BAIL SLIP --- The Petitioner/Accused No.1 viz., Chandrasekar was directed to be released on bail as per the order of this Court dated 31.1.2008 and made in Crl.M.P.No.1/08 in Crl.R.C.No.89/08. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 01.07.2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Revision Case No. 89 of 2008 Chandrasekar .. Petitioner/Accused No.1 Versus State rep. by The Inspector of Police Kamanaickenpalayam Police Station Palladam Taluk (Crime No. 382 of 2004) .. Respondent/Complainant Prayer: Petition filed under Section 397 and 401 of Cr.P.C against the judgment dated 28.11.2007 in C.A. No. 216 of 2007 passed by the learned Principal Sessions Judge, Coimbatore confirming the judgment dated 07.05.2007 in C.C. No. 60 of 2005 passed by the learned District Munsif-cum-Judicial Magistrate, Palladam, Coimbatore and set aside the same. For Petitioner : Mr.L. Mouli For Respondent : Mr.V.R. Balasubramanian Addl. Public Prosecutor O R D E R The revision petitioner herein is the first accused in C.C. No. 60 of 2005 on the file of learned District Munsif-cum-Judicial Magistrate, Palladam. He was convicted for offences under Sections 498(A) and 406 IPC and Section 4 of Dowry Prohibition Act. For the offence under Section 498(A), he was sentenced to undergo six months SI and to pay a fine of Rs.1,000/- in default to undergo one month SI, for the offence under Section 406 IPC, he was sentenced to undergo six months SI and to pay a fine of Rs.500/- in default to undergo one month SI and for the offence under Section 4 of Dowry https://hcservices.ecourts.gov.in/hcservices/ Prohibition Act, he was sentenced to undergo three months SI and to pay a fine of Rs.500/- in default to undergo one month SI. The said convictions were confirmed by the learned Principal Sessions Judge, Coimbatore in C.A. No. 216 of 2007 dated 28.11.2007. Aggrieved by the said order, the petitioner has preferred the present criminal revision petition. 2. The case of the prosecution in brief is that P.W.1 and the first accused fell in love with each other and had married on 11.09.2002 and they were living separately. P.W.2 is the mother, P.W.3 is the grand mother and P.W.4 is the uncle of P.W.1. The love marriage was not approved by the members of the first accused family, but subsequently, P.W.1 went along with her husband to her mother-in- law's place and she stayed for 15 days. The second accused got jewels from P.W.1 saying that it would be kept safely. When P.W.1 demanded those jewels later on, she was informed by P.W.2 that jewels have been sold. The first accused was residing with P.W.1 and by abandoning her, he had gone to his parents house. P.W.1 also gave birth to a male child on 23.07.2003. Even after birth of the child, the first accused had not come to take care of the child. Father of P.W.1 died on 03.02.2004. On 26.02.2004, P.W.1 sent a notice to the first accused through her lawyer for divorce. The accused demanded a sum of Rs.3 lakhs for giving consent for divorce. She gave a complaint before All Women Police Station, Coimbatore. The husband of P.W.1 was called and the matter was compromised. The Inspector of Police instructed the first accused to take P.W.1 and live with her. In spite of his promise, he had not taken P.W.1 to the matrimonial home. During September 2004, P.W.1 went to the house of A1 & A2 and at that time, the third accused was also present. The second accused refused to take P.W.1 stating that unless a sum of Rs.1 lakh and 25 sovereigns of jewels were given, she would not be permitted to live with her husband. Again on 21.10.2004, P.W.1 along with her mother, P.W.2 including P.W.4 and others went to the house of the accused and at that time also, the accused demanded for Rs.1 lakh and 25 sovereigns of jewels. On the next date i.e. 22.10.2004, P.W.1 gave a complaint Ex.P.1. On the basis of the complaint given by P.W.1, a case was registered and the matter was investigated and final report was filed against Accused Nos. 1 to 3. In order to establish the case, prosecution had examined P.Ws. 1 to 10, marked Ex.Ps.1 & 2. The accused were questioned under Section 313 Cr.P.C. and they denied their complicity. The trial Court, after analyzing the evidence, acquitted the Accused Nos. 2 & 3 and convicted the first accused alone. The said conviction was confirmed by the Appellate Court. 3. Learned counsel appearing for the petitioner would submit that the Courts below convicted the first accused on vague allegations. P.W.1 has not given any specific evidence regarding cruelty. The accused also filed a petition for restitution of conjugal rights. The charge is that on 21.10.2004, the accused demanded a sum of Rs.1 lakh and 25 sovereigns of gold, but in the https://hcservices.ecourts.gov.in/hcservices/ evidence, P.W.1 stated that she went along with her family members and also with one Ibrahim and the independent person has not been examined by the prosecution. Learned counsel for the petitioner would further submit that the version of P.W.1 that jewels were given to the accused and those jewels were not retuned was not mentioned in Ex.D1, the divorce notice sent by P.W.1. He also submitted that the Courts below erred in convicting the accused under Dowry Prohibition Act, since even according to the prosecution case, the marriage between the first accused and P.W.1 is a love marriage. There is no demand of any dowry and the ingredients of the offence under Section 4 of Dowry Prohibition Act are not attracted. 