IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26 .10 .2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.2358 of 2007 & M.P.No.1 of 2007 1.Vadivel 2.Malliga 3.Senthil 4.Mala 5.Kalpana .. Petitioners Vs Dr. V.D.Karthikeyan .. Respondent PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to call for the records of C.C.No.204 of 2006 on the file of the Learned Judicial Magistrate No.IV, Vellore and quash the complaint. For Petitioners: Mr.Muthumani Doraisamy Senior Counsel For Respondent : Mr.E.Kannadasan ORDER The petitioners 1 to 5 have been arraigned as A1 to A5 in the Criminal case instituted on a private complaint by the respondent on the file of the learned Judicial Magistrate No.IV, Vellore in C.C.No.204 of 2006. Fifth Petitioner Kalpana (A5) is the wife of the respondent Dr.V.D.Karthikeyan /the complainant. The petitioners 1 and 2 are the parents and the petitioners 3 and 4 are respectively brother and sister of the fifth petitioner / fifth accused. They have approached this Court by way of the present Crl.O.P.No.2358 of 2007 for quashing the criminal proceedings initiated on the file of the learned Judicial Magistrate No.IV, Vellore in C.C.No.204 of 2006 on the private complaint of the respondent herein presented under Section 200 Cr.P.C alleging commission of offences by the petitioners 1 to 5 punishable under Sections 406, 506(ii) and 420 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. In the said complaint, the respondent has made the following allegations:- i)The respondent (complainant) is a doctor by profession, specialised in Ophthalmology. He never had an intention to go anywhere out of India seeking employment or settling down in a foreign country. Only in 2004, he decided to marry and browsed the internet to find prospective brides. While doing so, he came across the resume of the fifth petitioner and contacted her parents, brother and sister viz., the petitioners 1 to 4 herein. The negotiations for the marriage was held in absentia of the fifth petitioner, who was then employed in USA and the respondent had the opportunity of seeing her only in the photograph. After the marriage proposal was finalised and the date was fixed, the fifth petitioner came down to India and their marriage was solemnized on 31.01.2005 at Tirupathi according to Hindu rites and customs. The marriage was subsequently registered in the office of the Sub- Registrar, Periamet, Chennai on 18.02.2005. ii)The fifth petitioner and the respondent had their marital life together at Vellore till 27.02.2005, when she went back to USA assuring the respondent that she would wind up her work and return to India to lead a happy marital life with the respondent. Before the marriage, the respondent made it clear that he did not have any idea of going to USA and he wanted his wife to wind up her job in USA and return back to Tamil Nadu to lead the life with the respondent and the said condition was accepted by the petitioners. But soon after the marriage date was finalized, the petitioners 1 to 4 demanded a sum of Rs.10,00,000/- as the fifth petitioner needed the money for her return. Subsequent to her departure to USA, she was in touch with the respondent over phone and informed him that her employer in USA was reluctant to accept her resignation and hence, she needed another sum of Rs.5,00,000/- to process her quick return and asked the respondent to pay the said amount to her parents. Accordingly, in the month of June 2005, the respondent paid the above said amount to the petitioners 1 to 4, who received it on the pretext that they would sent it to the fifth petitioner. Again the petitioners 1 to 4 wanted the respondent to pay a sum of Rs.2,00,000/- for their urgent necessities, as they were unable to meet their expenses at Chennai due to clogging of funds. Believing the said version, in September 2005, the respondent paid the said sum also to the petitioners 1 to 4. In all, the respondent has parted with a sum of Rs.17,00,000/- to the petitioners. Only thereafter, the respondent was able to see the real colour of the petitioners. The petitioners made a false representation, as if the fifth petitioner needed the money for winding up her job in USA to come https://hcservices.ecourts.gov.in/hcservices/ down to India and made the respondent to part with a huge amount of Rs.17,00,000/- without having any intention to do so. iii)In fact, within 5 months from the date of marriage, the fifth petitioner gave birth to a male child in USA in the month of June 2005. Even the birth of the child was not informed to the respondent and only in the month of December 2005, the respondent came to know that the fifth petitioner delivered a male child in June 2005. The respondent and the fifth petitioner had been together only for a short spell i.e., a week in the month of February 2005. The fifth petitioner seems to have had premarital sexual intercourse with some