Sunday, June 23, 2013

USe quash to buy time.. husband tries quash using 'complaint time barred' reason. HC refuses quash and fines husband. HC states case includes Sec 420 IPC and 3 & 4 of Dowry Prohibition Act and not time barred. HC also fines husband Rs 10000 for delaying case with a quash . pertinent to note that a year 2001 FIR being debated in 2006 quash judgement and probably the trial will take for ever !!


 
IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT :  SECTIONS 3 & 4 OF DOWRY PROHIBITION

ACT SEEKS QUASHMENT OF THE FIR

 

Crl.M.C.1950/04 & Crl.M.A.6384/2004

 

Judgment delivered on: March 31, 2006

 

 

K.M.ANEES-UL-HAQ & ORS.                                         Petitioners.

                                                  Through        Mr.G.D.Gandhi, Advocate.

 

VERSUS

 

STATE & ANR.                                             Respondents

                                                  Through        Mr.Ravinder Chadha &

Mr.Jagdish Prasad, Advocates, for State.Mr.Abdul Rehman, R-2, in person. Mr.Anees Ahmad for respondent No.3.

 

 

Manju Goel, J.



1.      In this petition under section 482 Code of Criminal Procedure (Cr.P.C.), the petitioners who are accused in FIR No.260/2001 P.S. Mayur Vihar under sections 406/420/34 of Indian Penal Code (in short `IPC') and sections 3 & 4 of Dowry Prohibition Act seeks quashment of the FIR and consequent proceedings. Although several grounds have been mentioned in the petition, at the time of hearing the only ground pressed is that of limitation and accordingly the petition will be disposed of only on the question of limitation.



2.      The petitioners' counsel submitted that the offence made out against the petitioners is only under section 406 IPC as well as under sections 3 & 4 of Dowry Prohibition Act and that on the date the FIR was filed or cognizance taken both the offences were time barred. Therefore, the real question is what offence is made out in the FIR. The complainant in the FIR is Shri Abdul Rehman. The gist of the FIR is as under:

The complainant/respondent No.2 met petitioner No.1 in 1997 and the two became good friends within a short span of time. In September, 1999 the complainant and his wife attended a marriage in the family of petitioner No.1 at Bangalore where petitioner No.1 and his wife Nusrat Fatima (petitioner No.2) proposed that their nephew (Furkhan-Ul-Haque @ Muneeb) who had earned a Degree in Electronics Engineering would be a good match for Aalya, daughter of the complainant/respondent No.2. The complainant was persuaded to agree to the proposal. Petitioner No.1 and his wife asked for an engagement ceremony in a grand scale. An engagement ceremony was

accordingly held at Asia House on 16.1.2000 and the expenditure incurred by the petitioner on that account accounted to approximately Rs.5 lakhs. Both sides mutually agreed to perform the marriage within the next 6-7 months. In a later visit to Bangalore, the complainant was shown an abandoned factory shed and it was represented to him that the proposed bridegroom was trying to secure a loan to start a business of plywood manufacturing. It was also represented to him that the proposed bridegroom was facing financial crunch. A sum of Rs.3.25 lakhs was paid to petitioner No.2 in this regard. In view of the proposal of the marriage to be held within 6-7 months of the engagement ceremony, relatives of the complainant started arriving in Delhi. On 2.10.2000, petitioner Nos.1 & 2 along with petitioner No.3 (father of Muneeb) visited the complainant and persuaded the complainant to hold the marriage ceremony at Bangalore and 4.11.2000 was fixed as the date of marriage. On 13.10.2000 the complainant went to Bangalore to make arrangements when he carried with him most of the bridal jewellery. The complainant booked a hotel for the purpose of marriage, accommodation for the baarat apart from cooks and other helps which would be required on the occasion. The complainant also booked the articles of furniture to be given as dowry. A sum of Rs.3 lakhs was given to petitioner No.2 for purchase of a car and subsequently another sum of Rs.1.5 lakhs was added towards this fund. A sum of Rs.50,000/- was given to petitioner No.2 for flowers required for the occasion of marriage. On 27.10.2000, petitioner No.2 called the complainant to postpone the marriage due to a death in the family of the bridegroom and the complainant had to agree to the postponment on account of decency. In April, 2001, the complainant again got in touch with petitioner No.2  when petitioner No.2 told him that the bridegroom was finding it difficult to settle down and was facing certain problems in the business front. In the meantime, the boy had been in constant touch with the daughter of the complainant. The business plan of the boy changed from plywood manufacturing to agricultural farming and then to the petrol pump. Later petitioner No.2 told him that the attempt to secure a loan had not succeeded and hinted that complainant should come forward to help the boy financially so that the business can be set up and the marriage can follow. The complainant and his wife by now had become anxious as a lot of time had already been spent after the engagement ceremony. They, therefore, talked to the boy at length and learnt that the boy was in dire need of Rs.5 lakhs which would see him through all problems. On 16.10.2001, the boy called Muneeb came to Delhi when the sum of Rs.5 lakhs was given to him in the presence of petitioner No.1. The boy's side assured the complainant that the marriage would be held sometime in December, 2001/January, 2002. No firm date was, however, communicated to the petitioner. In January, 2002 the boy came to Delhi and remained there for about three weeks and visited the residence of the complainant every morning and spent the day there. Petitioner No.1 agreed to persuade the father of the boy to perform the marriage immediately and assured the complainant that the problems of the boy would be over by  March, 2002 and then his parents would be asked to fix a date for marriage. During all this period, petitioner No.2 ruled all the proceedings and everything happened exactly the way she had desired. Even in the month of March,2002 no proposal for a date of marriage came from the side of the boy and they kept on putting off fixing a date by telephoning the complainant every week that they were about to come to Delhi for the purpose. In April, 2002 the complainant had become sceptic about the intentions of the petitioners. By now the boy had developed a practice of telephoning the daughter of the complainant every night. On the night prior to the date of the complaint while the boy was on telephone talking to the daughter of the complainant, the complainant took the phone and asked the boy to have his parents talk to him. The father accordingly called after half an hour and in the conversation that followed it transpired that if the complainant was interested in an early marriage he should give a sum of Rs.25 lakhs in cash to the boy. The complainant then refused to pay any such amount and asked for return of all the articles of dowry and to reimburse him for all the expenses incurred. The complainant had thus been cheated by the fraud and misrepresentation of the petitioners including petitioner  Nos.3 & 4 who are the parents of the boy as well as by the boy Muneeb (respondent No.3 herein) himself. The accused named above in the FIR were also accused of having committed breach of trust by retaining all the dowry articles particularly jewellery, clothes & cash and of extorting large sums of money. Further they were accused of wasting precious 2-1/2 years of the life of the complainant's daughter. The complainant asked for strict possible action.



