CRM-M-15876 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-15876 of 2010 (O&M) Date of Decision:22.11.2011 Rahul Aggarwal and others ........Petitioners Versus State of Haryana and another ........Respondents ***** CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Sandeep Kumar Yadav, Advocate for the petitioners. Mr. Shekhar Moudgil, AAG, Haryana. Mr. Rajnish Chadwal, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in this petition is for quashing of FIR No.28 dated 17.01.2009 registered under Sections 498-A, 406, 323 and 506/34 IPC at Police Station City Narnaul, District Mohindergarh and all consequential proceedings arising therefrom on the basis of compromise/agreement, which had been entered into between the parties out of which only the part relating to the petitioners stands complied with and given effect to while respondent-wife has backed out of her part in the compromise/agreement. Facts in brief of the case are that petitioner No.1 Rahul Aggarwal and Sikha-respondent No.2 got married on 30.11.2007 according to Hindu rites and ceremonies. Differences arose between them and respondent No.2 started living separately with her parents w.e.f. February, 2008 and no child was born out of this wedlock. Efforts made by relatives and friends to bring the two parties together, failed. FIR No.28 dated 17.01.2009 was got CRM-M-15876 of 2010 (O&M) -2- lodged by respondent No.2 against the petitioners under Sections 498-A, 406, 323 and 506/34 IPC (Annexure P-1). During the pendency of the FIR, respondent No.2 filed a petition under Section 125 Cr.P.C. for grant of maintenance which was pending before the Chief Judicial Magistrate, Narnaul, when a compromise was entered into between the parties in the month of April, 2009. As per the said compromise, petition under Section 13-B of Hindu Marriage Act, 1955 for a decree of divorce by mutual consent was filed by complainant/respondent No.2 and petitioner No.1 on 07.04.2009. Para 5 of the petition, copy of which appended as Annexure P-2, reads as follows: "5. That with the intervention of the respectable friends and family members, the parties have decided to end their relations and to dissolve their marriage with mutual consent. It has been mutually agreed between the parties to end their matrimonial ties. All the monetary claim including maintenance and permanent alimony have been settled that the second party will pay a total sum of Rs.5,00,000/- (Rupees Five Lacs Only) to the first party, out of which 2,50,000/- (Rupees Two lac Fifty thousand) has been paid through a Bank Demand Draft No.295531000007000 issued by State Bank of Patiala branch Kotputli in the Name of Shikha (1st party) at the time of filing the present petition and the remaining amount of Rs.2,50,000/- (Rupees Two lac Fifty thousand) will be payable at the time of final judgment of the case i.e. divorce of decree. Further parties have decided to withdraw all kinds of allegation leveled against each other and agreed not to pursue any kind of legal action against each other in any court of law. It is specifically mentioned that one dowry case U/s498-A, 406, 506, 323, 494, 34 IPC pending for 26.05.2009 for filing challan by the state in the court of Hon'ble CJM, Narnaul and one other petition under section 125 Cr.P.C. filed by 1st party against second party pending for 02.05.2009 in the Court of Hon'ble CJM Narnaul, both the cases will be withdrawn by the first party unconditionally at the time of passing a decree of CRM-M-15876 of 2010 (O&M) -3- divorce U/s 13B of the Hindu Marriage Act." Alongwith this petition, affidavit was also given by petitioner No.1 and respondent No.2. Copy of the affidavit of respondent No.2 is appended as Annexure P-3, wherein, in para 3, it has been stated as follows: "That the contents of the petition may kindly be read as part of this affidavit." As per the said agreement, decree of divorce by mutual consent under Section 13-B of Hindu Marriage Act, 1955 was passed on 24.10.2009, which has been appended as Annexure P-4. In the said decree, joint statement of the parties have been recorded wherein, it has been mentioned about the compromise and it has further been stated that it was agreed upon between petitioner No.1 and respondent No.2 that petitioner No.1 would pay a sum of ` 5 lacs in lump sum towards dowry articles and permanent alimony. A bank draft of ` 2, 50,000/- was given by him to respondent No.2 on 17.04.2009 and another bank draft for ` 2, 50,000/- has been handed over to her on the date of passing of decree. Despite there being a specific agreement to withdraw the criminal case eminating from the FIR and proceedings under Section 125 Cr.P.C. intiated by respondent No.2, the said part has not been honoured by her despite the petitioner having fulfilled his part of the agreement and compromise, which was entered into between the parties. Counsel for the petitioners on the basis of these facts submits that the FIR deserves to be quashed on the ground that she had backed out of the