IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 Crl.MC.No. 3467 of 2005(C) ------------------------------------- ( AGAINST C.C.1966/2005 PENDING BEFORE THE HON'BLE JFCM COURT-1, ERNAKULAM.) PETITIONERS/ACCUSED : ----------------------------------- 1. SUVARNA KUMARI, AGED 41 YEARS, D/O.SARADAMMA, NOW RESIDING AT MYLAKULATH HOUSE, SOWHARDH NAGAR, VENNALA P.O., KOCHI-26. 2. M.M.KUNJUMON, AGED 55 YEARS, S/O.M.E.MATHEW, MYLAKULATH HOUSE, SOWHARDH NAGAR, VENNALA P.O., KOCHI-26. BY ADV. SRI.SUBAL J.PAUL RESPONDENTS/COMPLAINANT AND STATE : ----------------------------------------------------------------- 1. T.K.VIJAYAN, AGED 47 YEARS, S/O.LATE KRISHNAN NAIR, PAZHAYEDATH HOUSE, AMANAKKARA P.O., RAMAPURAM, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.JAI GEORGE, PUBLIC PROSECUTOR - R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3467 of 2005 ORDER ON Crl.M.APPLN.NO.12735/2005 IN CRL.M.C.NO.3467/2005 DISMISSED. SD/- 04.07.2008 V.K.MOHANAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac V.K. MOHANAN, J. ------------------------------ Crl.M.C.No. 3467 of 2005 ------------------------------ Dated this the 4rd day of July, 2008 O R D E R The C.C. NO. 1966/2005 is a case instituted upon private complaint at the instance of the first respondent herein for the offences punishable under sections 406, 420, 120 B read with section 34 of I.P.C. The first petitioner herein was the former wife of the first respondent herein. After the divorce, the petitioners herein entered into a marital life and they are residing as man and wife. Though a compliant was preferred before the police by the first respondent against the petitioners, after investigation the police referred the compliant as false. Thereafter first respondent herein had preferred a protest complaint, on the basis of which the court took cognizance. 2. The case of the petitioners can be summarised as follows. The first petitioner herein and the first respondent herein were married on 7/09/1985 in accordance with the religious customs prevailed among the Hindu Religion and in their wedlock a girl child borne. But subsequently the marital relationship broken and at the instance of the Crl.M.C.No. 3467 / 2005 Page numbers first petitioner herein, the marriage was dissolved as per the Annexure A1 judgment dated 2/11/202 in O.P. 151/2002 of the family court, Ernakulam. The main allegation is that the first respondent herein ever since their marriage dated 7/09/1985 she had no peace of mind but only ill-treated her and he was a habitual drunkard and harassed her both physically and mentally and also misappropriated the gold ornaments. Annexure A1 is an ex parte order,however the same is still in force and it was not challenged by the first respondent. Thus, on the basis of Annexure A1 order, the marriage between the first petitioner and the first respondent herein was dissolved as per the decree passed there on. It is also the case of the first petitioner that the second petitioner was also a divorcee,as evidenced by Exhibit A3 judgment dated 8/5/2003. Accordingly both the petitioners were united and settled as man and wife. 3. The petitioners were married on 6/10/2003. It is also the case of the petitioners that after marriage first respondent herein had preferred a complaint before the police with the allegation of misappropriation of property, cheating etc and the police after Crl.M.C.No. 3467 / 2005 Page numbers conducting an elaborate enquiry referred the case as false one. Thereafter the first respondent herein had preferred Annexure A4 petition namely OP No. 117/2005 dated 24/1/2005 before the family court against the petitioner with a prayer for decree directing the respondents therein to return the articles mentioned in schedule A there to which alleged to have been entrusted with the first petitioner during the subsistence of the marriage between them. There is also another prayer for a direction, directing the respondents to return a sum of Rs. 93,321/- as cash entrusted with the first petitioner by the respondent. A copy of the above petition is produced as Annexure A4 along with this petition. It is the specific case of the petitioner that after filing the Annexure A4 petition before the family court, Ernakulam, the first respondent herein had preferred Annexure A2 protest complaint before the court below and the court below has taken cognizance upon the protest complaint. Thereafter the petitioner herein had also filed a petition i.e. Annexure A5 dated 21/3/2005 before the family court for the return of the articles mentioned therein. So according to the petitioners, the first respondent herein had approached both the Crl.M.C.No. 3467 / 2005 Page numbers Criminal court as well as family court for return of the articles mentioned therein. According to the petitioner, on the basis of the same subject matter the petitioners are forced to face proceedings in different courts and one of such proceedings is pending before the Judicial First Class Magistrate court, Ernakulam and hence the same is liable to the quashed. 4. I have heard the learned counsel for the petitioner. Though notice was served through special messenger on the first respondent, he has not chosen to appear. The learned counsel for the petitioner submitted that by initiating two proceeding before different courts, the petitioners are being harassed by the first respondent and Annexure 2 compliant is frivolous and vexatious one . On the factual background mentioned earlier, the counsel for the petitioner submitted that the marriage between first petitioner and first respondent has already been dissolved as per legal and valid order passed by the competent court and thereafter the first respondent is chasing her and harassing by implicating in false complaints. It is also stated by the counsel for the petitioner that a close scrutiny of Annexure A2 complaint and Crl.M.C.No. 3467 / 2005 Page numbers Annexure A4 petition before the family court, would show that grievance of the first respondent is with respect to the articles and household items mentioned therein and not for a bona fide prosecution. 