Bhaskar Lal Sharma & Anr vs Monica

The High Court by its order dated 4.10.2005 passed in Criminal Revision No. 452 of 2005 directed impounding of the passport of Vikas stating that the efforts were being made for reconciliation. Admittedly talks of reconciliation failed. The High Court modified the said finding stating that the marriage seems to have broken down irretrievably and directed return of the passport to him by an order dated 6.10.2005. Pursuant to the liberty granted by the High Court, appellants as also Vikas filed an application on 15.10.2005 for permission to go abroad, which was allowed subject to the condition that additional bank guarantees be furnished of Rs.1 lakh for each of the applicant.

Monica challenged the said order before the High Court which was dismissed by an order dated 18.10.2005.

On 21.11.2005, Monica filed a Criminal Complaint No.574/1 under Section 420 of the IPC against the appellants and Vikas inter alia alleging all material facts relating to the first marriage and divorce and in particular the fact that the first wife of Vikas in her divorce suit alleged acts of cruelty on the part of her husband had not been disclosed. 7

Another petition marked as Criminal Misc. (Main) No. 519 of 2006 was filed by her for a direction upon the learned trial court to dispose of the case filed by her under Sections 498A/406 IPC and 420 IPC within a time frame of about 3 months and the appellants as also Vikas be directed to submit all the papers relating to their properties in India before the learned trial court.

The High Court by its order dated 7.2.2006 dismissed the petition filed by the respondent with costs.

On 27.3.2006, the order dated 7.2.2006 passed by the High court was challenged by the respondent before this Court by way of Special Leave Petition (Criminal) No.1220 of 2006, which was dismissed with a direction to the trial court to expedite the proceedings.

Brother of the first appellant lodged a First Information Report ("FIR") with Moti Dungri Police Station, Jaipur. We are, however, not concerned with the said case at present.

We may also place on record that applications dated 9.5.2008 and 31.5.2008 respectively were also filed before this Court by the respondent for mediation Chandan Sharma, another son of the appellants came from Hong Kong to India for that purpose. Monica, however, insisted that appellant No.1 himself should come to India before her husband Vikas comes, which was not acceptable to the appellants as the reconciliation of the disputes was to take place between Monica and her husband Vikas. 10

On 9.5.2008, Vikas appeared before this Court in Transfer Petition (Criminal) No. 258/2007 and this Court by an order dated 9.5.2008 directed the complainant and Vikas to report to the Senior Coordinator of the Mediation Cell at Tis Hazari Courts, Delhi to explore the possibilities of resolving/settlement of their matrimonial discord. Pursuant thereto the parties appeared before the learned Senior Mediator and the mediation processes were resorted to on day to day basis. Indisputably however, the said negotiation failed. The matter was listed before this Court on 11 11.6.2008. The parties were given an opportunity to reconcile their disputes. However, they could not arrive at any settlement.

The allegations relating to the place where the marriage took place has nothing to do with an offence under Section 498A of the IPC. Allegations that appellant No.2 kicked the respondent with her leg and told her that her mother to be a liar may make out some other offence but not the one punishable under Section 498A. Similarly her allegations that the appellant No.2 poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant could not be said to be offences punishable under Section 498A. Even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the IPC.

The complaint petition must also be read with several other documents which form part of the complaint petition. The children from the first wife of Vikas were with Monica. Vikas affirmed an affidavit so as to enable Monica to apply for their passports. Vikas, therefore, wanted to have children with them.

We may now consider the question as to whether the complaint petition discloses any offence under Section 406 of the IPC.

We have noticed heretobefore that the correspondences exchanged between the spouses or by and between Vikas and his in-laws do not disclose any allegation which would amount to criminal misconduct on the part of the appellants.

With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.

Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature.

Entrustment is said to have been made to the appellants and/or their son.

No definite case of entrustment of any property has been made against the appellant No.1.

He is only said to have given back to the complainant's parent the entire cloth and jewelry. No demand was made by the respondent.

{See also Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab & Ors.[2009 (7) SCALE 85]} We, therefore, are of the opinion that prima facie a case under Section 406 of the IPC has been made out only against appellant No.2.

The appeals are allowed to the extent mentioned hereinabove. The summoning order dated 21.3.2005 passed against the appellants except Appellant No.2 is set aside. It is clarified that the proceedings can continue only against the appellant No.2, that too in respect of Section 406 IPC only.

JULY 27, 2009