Nirmaljit Kaur vs Sh.Atma Singh

S.D. Bajaj, J.

Complaint Annexure P 1. was filed by Atma Ram against his daughterinlaw, her parents, brother and one Harinderpal Singh alias Bawaunder section 420 read with section 120B/109 of the Indian Penal Code for Rajpal Singh accused No. 2 having cheated him of a sum of Rs. 48,500/ in conspiracy with remaining four accused on the pretext of buying 12 bighas of land for him at Dehradun adjacent to his own land at that place that there was, in fact, no intention to purchase the land white obtaining money nor was the land aforesaid ever purchased with the amount aforesaid and that Rajpal Singh, in fact, converted the amount to his own use. After recording preliminary evidence learned trial Court dismissed the Complaint vide order Annexure P 6 dated November 21, 1988. In Criminal Revision No. 2 filed on 4th January, 1989 learned Sessions Judge, Chandigarh, vide his impugned judgment Annexure P. 7 dated 13th January, 1989 accepted the revision, set aside the order of the learned trial court dated 21st November, 1988 and remanded back the case to the learned trial court for proceeding further therewith in accordance with law. Upon rehearing after recording additional evidence, learned trial court ordered summoning of accused No. 1 and 2 before it under sections 420, 120B and 109 of the Indian Penal Code vide its order Annexure P. 8 dated 12th April, 1989.

Feeling aggrieved therefrom both the summoned accused daughterinlaw and her father have filed Cri. Misc No. 5943M of 1989 in this Court for quashing complaint Annexure P. 1 and the summoning order Annexure P. 3 on the grounds that the complaint is false and frivolous and has been filed as a counter blast to the matrimonial litigation instituted by the daughterinlaw, that the order Annexure P. I dated 13th January, 1989 is wholly illegal and that while summoning the petitioners learned trial court has in fact reviewed its own earlier order Annexure P.6 dated 21.11.1988; which is legally not permissible.

I have heard Shri R.S. Ghai, Sr. Advocate, with Mr. Bipan Ghai, Advocate, for the petitioners, Shri A.S. Chahal, Advocate, with Shri M. S. Minhas, Advocate for the respondent and have carefully gonu through the relevant material adverted to by them.

With reference to the observations made in Gantoli v. Kalwa Ram, 1986(2) Recent Criminal Reports 398 ; Om Parkash Mehra v. Karam Singh, 1987(1) Recent Criminal Reports 586 and Devendra Dutt and others v. State and others, 1990(1) Recent Criminal Reports 50 ; it between asserted that the complaint Annexure P. 1 having been filed by father or the bridegroom as a counter blast to matrimonial proceedings initiated by the daughterinlaw, is obviously an abuse of the process of the court and therefore, calls for being quashed. None of the authorities cited has any bearing on the point in controversy before this Court. Truth or falsity of the allegations made in the complaint would be decided by the learned trial court on the basis of evidence adduced before it.

Legal position adverted to by the learned Sessions Judge in his order Annexure P. 7 dated 13th January, 1989 for setting aside the order Annexure P. 6 of the learned trial court dated 21st November, 1988 has been approved by Hon''ble the Supreme Court in Chanan Mal Banal v. State of Har. and ors, Cri. Appeal No. 188 of 1990 decided on 19.3.1990. Relevant observations read. "After hearing learned counsel for the parties it appears that the learned Judicial Magistrate 1st Class, tried to appreciate the evidence of the witnesses produced before him and hold that the testimony of the interested witnesses cannot be believed to prove a prima facie case for summoning the accused. Thus finding of learned Magistrate is totally fallacious. In view of the provisions of Section 200 of the Code of Criminal Procedure, the Magistrate has only to see at this stage, whether on the evidence adduced, a prima facie case has been made out. It is not his business to appreciate the evidence and to give any finding as he has done in the present case. Therefore, we set aside the order of learned Judicial Magistrate dated 30th May 1989 as well as the order of the High Court and remit the case back to the Judicial Magistrate to issue summons against the accused persons."

In this view of the matter Criminal Misc filed by the two summoned accused gets wholly berefe of any merit therein and is consequently dismissed both the petitioners may, it they are so advised, avail themselves of all the pleas raised in the quashing petition before the learned trial court while defending themselves in the complaint pending before it for adjudication.