Tom, dick and harry in USA and got impregnated before November 2004. Suppressing the same, her marriage with the respondent was performed and the same would amount to cheating. A total sum of Rs.17,22,000/- had been entrusted to the petitioners on the assurance that they would remit back the same to the respondent by the disposal of the house belonging to the petitioners 1 to 4. Adding fuel to the agony, the fifth petitioner came to India on 04.03.2006 and went back to USA on 14.03.2006. During her short spell of stay in India, the attitude of the fifth petitioner and the members of her parental family towards the respondent caused untold mental agony, shame and humiliation to the respondent. Then only the respondent was able to realize that all the petitioners jointly conspired together by suppressing the fact that the fifth petitioner had conceived through another person and that the petitioners extracting money under false pretext to the tune of Rs.17,00,000/- on making false promises, which act would amount to offences punishable under Sections 406 and 520 IPC r/w.120-B IPC. When the petitioners 1 to 4 were questioned about the above said acts, they not only gave evasive answers, but the first petitioner caused a threat to do away with the respondent. 3. On presentation of the said complaint, ostensibly following the private complaint procedure, the statement of the respondent herein (complainant) was recorded by the learned Judicial Magistrate No.IV on 20.06.2006 and the case was taken on file as C.C.No.204 of 2006 directing issue of summons to the petitioners herein. But the summons to the petitioners herein (accused) were issued stating that they were to appear before the learned Judicial Magistrate No.IV, Vellore to answer to the charge of an offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.204 of 2006. 4. The said order of the learned Judicial Magistrate No.IV, Vellore, taking cognizance of the complaint of the respondent, registering it as C.C.No.204 of 2006 and issuing summons, is https://hcservices.ecourts.gov.in/hcservices/ sought to be quashed by invoking inherent powers of this Court under Section 482 Cr.P.C on the grounds that there was total non-application of mind on the part of the learned Judicial Magistrate No.IV in taking cognizance of the complaint and also in issuing summons assuming it to be a complaint for an offence punishable under Section 138 of the Negotiable Instruments Act and that the complaint itself is a glaring example of abuse of process of Court containing false and untenable allegations accompanied by mutilated and fabricated documents besides showing inherent contradictions and infirmities. 5.Besides refuting the allegations made in the complaint, the fifth petitioner herein, in the affidavit, has also made the following averments:- (i)It is an utter false to state that the fifth petitioner was impregnated through someone in USA and that the respondent is not the father of the male child born to her in June 2005. On the other hand, during the month of March 2004 an advertisement had been given in the tamil matrimoni.com on behalf of the fifth petitioner. The respondent, who come across the advertisement, responded to the same and sent messages on 14.05.2004 through e- mail, when the fifth petitioner was in USA. There were discussions between the first petitioner (father of the fifth petitioner) and the father of the respondent for having the marriage celebrated at the end of June 2004. However, the fifth petitioner could come to Chennai only on 29.09.2004 from USA and the respondent received her at the airport. On 30.09.2004 respondent took the fifth petitioner to Vellore, where the parents of the respondent were living and thereafter on 02.10.2004, he took her to Pondicherry where the respondent was employed at that point of time. Again on 05.10.2004, the respondent took the fifth petitioner to Pondicherry for her tooth extraction. It was the respondent who made payment to the hospital. During the visits of the fifth petitioner along with the respondent to Pondicherry, they stayed in the quarters of the respondent and since the marriage between them was confirmed not only by them but also by their parents and the respondent persuaded the fifth petitioner to have sex with him, unable to resist his persistent demand, the fifth petitioner had sexual intercourse with the respondent several times during October 2004. Thereafter, on 06.10.2004, the fifth petitioner left for USA. (ii)Again on 26.12.2004, the fifth petitioner returned from USA and on the very next day viz., on 27.12.2004, the respondent took her to Pondicherry for consultation with Obstetrician and Gynaecologist. Her pregnancy was confirmed after various tests in the Pondicherry Institute of Medical Sciences, where the respondent was employed at https://hcservices.ecourts.gov.in/hcservices/ that point of time. The respondent was very much