, settled it in her favour. Coming to know such position, the second respondent executed a deed of cancellation of power of attorney after the power of attorney had been acted upon, seeking to create an interest in favour of his brother, who in turn caused notice to the tenants. These actions only can be seen as attempts to muddy the waters and cause trouble to the wife. As rightly submitted there are no allegations either in the deed of cancellation of power of attorney or in the subsequent settlement deed of any wrong doing by the petitioners, as now alleged in the complaint. It is difficult to accept the contention of learned counsel for the second respondent that such respondent was under constant threat and hence did not earlier prefer a complaint. It is seen that the deed of cancellation of power of attorney had been executed on 16.09.2103 and his brother and mother are witnesses to such document. Therefore, atleast by such date the second respondent had the support of his family members. Despite such position, he has chosen to prefer the complaint only on 02.03.2014. In taking the above view we are not forming the same on material which essentially are a matter of trail and hence the decision relied upon by learned counsel for second respondent does not apply.

The preference of complaint is seen to be a malafide action. This Criminal Original Petition shall stand allowed and the proceedings of the first respondent in Crime No. 88 of 2014 shall stand quashed. Consequently, connected M.P.(MD) No. 1 of 2014 stands closed.