Crl.Misc.No.30393 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No. M-30393 of 2008 Date of decision: 19.11.2009 Vikas Gupta ... Petitioner versus State of Punjab and another ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Sunil Chadha, Advocate, for the petitioner. Mr.P.S.Sidhu, Addl.AG, Punjab. Mr.Liaquat Ali, Advocate, for respondent No.2. ... JORA SINGH, J. Vikas Gupta filed this petition under Section 482 Cr.P.C. for quashing of FIR No. 413 dated 8.9.2003 (Annexure P-6) under Sections 467/468/120-B IPC, registered at Police Station Civil Lines, Ludhiana, order dated 9.12.2005 (Annexure P-7), order dated 23.12.2005 (Annexure P-8) and judgment dated 29.9.2008 (Annexure P-9). FIR No.496 dated 23.12.1999 under Sections 406/498-A IPC and Sections 4 and 5 of the Dowry Prohibition Act was registered in view of the statement of Anu Gupta @ Sharda Bansal, on the allegation that she was married with Vikas Gupta. Tersam Lal is her father-in-law, whereas Miss. Monika Gupta and Vivek Gupta are sister and brother of Vikas Gupta. At the time of marriage, Rs.22.00 lac was spent. Marriage was solemnized on 10.2.1999. Sufficient dowry was given by her parents as per their status. After marriage, she started residing with her husband, but her in-laws were not satisfied with the dowry articles. Her in-laws started maltreating and Crl.Misc.No.30393 of 2008 2 misbehaving her for want of dowry and she was forced to bring Rs.7.00 lac more from her parents to install paper mill. Complainant was also forced to transfer the property in the name of Vikas Gupta for getting loan from the bank. All these facts were brought to the notice of her parents, but parents of the complainant showed their inability to accept illegal demands of Vikas Gupta and his parents. After refusal to oblige the in-laws of the complainant, in-laws of the complainant started misbehaving and maltreating her for want of dowry. On 9.4.1999, complainant was given beatings by her in-laws and forced to bring Rs.7.00 lac from her parents and in case payment not brought then threatened to eliminate her. Complainant demanded her istridhan from her in-laws, but they refused to return the istridhan. Istridhan is being misappropriated by the in-laws of the complainant. Notice of motion was issued. Reply was filed by the respondents by denying all the allegations of the petitioner. Learned counsel for the petitioner argued that FIR No. 496 dated 23.12.1999 was registered under Sections 406/498-A IPC. After investigation, challan was presented in the Court. Petitioner is facing trial, but during the pendency of trial, second FIR No.6 dated 8.1.2001 was got registered by Anu Gupta. However, in FIR No.6 dated 8.1.2001 (Anexure P-2), the accused were acquitted of the charges levelled against them vide judgment dated 18.7.2008 (Annexure P-5) Third FIR No.127 dated 25.3.2002 under Sections 406/420/120-B IPC was got registered on the allegation that in FIR No.496 Crl.Misc.No.30393 of 2008 3 dated 23.12.1999, gold ornaments returned by the accused were found to be fake. Annexure P-3 is the copy of FIR No.127 dated 25.3.2002. Petition for quashing of FIR No.127 dated 25.3.2002 was instituted by the present petitioner and others and the same was accepted vide order dated 22.11.2006 (Annexure P-4). Order shows that dowry articles including gold ornaments were taken into police possession on 10.1.2000 and on 28.2.2002, complaint was made by Anu Gupta to the effect that the jewellery recovered from the petitioner was duplicate and not the original one, but ultimately, FIR No.127 dated 25.3.2002 was quashed. Another FIR No.413 dated 8.9.2003 (Annexure P-6) was got registered by Anu Gupta on the allegation that at the time of marriage, shagun worth Rs.2.55 lac was given to the complainant by the friends/relatives/well wishers/invitees. Tarsem Lal Gupta had directed the complainant to hand over the cash for depositing in the bank in the account of the complainant. Instead of depositing the payment in the account of complainant (Anu Gupta), by obtaining her signatures, joint account was got opened in the Punjab National Bank, Civil Lines, Ludhiana. Rs.5,000/- was deposited on 9.3.1999 at the time of opening the account. Intimation was given to the complainant that account was opened in her name. Draft was deposited in the newly opened account on 11.3.1999. But in view of the copy of statement of account, the complainant came to know that account was opened in the joint name of complainant and Vikas Gupta. Rs.2.50 lac was withdrawn on 16.3.1999 without the knowledge of the complainant. The accused have entered into a criminal conspiracy for cheating the complainant and depriving her of her istridhan by withdrawing the amount. Crl.Misc.No.30393 of 2008 4 Learned counsel for the