aware that the fifth petitioner was pregnant even before the solemnization of marriage and it was the respondent who caused that pregnancy. Knowing the said facts fully well, he married the fifth petitioner and the marriage was solemnized in Arulmighu Govindaraja Perumal Koil, Udayapatti, Salem on 01.01.2005. From 01.01.2005 to 28.01.2005, both of them stayed at Pondicherry. The marriage was once again solemnized at Tirupati on 31.01.2005 as per the desire of the parents of the respondent. On 30.01.2005 itself, the respondent resigned his job at Pondicherry and on 05.02.2005, the couple vacated the hospital quarters, came down to Chennai and thereafter were staying in the house of the parents of the fifth petitioner at Chennai till 25.02.2005, the date on which the fifth petitioner left for USA. (iv)The respondent obtained passport on 04.02.2005 and made attempts to obtain USA Visa on several occasions. He even pestered the fifth petitioner to obtain invitation for him from organizers of National Conference in USA. Meanwhile on 29.09.2005, he went to Bangladesh and secured a job in Bangladesh. During his stay in Bangladesh, he remitted a total sum of US $ 15,886.31 on three spells, the particulars of which are as follows:- 27.6.2005 - US $ 4,441.00 29.8.2005 - US $ 1,465.31 30.9.2005 - US $ 9,980.00 ------------------- Total - US $ 15,886.31 ------------------- All the said remittances were made from Bangladesh to the Bank account of the fifth petitioner in the hope of getting a Visa for USA so that the respondent and the fifth petitioner could settle in USA. At no point of time, the respondent insisted upon that the fifth petitioner should quit her job and return to India. The laboratory results dated 28.12.2004 and the medical certificate were forwarded by the respondent to the fifth petitioner to USA on 12.03.2005. The said documents would confirm beyond doubt that the fifth petitioner was pregnant during December 2004. Various materials sent by the respondent will reveal that he was aware of not only the fifth petitioner's pregnancy, but also the delivery of a male baby and that he had shown affection towards that baby and was very much concerned with the welfare of the baby also. The averments contrary to the above facts made by the respondent in his complaint are false. https://hcservices.ecourts.gov.in/hcservices/ 6.Even during the subsistence of the marriage with the fifth petitioner, the father of the respondent gave an advertisement on 31.05.2006 in Tamil Matrimony media web site, wherein the respondent and his father have admitted the fact that the child is that of the respondent. As the respondent could not get Visa, the fifth petitioner wanted to return the amounts remitted by the respondent and for that purpose she wanted the respondent to furnish his Bank account Number and necessary details so as to enable her to transfer the amount to his account. But the respondent failed to do so. The fifth petitioner never had any sexual intercourse with any person other than the respondent. She is also prepared for the DNA test to prove the paternity of the child. The allegations regarding alleged cheating and misappropriation are also false. The respondent deliberately deleted several sentences from the original letters sent by e-mail, edited the same and produced such edited copies along with this complaint with ulterior motive. The complaint preferred by the respondent is a glaring example of abuse of process of law. Added to that, the learned Judicial Magistrate also, without application of mind, mechanically took the complaint on file and issued summons to the petitioners, assuming that the complaint was one made for an offence punishable under Section 138 of the Negotiable Instruments Act 1881. 7.Based on the above said averments, the criminal case pending on the file of the learned Judicial Magistrate No.IV, Vellore registered as C.C.No. 204 of 2006, is sought to be quashed on the grounds that cognizance of the complaint by the Judicial Magistrate No.IV is vitiated because of non-application of mind and error apparent on the face of record and on the ground that the complaint itself is a glaring example of abuse of process of Court. 8. The arguments advanced by Mr.Muthumani Doraisamy, learned senior counsel on behalf of the petitioners and Mr.E.Kannadasan, learned counsel appearing on behalf of the respondent were heard. The materials placed before the Court were also perused. 