agreement and affidavit which has been filed in Court and the continuance of these proceedings would be an abuse of process of Court. In support of this contetion he placed reliance upon judgment of Hon'ble Supreme Court in the case of Ruchi Agarwal Versus Amit Kumar CRM-M-15876 of 2010 (O&M) -4- Agarwal 2004(4) RCR (Criminal) 949. Accordingly, he prays for quashing of the FIR and all other consequential proceedings arising therefrom. Counsel for respondent No.2/complainant could not dispute the fact about the petition filed under Section 13-B of Hindu Marriage Act, 1955 as also the affidavit which has been appended thereto Annexure P-2 and Annexure P-3 respectively. However, while referring to the judgment and decree dated 24.10.2009 (Annexure P-4), vide which the divorce by mutual consent under Section 13-B of Hindu Marriage Act, 1955 has been granted and especially the joint statement made before the Court he submits that there is no specific statement with regard to the withdrawal of the criminal proceedings initiated by her. His submission is that the petitioner had signed the affidavit as drafted by the counsel and is thus not binding on her. He accordingly, submits that the petitioner is not entitled to the claim made in the present petition and, therefore, this petition deserves to be dismissed. I have heard counsel for the parties and gone through the records of the case. The facts as narrated above are not in dispute. The petition filed under Section 13-B of Hindu Marriage Act (Annexure P-2) and the affidavit (Annexure P-3) as submitted by respondent No.2 in Court in support of the petition under Section 13-B Hindu Marriage Act, 1955 are not in dispute.The relevant para 5 of the petition stands reproduced above which leaves no manner of doubt that it was specifically agreed between the parties, as a term of compromise, that the case initiated under Section 498- A, 406, 506, 323, 494, 34 IPC which was pending for filing of challan by the State in the Court of Chief Judicial Magistrate, Narnaul and another petition under Section 125 Cr.P.C. filed by the complainant against petitioner No.1 which was pending before the Chief Judicial Magistrate, Narnaul, both the cases were to be withdrawn unconditionally by respondent CRM-M-15876 of 2010 (O&M) -5- No.2/complainant at the time of passing of the decree of divorce under Section 13-B of Hindu Marriage Act, 1955. Para No.3 of the affidavit, appended with the petition filed under Section 13-B of Hindu Marriage Act clearly specifies that the contents of that petition may be read as part of the affidavit. The only submission which has been put forth by the counsel for respondent No.2 is that the affidavit was prepared by the advocate and she had only signed the same and is thus not binding on her, does not cut any ice as the petitioner is a law graduate which fact is not disputed by her counsel in Court and not denied in the pleadings also. Such plea requires mere mention to be rejected outrightly. The other plea that in the joint statement made by the parties in divorce proceedings before the Court there is no specific mention with regard to the withdrawal of the criminal proceedings initiated by her also does not carry weight for the reason that compromise is not disputed, she is bound by the affidavit filed by her in Court in divorce proceedings wherein in para 5 of the petition under Section 13-B of Hindu Marriage Act, 1955, respondent No.2 specifically agreed to withdraw unconditionally both criminal cases i.e. FIR and 125 Cr.P.C. proceedings inititated by her at the time of passing of decree of divorce under Section 13-B of the Hindu Marriage Act, 1955. She had not done so and had not honoured her part of the agreement. She has thus, backed out of the terms especially when the compromise has been partly given effect to and petitioners have complied with their part of the agreement in all earnest and sincereity. She has taken a sum of ` 5 lacs from petitioner No.1 by way of two bank drafts as is apparent from the decree passed under Section 13-B of Hindu Marriage Act, 1955, (Annexure P-4), which was towards the settlement of the dowry and permanent alimony. The present FIR, if allowed to continue would be an abuse of process of Court as the same is not being pursued with bona fide intention but to only harass the petitioners. The case in hand is fully covered by the CRM-M-15876 of 2010 (O&M) -6- ratio of the judgment of the Hon'ble Supreme Court in the case of Ruchi Agarwal (Supra), wherein the Hon'ble Supreme Court has depricated the backing out of compromise by one of the parties, which has been given effect to by the other party and that too during Court proceedings. The present petition is thus allowed. FIR No. 28 dated 17.01.2009 registered under Sections 498-A, 406, 323 and 506/34 IPC at Police Station City Narnaul, District Mohindergarh and all other consequential proceedings arising therefrom are hereby quashed qua the petitioners. 22.11.2011 (AUGUSTINE GEORGE MASIH) harjeet JUDGE