petitioner argued that in FIR No.413 dated 8.9.2003, vide order dated 9.12.2005 (Annexure P-7), accused were charge sheeted. Annexure P-8 is the copy of the charge sheet. Against the order dated 9.12.2005 (Annexure P-7), revision was instituted by Vikas Gupta, but the same was dismissed vide order dated 29.9.2009 (Annexure P-9). Learned counsel for the petitioner argued that initially FIR No.496 dated 23.12.1999 was registered. After investigation, challan was presented. Petitioner is facing trial, but during the pendency of FIR No.496 dated 23.12.1999, FIR Nos.6 dated 8.1.2001, 127 dated 25.3.2002 and 413 dated 8.9.2003 were got registered. In FIR No.6 dated 8.1.2001, allegation was that the accused had caused injuries to the complainant, but in the said FIR, the accused were acquitted of the charges levelled against them vide order dated 18.7.2008 (Annexure P-5). In FIR No.127 dated 25.3.2002, allegation of the complainant was that gold ornaments recovered from the accused are not original one and the jewellery is fake, but FIR No.127 dated 25.3.2002 was quashed vide order dated 22.11.2006 (Annexure P-4). FIR No.413 dated 8.9.2003 was got registered on the allegation that shagun worth Rs.2.55 lac was to be deposited in the account of the complainant, but instead of depositing the payment in the account of complainant, joint account was got opened. Payment was deposited in the joint account, to be operated either or survival. Later on, payment deposited was withdrawn. In case cash was withdrawn by the petitioner, the matter is of civil nature. Suit for recovery should have been instituted. Account was Crl.Misc.No.30393 of 2008 5 opened on 9.3.1999 and the amount was withdrawn on 11.3.1999, whereas the FIR was got registered on 8.9.2003. After registration of FIR No.496 dated 23.12.1999, the complainant is getting FIRs registered one after the other simply to harass the petitioner and his family members. In FIR No.496 dated 23.12.1999, the Court is to see whether the complainant was being harassed or maltreated for want of dowry articles and whether the petitioner and his parents are misappropriating the istridhan or they had demanded dowry at any stage. Registration of FIRs one after the other shows that the sole purpose of the complainant party is to harass the accused party. Taking the allegations to be correct one, without evidence no question of conviction. Perusal of the FIR shows that prima facie, no offence was made out punishable under any Section of the IPC against the petitioner. Learned State counsel and counsel for respondent No.2- complainant argued that Anu Gupta was married with Vikas Gupta. At the time of marriage, sufficient dowry was given but in-laws of Anu Gupta were not satisfied with the dowry articles. FIR No.496 dated 23.12.1999 was registered. During investigation, jewellery was recovered, but later on, the jewellery was found to be fake. In view of FIR No.413 dated 8.9.2003, Rs.2.55 lac was to be deposited in the account of the complainant, but instead of getting the account opened in the name of Anu Gupta, joint account was got opened in the name of Anu Gupta and Vikas Gupta. Payment was deposited in the joint account, but later on, payment was withdrawn by the petitioner. Signatures of Anu Gupta on the loan papers after comparison were found to be forged and fabricated. Crl.Misc.No.30393 of 2008 6 Evidence is required to know whether account was to be opened in the name of Anu Gupta only or joint account was to be opened in the name of Vikas Gupta and Anu Gupta, and in case joint account was got opened, then whether petitioner had authority to withdraw the payment or not. Admittedly, Anu Gupta complainant was married with Vikas Gupta on 10.2.1999. After marriage, Anu Gupta @ Sharda Bansal started residing with the petitioner. Allegation of the complainant is that sufficient dowry was given by her parents. A sum of Rs.22.00 lac was spent to perform her marriage. In-laws of the complainant were not satisfied with the dowry articles. For want of dowry, in-laws used to misbehave and maltreat Anu Gupta. Anu Gupta was also forced to bring Rs.7.00 lac from her parents to start business. Secondly, Anu Gupta was also forced to transfer the property in the name of the petitioner. In FIR No.496 dated 23.12.1999, there is not a word that Rs.2.55 lac was collected as shagun by Anu Gupta from the relatives/well wishers/invitees/friends. After investigation, challan was presented. Case is pending. Petitioner is facing trial. After evidence, Court is yet to opine as to whether Anu Gupta was being harassed and maltreated for want of dowry. Whether dowry articles are in possession of the in-laws and the articles are being misappropriated. Whether the petitioner had demanded dowry at the time of marriage