1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2296 OF 2010 Dr. Sau Rohini Patil .... Applicant. V/s Dr. Satish S/o Dashrath Patil and anr. .... Respondents. Mr S.V. Manohar alongwith Devan Chauhan i/b F.F. & Associates for the applicant. Mr. S.K. Shinde for Respondent No.1. Mr. A.S. Shitole, APP for the State. CORAM: V. M. KANADE, J. DATE : 28TH JUNE, 2010 P.C.:- 1. Heard the learned Counsel for the applicant, learned Counsel for Respondent No.1. 2. Applicant is challenging the order passed by the learned Chief Judicial Magistrate, Nashik dated 28/1/2010 whereby process has been issued on the complaint filed by Respondent No.1 under sections 417 and 420 of the Indian Penal Code. Applicant is the ex-wife of the respondent No.1 – Complainant. Decree of divorce by mutual consent was passed under section 13-B of the Hindu Marriage Act and the consent terms were filed in the said Petition for divorce by 2 mutual consent. In the consent terms, parties have agreed that the complainant be permitted to meet Aiket who is the son born out of the said marriage either at Nagpur or at Nashik in holidays. In the complaint, it is alleged that in spite of the said consent terms which were filed, the complainant was not allowed to meet his son. It is, therefore alleged that the complainant was induced to sign the consent terms and he gave his consent for divorce only because he was assured that he would be allowed to meet his son. 3. The learned Magistrate has passed a detailed order dated 28/1/2010 and has observed that, prima facie, there is a case of deception by the accused and a false representation has been made. 4. I have heard the learned Counsel for the applicant and the learned Counsel for Respondent No.1. I have perused the complaint. In my view, even if the averments in the complaint are read and accepted, no offence under section 417 and 420 of the Indian Penal Code is made out. In the first place, there is no question of wrongful loss or wrongful gain and it cannot be said that the son Aniket is a property within the definition of the word “property” in Indian Penal Code or Criminal Procedure Code or the General Clauses Act and, therefore, by any stretch of imagination it cannot be said that there was deception or cheating by the applicant. The complainant, if he has no remedy for seeking access, is 3 always at liberty to take appropriate steps for the purpose of execution of decree by taking out appropriate proceedings in the appropriate court. Filing of criminal complaint under section 420 is not a remedy for execution of the Consent Terms. This is a clear case of abuse of process of law and the learned Magistrate, in my view, has clearly erred in issuing the process on the basis of averments made in the complaint. There is clear non-application of mind by the learned Chief Judicial Magistrate. 5. Application is allowed. The order passed by the Chief Judicial Magistrate Nashik dated 28/1/2010 issuing the process in RCC No.977 of 2009 is quashed and set aside. It is, however, clarified that the complainant is always at liberty to take appropriate steps for the purpose of seeking access and if such an application is made it shall be considered on merits and in accordance with law. (V.M. KANADE, J.) 4