4. Per contra, learned Additional Public Prosecutor submits that P.W.1 categorically stated that when she went to her mother-in-law's place for Deepavali, P.W.1 gave the jewels to the accused and those jewels were not returned. The first accused had abandoned P.W.1 and he refused to live with P.W.1. When P.W.1 and others approached the accused, there was a demand of Rs.1 lakh and 25 sovereigns of jewels. The evidence of P.W.1 is corroborated by the evidences of P.Ws.2 to 4. He further submits that the complaint was given by P.W.1 on 21.07.2004 and the first accused gave his consent in writing on 05.08.2004 to live with P.W.1, but subsequently, failed to do so. Thereafter, again a complaint was given on 22.10.2004, which is in Ex.P.1. 5. This Court considered the submissions made on either side and perused the materials available on record. 6. It is evident that P.W.1 and the first accused loved each other and married and their marriage was not approved by the family members of the first accused. Both the first accused and P.W.1 lived separately. At the same time, she had gone to her mother-in-law's place for Thalai Deepavali and at that time, she gave all her jewels given by the mother of P.W.1. Those jewels were taken by the first accused and handed over to the second accused. When she demanded her jewels back, she was informed by the second accused that jewels have been sold. Such fact is not mentioned in Ex.D.1, the notice sent by her. Further, accused to P.W.2, those jewels were given by P.W.1 at the time of Deepavali. Hence, this part of evidence of P.W.1 is not convincing this Court. Therefore, the conviction imposed on the petitioner under Section 406 IPC is not sustainable. 7. The petitioner was also convicted for offence under Section 4 of Dowry Prohibition Act. The definition of Dowry as per the Section 2 of Dowry Prohibition Act is as follows: "In this act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly; https://hcservices.ecourts.gov.in/hcservices/ a)by one party to a marriage to the other party to the marriage; or b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; According to the prosecution case, at the time of marriage of P.W.1 and the first accused, there was no demand of any dowry. The version of the prosecution that after the marriage when P.W.1 and the first accused were living separately, the demand made by the accused for a sum of Rs.1 lakh and 25 sovereigns cannot be termed as demand of dowry, since the demand is not made in connection with the marriage. Any demand for any property or valuable security is made subsequent to the marriage, but not in connection with the marriage, it should be termed only as unlawful demand. In the result, the conviction imposed on the revision petitioner under Section 4 of Dowry Prohibition Act is not sustainable. 8. It is the evidence of P.W.1 that the first accused did not live with her and when she went to the house of the accused during September 2004, the second accused demanded a sum of Rs.1 lakh and 25 sovereigns of gold. Again on 21.10.2004, she went along with her mother, including others, the first accused was also present and all the accused demanded the same. Refusing to take back P.W.1 and demanding some money amounts to harassment of the woman with the view to coercing her to meet the unlawful demand. It was contended by the learned counsel for the petitioner that the allegations are vague. The specific part of the evidence given by P.W.1 that the petitioner refused to take her back and there was a demand of money cannot be said that it was only a vague allegation. Ex.D.1 is the notice sent by P.W.1 through her counsel to the first accused. The accused himself has chosen to mark the same in Ex.D.1. In Ex.D.1, it is mentioned that the first accused deserted P.W.1 without any sufficient cause. The first accused had not taken care of the child, who was given birth on 23.07.2003. The first accused and others attacked P.W.1's character. It was also mentioned that the intention of the first accused was to extract money from P.W.1. As per Ex.D1, P.W.1, due to frustration, had sent a notice for divorce, but no reply was sent by the first accused for the said notice. P.W.1 gave a complaint to the Police on 21.10.2004. Though P.W.1 had sent a notice for divorce, when a compromise was made by the Police, P.W.1 had agreed to live with the first accused, but it was only the first accused, who failed to live with P.W.1. The willful conduct of the first accused / petitioner had caused mental agony to P.W.1 and thereby subjected P.W.1 to cruelty. 9. For the above said reasons, the conviction imposed on the revision petitioner for the offence under Section 498(A) is confirmed. Therefore, the conviction and sentence imposed on the https://hcservices.ecourts.gov.in/hcservices/ revision petitioner for offences under Section 406 IPC and Section 4 of Dowry Prohibition Act are set aside. 10. The sentence of imprisonment imposed on the revision petitioner for the offence under Section 498(A) IPC is reduced to three months S.I., instead he is sentenced to pay additional fine amount of Rs.1,000/-. The fine amount paid by the revision petitioner before the trial Court for offences under Section 406 IPC and Section 4 of Dowry Prohibition Act shall be adjusted towards the enhanced fine amount. The criminal revision petition is partly allowed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ar To 1. The Principal Sessions Judge, Coimbatore 2. The District Munsif-cum-Judicial Magistrate, Palladam 3. -Do- Thro The Chief Judicial Magistrate, Coimbatore. 4. The Inspector of Police Kamanaickenpalayam Police Station Palladam Taluk 5. The Public Prosecutor, High Court, Madras 1 cc to Mr.L.Mouli, Advocate, Sr.No.47295 Criminal Revision case No. 89 of 2008 JRG {CO} TP/15.7.2010. https://hcservices.ecourts.gov.in/hcservices/