9.The criminal proceedings initiated against the petitioners herein as C.C.No. 204 of 2006 on the file of the Learned Judicial Magistrate No.IV, Vellore, based on the private complaint preferred by the respondent herein, is sought to be quashed by invoking the inherent powers of the High Court under Section 482 Cr.P.C on the following grounds:- 1.There is apparent error on records showing non- application of mind on the part of the Judicial Magistrate No.IV in taking cognizance of the complaint and issuing summons on the assumption that the complaint was made for an offence punishable under https://hcservices.ecourts.gov.in/hcservices/ Section 138 of the Negotiable Instruments Act, whereas the complaint was made for offences under Sections 406, 506(ii) and 420 IPC. 2.The complaint is an abuse of process of law containing inbuilt improbabilities of the story of the complainant, besides the same being based on fabricated documents, which will also amount to a fraud played upon the Court. 10.The criminal proceedings initiated against the petitioners herein in C.C.No.204 of 2006 is sought to be quashed firstly on the ground that there was non-application of mind in taking cognizance of the complaint. The complaint was titled as complaint for offences punishable under Sections 405, 506(ii) and 420 IPC. However, in the prayer portion, it has been stated that the petitioners 1 to 5 had committed offences punishable under Sections 406 and 520 IPC r/w.120-B IPC. But the summons by the Magistrate was issued to answer the charge of an offence punishable under Section 138 of the Negotiable Instruments Act. Copy of the summons served on the petitioners have been included in the typed-set of papers at page 9, which shows that summons was issued citing offence for which the case was taken on file as one punishable under Section 138 of the Negotiable Instruments Act. A perusal of the records of the Court below summoned to this Court, shows that an order was passed on the complaint taking the same on file for offences punishable under Sections 406, 506(ii) and 420 IPC and issue of process was directed. The said order was passed on 20.06.2006. However, while issuing the summons, which was signed by the learned Judicial Magistrate on 23.06.2006, a mistake creeped in, as the offence was described to be one punishable under Section 138 of the Negotiable Instruments Act. The fact that the learned Judicial Magistrate has signed the impugned summons without verification, can be taken as an example of non-application of mind not in taking cognizance of the offence but in issuing the process of the Court. That may be a ground for setting aside the summons. But, so far as the validity of the order taking cognizance of the offence and directing issuance of process is concerned, the same shall have no effect. The Court shall have the power to rectify the mistake and issue summons specifying the correct offence for which the case has been taken on file. Therefore, this Court is of the view that the criminal proceedings initiated based on the complaint and the order of the learned Judicial Magistrate taking it on file and numbering it as C.C.No.204 of 2006, cannot be quashed on the sole ground that a wrong summons has been issued. 11.The fifth petitioner Kalpana is the wife of the respondent Dr. V.D.Karthikeyan. Their marriage was solemnized https://hcservices.ecourts.gov.in/hcservices/ in Arulmighu Govindaraja Perumal Koil, Udayapatti, Salem on 01.01.2005. Subsequently, as per the desire of the parents of the respondent, marriage between the fifth petitioner and the respondent was once again solemnized at Tirupathi on 31.01.2005. But the respondent, in his complaint, has suppressed the fact that his marriage with the fifth petitioner was originally solemnized on 01.01.2005 in Arulmighu Govindaraja Perumal Koil, Udayapatti, Salem. Suppressing the said fact, he has chosen to incorporate an averment in the complaint as if their marriage, for the first time, took place on 31.01.2005 at Tirupathi and the same was registered in the office of the Sub-Registrar, Periamet, Chennai on 18.02.2005. It is true that the respondent, along with the complaint, has enclosed a certified extract of Hindu Marriage Register obtained from the office of the Marriage Registrar, Periamet, Chennai. A copy of the same served on the petitioners along with the copy of the complaint has also been filed in this petition. In the said the extract of Hindu Marriage Register, at Column 7, Arulmighu Govindaraja Perumal Koil, Udayapatti, Salem is noted as the address where the marriage was solemnized. In Column 8, date of the marriage has also been noted as 01.01.2005. It is in consonance with the averments made in the affidavit of the fifth petitioner filed in this Court. The fifth respondent has not suppressed the further fact that, in order to satisfy the faith of the parents of the respondent/complainant, their marriage was once again solemnized at Sri Venkateswara Temple in Tirupathi on 31.01.2005. The fifth petitioner has not denied the fact of such a celebration of marriage in Tirupathi on 31.01.2005 as revealed by the respondent/complainant in paragraph 6 of his complaint. On the other hand, the petitioners through the affidavit of the fifth petitioner, have furnished the entire facts without suppressing anything. 