3.      Admittedly, the FIR was initially registered only under sections 406/34 IPC and sections 3/4 of Dowry Prohibition Act. According to the counsel for the petitioners, the only offences made out were under section 406 of IPC and sections 3 & 4 of Dowry Prohibition Act. According to him, the date of cancellation of engagement being 5th August, 2000, the FIR could be made latest by 5.8.2001 and thus the FIR dated 25.6.2002 was clearly barred by time.



4       .For the purpose of examining the question of limitation, the only thing that can be seen at this point of time is the complaint itself. The complaint nowhere says that the engagement was called off on 5.8.2000. As per the complaint till the evening prior to the date of complaint, the complainant was contemplating the marriage to take place shortly although the complainant had become sceptic about the intentions of the boy's side, viz., the petitioners. The complaint nowhere says that the marriage/ engagement was called off on 5.8.2000. Accordingly the period of limitation cannot start from 5.8.2000. So far as the offence under section 406 is concerned, the period of limitation can start only from the date the misappropriated articles were demanded back. Going by the complaint that date would be 24.6.2002. Therefore, for the offence under section 406 IPC the complaint made on 25.6.2002, on which summons was issued on 22.2.2003, will not be barred by time.



5.      It has to be noticed that sufficient allegation about the fraud has also been made out in the complaint. The fraud complained of in the complaint is that the boy Muneeb and the petitioners defrauded the complainant into parting with large sums on the assurance that Muneeb would be married to complainant's daughter but that the petitioners as well as boy Muneeb never had the intention of performing any such marriage. Thus, three offences have been made out, namely, under sections 3 & 4 of Dowry Prohibition Act and under sections 406 & 420 of IPC. The offence under section 420 IPC is punishable with 7 years of imprisonment whereas the offence under section 406 IPC is punishable with 3 years of imprisonment. The offences under sections 3 & 4 of Dowry Prohibition Act are punishable with imprisonment for a term which shall not be less than five years & six months respectively, except for adequate and special reasons. So far as the fraud punishable under section 420 IPC & offences under sections 3 & 4 of Dowry Prohibition Act are concerned, no limitation is prescribed under section 468 of Cr.P.C. So far as section 406 is concerned, the offence takes place only when the entrusted articles are called back and the accused fails to return. This situation arose, according to the complaint, only on 24.6.2002. Therefore, the complaint was made on the following day. Summons  from the court was issued on 22.2.2003, i.e., within one year of the date of the offence. Further, section 468 (3) Cr.P.C. prescribes that when several offences are made out the limitation applicable will be determined with reference to the offence which is punishable with more severe sentence. Since the complaint includes offences of fraud punishable under section 420 IPC and sections 3 & 4 of Dowry Prohibition Act, there can be no question of limitation barring the case.



6.      The petition under section 482 Cr.P.C. is not only devoid of any merit but is totally frivolous. The filing of the petition has caused much delay in the disposal of the complaint case before the trial court. The same is accordingly dismissed with costs, assessed at Rs.10,000/-. Both parties are directed to appear before the trial court on 18th April, 2006.





                                                                                   Sd./-

March 31, 2006                                                   MANJU GOEL,J