IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940 Crl.MC.No. 1079 of 2016 AGAINST THE ORDER/JUDGMENT IN CC 2518/2015 of J.M.F.C.-II, THRISSUR CRIME NO. 618/2015 OF NEDUPUZHA POLICE STATION, THRISSUR PETITIONER/ACCUSED NOS.2 TO 5 1 VASU, AGED 67 YEARS S/O.RAMAN, KILAVANPARAMBIL HOUSE, CHIYYARAM DESOM & VILLAGE, THRISSUR DISTRICT. 2 PUSHPA, AGED 63 YEARS W/O.VASU, KILAVANPARAMBIL HOUSE, CHIYYARAM DESOM & VILLAGE, THRISSUR DISTRICT. 3 SHAIJU, AGED 41 YEARS S/O.VASU, KILAVANPARAMBIL HOUSE, CHIYYARAM DESOM & VILLAGE, THRISSUR DISTRICT. 4 RAGHI, AGED 31 YEARS W/O.SHAIJU, KILAVANPARAMBIL HOUSE, CHIYYARAM DESOM & VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT/STATE & DEFACTO COMPLAINANT: 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031. 2 NANTHITHA K.N, AGED 36 YEARS D/O.NANTHANAN, KADOOKADAN HOUSE, MANITHARA, CHOOLISSERY PO, AVANNUR VILLAGE, THRISSUR DISTRICT 680301. BY ADV. SRI.M.PREMCHAND OTHER PRESENT: PP SMT.V.SREEJA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1079 of 2016 2 O R D E R
Petitioners stand arrayed as accused Nos.2 to 5 in C.C. No.2518/2015 of Judicial First Class Magistrate Court II, Thrissur for offences punishable under Sections 406, 498(A) read with Section 34 IPC. According to the prosecution, the 1st accused had married the 2nd respondent on 05.09.2004. Two children were born in the matrimonial relationship. In the meanwhile, the 2nd respondent laid a complaint alleging matrimonial cruelty. It was stated that gold ornaments worth 46 sovereigns given to her at the time of marriage was misappropriated. It was also stated that accused Nos.2 and 5 demanded more dowry. Pursuant to the complaint lodged, crime was registered as Crime No.618/2015 of Nedupuzha Police Station, Thrissur District and after investigation Annexure C final report has been laid.
Crl.MC.No. 1079 of 2016 have approached this court to quash the proceedings. According to the learned counsel for the petitioners, Annexure A is the complaint submitted to the Police. It refers to the alleged misconduct on the part of the husband. The 1st petitioner is her husband’s father, 2nd petitioner his mother, 3rd petitioner his brother and 4th petitioner is the wife of the 3rd petitioner.
3. It was alleged in the complaint that on the date of marriage, petitioners 1 to 4 directed the 2nd respondent to remove the gold ornaments and to hand it over to them. It is stated that the offence under Section 406 IPC is attracted since the entire money and gold ornaments were misused by the accused.
4. In answering this allegation, learned counsel for the petitioners invited my attention to the final report wherein it is specifically stated that on the request of the 3rd accused, the gold Crl.MC.No. 1079 of 2016 ornaments were removed by CW1/the wife and thereafter the 1st accused failed to return the gold ornaments. According to the learned counsel, to constitute an offence under Section 406 IPC, there must be clear evidence regarding entrustment and misappropriation. It was held that the available evidence on record indicates that the gold ornaments were entrusted to the 1st accused though the 1st accused did not return it. According to the learned counsel, this clearly shows that the de facto complainant was proceeding on the basis that it was the 1st accused who had misappropriated the gold ornaments.
5. A perusal of the complaint shows that specific and definite acts of cruelty are attributed to the 1st accused. Though there are certain allegations against the petitioners, the complaint shows that most of the allegations are generalized in nature. The specific date of the Crl.MC.No. 1079 of 2016 incident of acts committed by the petitioners is not forthcoming.
Having considered this, I feel that an offence under Section 498A will not lie as against the petitioners herein. Hence, I am inclined to hold that Section 406 IPC cannot lie against the petitioners. Consequently, the remaining offences have also could not be fastened on the petitioners. Accordingly, Crl.M.C. is allowed. All further proceedings in C.C.No.2518/2015 of Judicial First Class Magistrate Court II, Thrissur to the extent it affects accused Nos. 2 to 5 stand quashed.
SUNIL THOMAS, JUDGE Crl.MC.No. 1079 of 2016 APPENDIX PETITIONER’S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE COMPLAINT FIELD BY THE 2ND RESPONDENT BEFORE THE THRISSUR TOWN WEST POLICE ANNEXURE B TRUE COPY OF THE FIR REGISTERED BY THE NEDUPUZHA POLICE IN CRIME NO.618/2015 ANNEXURE C TRUE COPY OF THE FINAL REPORT FILED BY THE NEDUPUZHA POLICE ANNEXURE D TRUE COPY OF THE RECEIPT ISSUED BY THE THRISSUR CORPORATION ANNEXURE E TRUE COPY OF THE VOTERS ID CARD IN RESPECT OF THE 3RD PETITIONER ANNEXURE F TRUE COPY OF THE AADHAR CARD ID CARD IN RESPECT OF THE 4TH PETITIONER SHOWING SEPARATE RESIDENCE Pn 01/11