12. On the other hand, it is quite obvious from the document produced by the respondent/complainant along with the complaint itself, that the respondent/complainant had suppressed the fact that the marriage originally took place on 01.01.2005 and that he has made an attempt to show that the marriage took place on the last day of January 2005 (31.01.2005), i.e., nearly one month later. The said suppression of fact was made by the respondent/complainant, as rightly pointed out by the learned counsel for the petitioners, with an ulterior purpose of showing that the fifth petitioner gave birth to a child within five months from the date of marriage. The said suppression of fact was made with an intention of showing a shorter time gap between the date of marriage and the date on which the fifth petitioner gave birth to a child. Hence, the omission to state the fact that the marriage originally took place on 01.01.2005 and the said marriage alone was registered, even though subsequently they went through a form of marriage at Tirupathi in order to satisfy the sentiments of the parents of the https://hcservices.ecourts.gov.in/hcservices/ respondent/complainant, will no doubt amount to deliberate suppression of fact. 13.One of the grounds on which he has preferred the complaint against the petitioners, especially the fifth petitioner, is that the fifth petitioner had premarital illicit intimacy with someone in USA and she was impregnated by such a person in USA, even before the marriage; that suppressing the said fact, she married the respondent/complainant and that the same would amount to cheating since the respondent/complainant would not have married her, if at all such a fact had been brought to his notice and had not been suppressed by the petitioners. The complaint had been couched in such words, as if there was no communication between the fifth petitioner and respondent/complainant prior to 31.01.2005 and that she lived with him for about six days alone during which period she would not have conceived. The very language used by the respondent/complainant is extracted here under for better appreciation:- "This act of the 5th accused and her people in deliberately suppressing that the fifth petitioner had got impregnated before November 2004 though some Tom dick and harry in USA amount to plain act of cheating by the accused." 14. The respondent/complainant has made an attempt in the complaint to project him to be an ignorant person to marry the fifth petitioner, who was already pregnant through some other person. It should be noticed that the respondent/complainant is a doctor by profession and also a post graduate in Ophthalmology. In the sworn statement of the respondent, he has stated that he is a Medical Officer and Eye Specialist consultant in Tamil Nadu Medical University and also working as a Professor in Meenakshi Medical College Hospital, Kancheepuram. It is highly improbable, as rightly contended by the learned counsel for the petitioners, that he would have been cheated by suppressing the pregnancy of the fifth petitioner before her marriage with him. 15.On the other hand, the fact remains that the respondent/complainant had suppressed a vital fact that there was premarital sexual intercourse by him with the fifth petitioner and the fifth petitioner allowed it, as their marriage had been settled by the elders. The fifth petitioner has also produced documents to show that she had been to Pondicherry and was in the company of the respondent in the first week of October 2004, where they had sexual intercourse; that the same was the cause of her pregnancy and that the fact that she was carrying a child was confirmed by the respondent/complainant himself by getting her examined by an Obstetrician and Gynaecologist in the Pondicherry Institute of https://hcservices.ecourts.gov.in/hcservices/ Medical Sciences, where the respondent was employed at that point of time. The fifth petitioner has also produced documents to show that the medical certificate and laboratory results dated 28.12.2004 were signed and sent by the respondent to the fifth petitioner to USA. It is quite obvious from the same that the respondent/complainant, not only had sexual intercourse with the fifth petitioner in the first week of October 2004 itself, but also was aware of the fact that the fifth petitioner became pregnant because of such sexual intercourse he had with her. 16. On 05.10.2004, the fifth petitioner was admitted in the Pondicherry Institute of Medical Sciences for tooth extraction and the same is evidenced by the copies of the admission card and the bill dated 05.10.2004, produced along with petition. Therefore, it is quite evident that the respondent herein, after his marriage was fixed with the fifth petitioner, took her to Pondicherry Institute of Medical Sciences for tooth extraction on 05.10.2004 and at that point of time the respondent/complainant was working in the said institution. It is the