or not. Whether the complainant had requested her in-laws to return the istridhan and if requested, whether in- laws of Anu Gupta had refused to return the istridhan. All these points are yet to be decided by the Court. Crl.Misc.No.30393 of 2008 7 During the pendency of FIR No.496 dated 23.12.1999, FIR No.6 dated 8.1.2001 (Annexure P-2) was got registered under Sections 452/323/34 IPC on the allegation that the complainant was given beatings by the opposite party. After investigation, challan was presented in FIR No.6 dated 8.1.2001, but ultimately, accused, namely, Tarsem Lal, Vikas Gupta and Raman Singla, were acquitted of the charge levelled against them vide judgment dated 18.7.2008 (Annexure P-5). Against the order dated 18.7.2008, no appeal by the State or revision by the complainant party. In FIR No.496 dated 23.12.1999 (Annexure P-1), jewellery was taken into police possession on 10.1.2000, but on 28.2.2002, there was a complaint by Anu Gupta to the effect that the jewellery is not genuine one and the jewellery is artificial. Petitioner approached Hon’ble High Court by filing petition under Section 482 Cr.P.C. for quashing of FIR No.127 dated 25.3.2002 (Annexure P-3). Petition was accepted vide judgment dated 22.11.2006 (Annexure P-4). Annexure P-4 shows that jewellery was taken into police possession on 10.1.2000. Complaint by Anu Gupta is dated 28.2.2002. After recovery of jewellery, no application qua release of jewellery on superdari. In case jewellery was recovered from the possession of the petitioner on 10.1.2000, then no explanation why Anu Gupta failed to approach the Court for release of jewellery on superdari. Jewellery was lying in the Police Station. Judgment dated 22.11.2006 (Annexure P-4) further shows that jewellery was not kept in any sealed container. So, after two years, how jewellery was not found to be genuine one. If the jewellery is not genuine one, then separate FIR cannot be registered. In FIR No.496 Crl.Misc.No.30393 of 2008 8 dated 23.12.1999, matter should have been investigated as to whether jewellery recovered is genuine one or not. After quashing of FIR No.127 dated 25.3.2002 vide judgment (Annexure P-4), SLP was filed, but the same was dismissed. Instead of pursuing FIR No.496 dated 23.12.1999, another FIR No.413 dated 8.9.2003 (Annexure P-6) was got registered under Sections 467/468/120-B IPC. Complainant is the same. Allegation is that at the time of marriage, Rs.2.55 lac was collected in the shape of shagun from various friends, relatives, invitees and well wishers. Petitioner was requested to get an account opened in the name of the complainant and deposit the payment in the said account, but instead of getting account opened in the name of the complainant, joint account was got opened on 9.3.1999 in the name of Anu Gupta and petitioner Vikas Gupta and in that joint account, Rs.2.55 lac was deposited on 11.3.1999. But later on, payment was withdrawn by the petitioner. After going through the copy of statement of account issued by Punjab National Bank, the complainant came to know that joint account was got opened and the amount was withdrawn on 16.3.1999. First of all, in FIR No.496, the prosecution has submitted supplementary report under Section 173(8) Cr.P.C.. There was no need to record separate FIR, i.e., FIR No.413 dated 8.9.2003 (Annexure P-6). FIR No.413 dated 8.9.2003 (Annexure P-6) was registered on the allegation that instead of depositing the payment in the account of complainant, joint account was got opened and amount was deposited in the joint account and later on, the amount was withdrawn. As per first FIR, number of articles were given at the time of marriage. Another FIR was got registered to the Crl.Misc.No.30393 of 2008 9 effect that gold ornaments recovered, which were given at the time of marriage, were not original one. In FIR No.413 (Annexure P-6),vide order dated 9.12.2005, the Court opined that prima facie, case is made out to frame charge under Section 406 IPC. Learned ACJM, Ludhiana, observed as under:- “Ld. Defence counsel representing Vikas Gupta argued that no case of breach of trust made out as he has opened a joint account with his wife who is complainant Anu Gupta. Withdrawal from the joint account no offence under Section 406 IPC is made out. However, I have gone through the complaint. As per the complainant she handed over the FD amount to the accused to deposit in her account and further not to open any joint account but only in her name. But instead of the same opened the account and misappropriated the amount. So as such for the purpose of charge since there are suspicious circumstances raising finger towards the accused of misappropriation, so prima facie case under Section 406 IPC is made out against the accused. Let the charge sheet be framed against the accused under Section 406 IPC on 23.12.2005.” Annexure P-8 is the copy of the charge sheet. Against the order dated 9.12.2005 (Annexure P-7), revision was instituted by the petitioner, but the same was dismissed by learned Additional Sessions Judge, Ropar, vide judgment dated 29.9.2008, by observing as under:- Crl.Misc.No.30393 of 2008 10 “8. There are definite allegations against the revisionist regarding the entrustment and subsequent misappropriation of the money. Hence, I hold that the learned trial Magistrate has rightly framed the charge in question. 