5. The learned counsel for the petitioner invited my attention to the Annexure A2 compliant. On a perusal of Annexure A2 complaint, it is clear that the main grievance of first respondent is with respect to the property and cash mentioned therein. In the beginning of the third paragraph of Annexure A2 compliant the above agony of the first respondent is specific. It is stated “being a trustee for the complainant, the first accused is duty bound to return the articles and cash to the complainant”. In the same page towards the last of the paragraph, it is stated that “the complainant is entitled to get back the above goods from the accused.” It is also stated therein that second accused is also arrayed in the case as he is in total control of the first accused and the articles are kept for his use and utilised by him. Therefore the relief moulded thereon in the following words: “ hence both the accused are liable to be directed by this court to return the articles to the complainant.” It is also stated that, it is submitted that Crl.M.C.No. 3467 / 2005 Page numbers the above actions of the accused persons are punishable under Section 120 B , 406, 420 read with section 34 of I.P.C”. In the 3rd page of the compliant, apart from the above statement regarding the claim, what stated is that the accused persons dishonestly misappropriated and converted the above named articles for their own use. Another averment is that the articles mentioned above are entrusted with the first accused, and without the permission of the complainant, the accused persons dishonestly misappropriated and converted the articles for their own use. It is also stated that the items mentioned herein are understandably kept in the residence of the accused. Apart from the above bald statements, there is no specific allegation so as to attract the ingredients of Section 406, 420 120 B and 34 of I.P.C. In this respect it is relevant to note that the first respondent/complainant do admit that the first petitioner was his wife and after their marriage on 7/09/1985, they were residing together as husband and wife for the last several years. Prima facie in such a situation, on the household articles, both husband and wife have got right and it cannot be said that the wife alone has got dominion over such property. Therefore, it cannot be Crl.M.C.No. 3467 / 2005 Page numbers said that there was any entrustment so as to attract section 406 of I.P.C. It is equally important to note that marriage was taken place between the first petitioner and first respondent on 7/09/1985 and they were residing as husband and wife for a quite long time, but due to indifference the marital relationship failed and dissolved the same as per Annexure A1 judgment. Admittedly Annexure A1 judgment dated 2/11/2002 and even according to the petitioners, the present marriage between the petitioners was taken place on 6/10/2003, which shows that while subsisting the matrimonial relationship between 1st petitioner and 1st respondent, no connection between the petitioners. In the above circumstances especially in the absence of any allegations to establish the ingredients of section 420, there is no meaning in prosecuting the petitioners under sections 420. There is also no arguments to attract the provisions of sections 120 B and 34 of the I.P.C. 6. It is worthwhile to note that the first respondent/ complainant in Annexure A2, has already approached the family court by filing Annexure A4 petition for the return of the articles. In Annexure A2 protest complaint as indicated above, the main grievance Crl.M.C.No. 3467 / 2005 Page numbers of the first respondent is with respect to the articles mentioned therein. 7. It is also relevant to note that as per Annexure A1 judgment the first petitioner has already got divorce by invoking legal provisions and the marriage between the first petitioner and first respondent has already been dissolved and she has decided to have another family life along with the second petitioner on the basis of the marriage solemnised on 6/10/2003. It is after the said marriage, the first respondent herein had preferred the Annexure A4 petition and also Annexure A2 protest complaint. So the above facts itself is sufficient to show that Annexure A2 protest complaint is only frivolous and vexatious compliant, that too filed to harass the petitioners. It is also pointed out earlier, in Annexure A2 compliant the essential ingredients of sections 406, 420,120 B and 34 are not attracted as there is no pleadings and allegations and therefore the magistrate ought not have taken cognizance upon the Annexure A2 complaint, especially in particular fact that the police had already referred the case which registered on the basis of the petition filed by the first respondent/ complainant. Thus the continuance of Annexure A2 complaint and Crl.M.C.No. 3467 / 2005 Page numbers C.C.No. 1966/2005, will amount to abuse of process of the court. 8. In the result Annexure 2 compliant and C.C. No.1966/2005 instituted there on and all proceedings there to are quashed and accordingly this Crl. M.C. is allowed and there is no order as to cost. V.K. MOHANAN, JUDGE scm