IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.MC.No. 3402 of 2006 ------------------------- (CC. NO. 19/2006 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, ALAPPUZHA. ............. PETITIONER(S): ACCUSED 1 TO 4 ----------------------------- 1. A.V.ROGER, S/O.AMBROSE, AGED 46, NIRMALA BHAVAN, HOSPITAL JUNCTION, PARASSALA, THIRUVANANTHAPURAM. 2. FRANCIS M.D., S/O.M.M.DEVASSIA, AGED 46, INFORMATION KERALA VISION, A-23, JAWAHAR NAGAR, THIRUVANANTHAPURAM, (VALLAVANATTU HOUSE, CHANTHIROOR P.O., ALAPPUZHA). 3. ANSALAM ROGER, S/O.AMBROSE, 93-C/6Y/3, TEACHER'S COLONY, 2ND STREET, TUTICORIN. 4. C.AMBROSE, AGED 88 YEARS, NIRMALA BHAVAN, HOSPITAL JUNCTION, PARASSALA, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. J.JANET SUDHA, D/O.MARRY JOSEPH, "SWADINATHA", MEDAVILAKOM, KOLLAMCODE, VILAVAMCODE TALUK, KANYAKUMARI DISTRICT, TAMIL NADU. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRLM.A.NOS.5708/2006 & 276/2006 CLOSED. 18/9/2010 SD/- A.K. BASHEER, JUDGE. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3402 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the18th day of September,2009. ORDER Petitioners are being prosecuted for the offence punishable under Section 498A read with Section 34 IPC in CC.No.19/2006 on the file of the Judicial Magistrate of First Class, No.I, Alappuzha at the instance of respondent No.2, the de facto complainant. The gravamen of the charge as is discernible from Annexure A final report filed by the Investigating Officer is that the accused had been harassing and torturing the de facto complainant both mentally and physically demanding for more dowry. 2. The case of the de facto complainant is that a sum of Rs. 1,10,000/- was given to accused No.1 through accused No.2 for the purpose of purchasing a property jointly in his own name and that of the de facto complainant. But accused No.1 utilised the said money for purchasing the property in the name of himself and the de facto complainant. It is the further allegation that the accused had been pestering and harassing her demanding for more money and ornaments even though huge quantity of gold, Rs.2 lakhs in cash and other gifts were given to her by her parents at the time of the marriage. She further alleged that the accused had constrained her children to live separately from her husband. 3. It is not in dispute that accused No.1 married the de facto complainant in December 1992. Two sons born in the said wedlock are now aged 14 and 12 respectively. It is not in dispute that the de facto complainant left the company of her husband and family on April 26, Crl.MC.3402/06. 2 2001 and thereafter she had been residing with her mother in Tamil Nadu. While so, accused No.1 had filed a petition for custody of the two children in May 2001. Though initially custody of one of the two children was given to accused No.1, later the above order was set aside by this Court in appeal, and the matter was remitted back to the trial court. It is stated that the custody proceedings are now pending before the Family Court, Nagerkovil. 4. It is the admitted position that the marriage between accused No.1 and the de facto complainant has been dissolved by an order of court about a year ago. The petition for divorce was filed some time in June 2001 and a year thereafter the de facto complainant filed the present complaint. The Police had registered a crime in this connection as Crime No.372/2002 of Alappuzha South Police Station. But ultimately the charge sheet was laid against the petitioners only in January 2006. The said charge sheet is sought to be quashed in this petition filed under section 482 Cr.P.C. 5. I have briefly referred to the gravamen of the charge against the petitioners as discernible from the final report. It is seen from the report that the specific case of the de facto complainant was that the alleged acts of harassment and torture had taken place between 1992, the year of the marriage and 2001, when she ultimately left for her parental home. 6. Having carefully perused the materials available on record, I am satisfied that the prosecution launched against the petitioners on the basis of the vague and bald averments cannot be sustained. Crl.MC.3402/06. 3 7. The learned counsel for the petitioners has invited my attention to the order passed by a Division Bench of this Court in Annexure C common judgment in MFA1530/2001 and 402/02 arising from the order of custody passed by the District Court, Alappuzha. Apparently there is no love lost between the de facto complainant and her husband. Her relationship with the family members of her husband has never been smooth. 8. The de facto complainant had left the matrimonial home in April 2001. She had filed petition for divorce two months thereafter. But the present complaint alleging commission of the offence punishable under Section 498A IPC was filed only in September 2002. Therefore as rightly pointed out by the learned counsel for the petitioners, the present complaint is nothing but a vindictive exercise. 9. Having perused the materials available on record, I find considerable force in the above contention. More importantly, it cannot be said that an offence under Section 498 A would be attracted on the basis of the materials referred to in the final report. 10. Therefore the proceedings pending against the petitioners in CC.No.19/2006 on the file of the Judicial Magistrate of First Class, No.I, Alappuzha are quashed. Crl.MC is allowed. A.K. Basheer Judge. an.