9. The learned counsel for the revisionist submits that from the complaint itself it is obvious that on an earlier occasion, an FIR regarding misappropriation of dowry of the complainant was lodged against the revisionist. He points out that in the present complaint also, the amount in question has also been referred to as dowry of the complainant. As per him, the present case therefore amounts to putting the revisionist to double jeopardy. However, I do not agree with the learned counsel for the revisionist. The revisionist does not claim that the amount in question was also a part of the earlier FIR. Furthermore, the earlier FIR was registered in 1999, whereas the complainant asserts that she detected the present misappropriation in 2002 only. From the above said facts, it is obvious that the present amount was not a part of the complaint, which resulted into the registration of the earlier FIR in 1999. The contention is thus not tenable.” Annexures P-6, P-7, P-8 and P-9 show that joint account was opened on 9.3.1999. Amount was deposited on 11.3.1999 and was withdrawn on 16.3.1999, whereas FIR No.413 is dated 8.9.2003. Suppose, Rs.2.55 lac was collected as shagun and the amount was to be deposited in the bank in the account of Anu Gupta and instead of depositing the amount in the account of Anu Gupta, joint account was Crl.Misc.No.30393 of 2008 11 opened in the name of the petitioner and Anu Gupta and later on, payment was withdrawn by the petitioner, then in the first FIR, i.e., FIR No.496, the Court is to see whether Rs.2.55 lac was collected as shagun and there is misappropriation of dowry articles/shagun. In FIR No.496 (Annexure P-1), there is not a word that Rs.2.55 lac was collected as shagun. File shows that in FIR No.496 (Annexure P-1), number of other articles were recovered. Tomorrow the complainant is to file complaint that other articles are also not genuine one. Duplicate articles were produced before the police. If allegation of the complainant is taken to be correct one, then qua each article, there should be a separate FIR. First FIR registered against the petitioner is pending. Under Section 173(8) Cr.P.C., police is at liberty to collect evidence as to whether account was to be opened in the name of Anu Gupta only or account was wrongly opened in the name of petitioner and Anu Gupta. Payment was withdrawn fraudulently. No allegation of the complainant that her signatures were forged and fabricated while getting the account opened. Allegation of the complainant is that her signatures were obtained for getting the account opened in her favour, but instead of getting the account opened in her favour, account was opened jointly in the name of the petitioner and complainant, to be operated either or survival. When there is joint account and the amount is withdrawn by one of the parties, then remedy with the second party is to file suit for recovery. No question of offence punishable under Sections 467/468/120-B IPC. Taking the allegation to be correct one as per FIR No.413 dated 8.9.2003 (Annexure P-6), I am of the opinion that no offence punishable under any Section of the IPC is made out. File rather shows that Crl.Misc.No.30393 of 2008 12 one after the other FIRs are being registered simply to harass the petitioner. Earlier in FIR No.6 dated 8.1.2001 (Annexure P-2), petitioner was acquitted of the charge levelled against him. FIR No.127 dated 25.3.2002 (Annexure P-3) was quashed by Hon’ble High Court vide judgment (Annexure P-4). FIR No.413 dated 8.9.2003 (Annexure P-6) was got registered simply on the allegation that instead of getting the account opened in the name of the complainant, joint account was got opened in the name of the petitioner and complainant, and later on, payment was withdrawn. In the light of above discussion, FIR No. 413 dated 8.9.2003 (Annexure P-6) under Sections 467/468/120-B IPC, registered at Police Station Civil Lines, Ludhiana, with all subsequent proceedings arising therefrom, order dated 9.12.2005 (Annexure P-7), order dated 23.12.2005 (Annexure P-8) and judgment dated 29.9.2008 (Annexure P-9), are ordered to be quashed. Petition is accepted. 19.11.2009 ( JORA SINGH ) pk JUDGE