Rakesh Kumar alias Naresh Kumar vs Prem Lal

V.S. Aggarwal, J.

Rakesh Kumar and others seek quashing of the complaint dated 31.7.1991 titled Prem lal v. Rakesh Kumar and others pending in the Court of Sub Divisional Judicial Magistrate, Tarn Taran and the summoning order dated 30.8.1991.

The relevant facts are that Prem Lal is the complainant. His daughter Smt. Pinki was married to petitioner No. 1 Rakesh Kumar in October, 1987. The petitioners are alleged to have been misbehaving with Smt. Pinki. On 11.2.1991 Smt. Pinki died. The cause of death was extensive burns. In the complaint field with respect to the offences punishable under Sections 406/420, Indian Penal Code, it has been asserted that at the time of marriage, on the demand of the petitioners, the complainant (respondent No. 2) had given many items of dowry. The items were to be handed over to Smt. Pinki but were not given. The petitioners were stated to have misappropriated those articles and further they had cheated the respondent No. 2, as a result of which complaint with respect to offences punishable under Section 406/420 IPC was filed.

The learned Sub Divisional Judicial Magistrate, Tarn Taran recorded the preliminary evidence and summoned the petitioners with respect to offences punishable under Sections 406/420.

The petitioners contend that the deceased had made dying declaration exonerating all the petitioners. Even Prem Lal complainantrespondent had also made a statement to the Police to the same effect. It was denied that any dowry article had been given and in any case it had been asserted that Smt. Pinki died leaving behind a child who is with the petitioners.

Notice of the petition had been issued but respondent Prem Lal did not appear. In these circumstances, the notice had been directed to be issued to the State.

Perusal of the petition revealed that earlier a similar petition had been filed which was dismissed on 8.1.1996. Obviously the second petition would not be maintainable. But the petitioners'' learned counsel had drawn the attention of this Court towards the order passed on 8.3.1996 by Hon''ble Mr. Justice M.L. Koul in Criminal Miscellaneous No. 824M of 1992. After the earlier petition was dismissed the petitioners were seeking restoration of the said petition which was dismissed in default. The learned Single Judge held that the said petition could not be restored but opportunity was given to the petitioners to move this Court by filling a fresh petition. Once, the learned Single Judge had permitted the filing of the said petition, it must follow that the second petition cannot be termed to be not maintainable.

Learned counsel for the petitioners had drawn the attention of the Court towards the dying declaration of Smt. Pinki and also the statement made by Prem Lal to the Police to urge that there is no case that is drawn against the petitioners. The dying declaration of Smt. Pinki reads :

"I was married to Rakesh Kumar resident of Talwara about 34 years ago. I have been suffering from epilepsy for the last about 11/2 or two years and treatment for that ailment was being provided to me by my parents and my inlaws and I have been taking the medicines daily. Today at 12.00 noon, I was cooking food/vegetable on a stove in the kitchen but while the stove was burning the kerosene in it finished. I started putting kerosene oil in the stove but the oil caught fire and there was an explosion as a result of which the clothes which I was wearing caught fire. I cried and on hearing the same my husband who was sleeping in the other room on hearing my noise immediately rushed and he tried to extinguish the fire of my clothes and as a result the right hand of my husband had substantially burnt and got injured. My husband put quilt upon me to extinguish the fire and he got me admitted in Bhakra Beas Management Board Hospital. Nobody is at fault. I have heard the statement, which is correct. I do not want any action against anybody."

Similarly, the statement made by Prem Lal at that time reads as under :

"I am working as a Sweeper in the Court of Shri S.S. Sandhu, Sub Judge, Tarn Taran. My daughter Pinki was married about 34 years ago to Rakesh Kumar resident of Talwara. She gave birth to two sons. However, the younger son died about 6/7 months ago. My daughter was suffering from epileptic fits since for the last 11/2 years or two years and the inlaws of my daughter were getting treatment for this ailment from Amritsar. On receiving message that my daughter received burn injuries from stove, I reached Talwara on 10.2.1991. My daughter was admitted in the Bhakra Beas Management Board Hospital. I with my wife Smt. Sita Rani reached the hospital but we could not talk to her as she was unconscious. I on my own made inquiries from the doctors and also from the neighbourers of Pinki regarding the burn injuries received by my daughter and it was confirmed that the statement made by my daughter was correct. Unfortunately this incident had taken place and for the same none is at fault. We do not want any action against anyone. I have heard the statement which is correct."

It is obvious from the aforesaid that at the initial stage, there was no assertion about Smt. Pinki having died as a result of harassment or any act or conduct to be attributed to the petitioners.

With respect of offences punishable under Sections 406/420 IPC, the sole contention asserted in the complaint is that certain dowry articles were entrusted which have been misappropriated and the petitioners had cheated the respondent by inducing him to deliver the articles of dowry. For purposes of the present petition to go into the question, if ingredients of Section 406 IPC could be attracted or not. This is because of subSection (3) of Section 6 of the Dowry Prohibition Act, 1961. It reads as under :

"6(3). Where the woman entitled to any property under sub section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being;

Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall;

(a) if she has no children, be transferred to her parents; or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children."

It is obvious from aforesaid that even if it be assumed that there was some property to which the deceased was entitled, then her parents would not be entitled to claim the same. She had left behind a child who is with the petitioners. The right if any is that of the infant child and not of the respondent. Consequently, it would be an abuse of the process of the Court to permit the complaint under Section 406 IPC.

As regards the offence punishable under Section 420 IPC, reference can be made to ''cheating'' defined under Section 415 of the Indian Penal Code. It is to the following effect :

"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".

Explanation. A dishonest concealment of facts is a deception within the meaning of this section."

The necessary ingredients relevant for purposes of the present petition are that petitioners should have fraudulently or dishonestly induced the respondent to deliver any property which he would not do if he had not been deceived. The respondent contended that by cheating, he was asked to part with certain property as dowry. This is obviously a gift given to this deceased daughter. It has already been noticed above that the deceased had made a statement exonerating all the petitioners of the offence. But irrespective of that, there is no cheating because the dowry articles were handed over at the time of marriage. If unfortunately Smt. Pinki had died as a result of the extensive burns, it cannot be termed that the petitioners had cheated the respondent. As a result of which the respondent parted with certain articles. Therefore, the petition must succeed.

As a result of the reasons given above, the petition succeeds and the complaint and the order summoning the petitioners as accused are quashed.