IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3467 of 2005()
1. SUVARMA KUMARI, AGED 41 YEARS,
... Petitioner
2. M.M.KUNJUMON, AGED 55 YEARS,
Vs
1. T.K.VIJAYAN, AGED 47 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SUBAL J.PAUL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :04/07/2008
O R D E R
V.K. MOHANAN, J.
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Crl.M.C.No. 3467 of 2005
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Dated this the 4rd day of July, 2008
JUDGMENT
The C.C. NO. 1966/2005 is a case instituted upon private
complaint at the instance of the first respondent herein for the offences
punishable under sections 406, 420, 120 B read with section 34 of
I.P.C. The first petitioner herein was the former wife of the first
respondent herein. After the divorce, the petitioners herein entered into
a marital life and they are residing as man and wife. Though a
compliant was preferred before the police by the first respondent
against the petitioners, after investigation the police referred the
compliant as false. Thereafter first respondent herein had preferred a
protest complaint, on the basis of which the court took cognizance.
2. The case of the petitioners can be summarised as follows. The
first petitioner herein and the first respondent herein were married on
7/09/1985 in accordance with the religious customs prevailed among
the Hindu Religion and in their wedlock a girl child borne. But
subsequently the marital relationship broken and at the instance of the
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first petitioner herein, the marriage was dissolved as per the Annexure
A1 judgment dated 2/11/202 in O.P. 151/2002 of the family court,
Ernakulam. The main allegation is that the first respondent herein ever
since their marriage dated 7/09/1985 she had no peace of mind but
only ill-treated her and he was a habitual drunkard and harassed her
both physically and mentally and also misappropriated the gold
ornaments. Annexure A1 is an ex parte order,however the same is still
in force and it was not challenged by the first respondent. Thus, on the
basis of Annexure A1 order, the marriage between the first petitioner
and the first respondent herein was dissolved as per the decree passed
there on. It is also the case of the first petitioner that the second
petitioner was also a divorcee,as evidenced by Exhibit A3 judgment
dated 8/5/2003. Accordingly both the petitioners were united and
settled as man and wife.
3. The petitioners were married on 6/10/2003. It is also the case
of the petitioners that after marriage first respondent herein had
preferred a complaint before the police with the allegation of
misappropriation of property, cheating etc and the police after
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conducting an elaborate enquiry referred the case as false one.
Thereafter the first respondent herein had preferred Annexure A4
petition namely OP No. 117/2005 dated 24/1/2005 before the family
court against the petitioner with a prayer for decree directing the
respondents therein to return the articles mentioned in schedule A there
to which alleged to have been entrusted with the first petitioner during
the subsistence of the marriage between them. There is also another
prayer for a direction, directing the respondents to return a sum of Rs.
93,321/- as cash entrusted with the first petitioner by the respondent. A
copy of the above petition is produced as Annexure A4 along with this
petition. It is the specific case of the petitioner that after filing the
Annexure A4 petition before the family court, Ernakulam, the first
respondent herein had preferred Annexure A2 protest complaint before
the court below and the court below has taken cognizance upon the
protest complaint. Thereafter the petitioner herein had also filed a
petition i.e. Annexure A5 dated 21/3/2005 before the family court for
the return of the articles mentioned therein. So according to the
petitioners, the first respondent herein had approached both the
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Criminal court as well as family court for return of the articles
mentioned therein. According to the petitioner, on the basis of the same
subject matter the petitioners are forced to face proceedings in
different courts and one of such proceedings is pending before the
Judicial First Class Magistrate court, Ernakulam and hence the same is
liable to the quashed.
4. I have heard the learned counsel for the petitioner. Though
notice was served through special messenger on the first respondent,
he has not chosen to appear. The learned counsel for the petitioner
submitted that by initiating two proceeding before different courts, the
petitioners are being harassed by the first respondent and Annexure 2
compliant is frivolous and vexatious one . On the factual background
mentioned earlier, the counsel for the petitioner submitted that the
marriage between first petitioner and first respondent has already been
dissolved as per legal and valid order passed by the competent court
and thereafter the first respondent is chasing her and harassing by
implicating in false complaints. It is also stated by the counsel for the
petitioner that a close scrutiny of Annexure A2 complaint and
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Annexure A4 petition before the family court, would show that
grievance of the first respondent is with respect to the articles and
household items mentioned therein and not for a bona fide prosecution.
5. The learned counsel for the petitioner invited my attention
to the Annexure A2 compliant. On a perusal of Annexure A2
complaint, it is clear that the main grievance of first respondent is
with respect to the property and cash mentioned therein. In the
beginning of the third paragraph of Annexure A2 compliant the above
agony of the first respondent is specific. It is stated “being a trustee for
the complainant, the first accused is duty bound to return the articles
and cash to the complainant”. In the same page towards the last of the
paragraph, it is stated that “the complainant is entitled to get back the
above goods from the accused.” It is also stated therein that second
accused is also arrayed in the case as he is in total control of the first
accused and the articles are kept for his use and utilised by him.
Therefore the relief moulded thereon in the following words: ” hence
both the accused are liable to be directed by this court to return the
articles to the complainant.” It is also stated that, it is submitted that
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the above actions of the accused persons are punishable under Section
120 B , 406, 420 read with section 34 of I.P.C”. In the 3rd page of the
compliant, apart from the above statement regarding the claim, what
stated is that the accused persons dishonestly misappropriated and
converted the above named articles for their own use. Another
averment is that the articles mentioned above are entrusted with the
first accused, and without the permission of the complainant, the
accused persons dishonestly misappropriated and converted the articles
for their own use. It is also stated that the items mentioned herein are
understandably kept in the residence of the accused. Apart from the
above bald statements, there is no specific allegation so as to attract the
ingredients of Section 406, 420 120 B and 34 of I.P.C. In this respect
it is relevant to note that the first respondent/complainant do admit that
the first petitioner was his wife and after their marriage on 7/09/1985,
they were residing together as husband and wife for the last several
years. Prima facie in such a situation, on the household articles, both
husband and wife have got right and it cannot be said that the wife
alone has got dominion over such property. Therefore, it cannot be
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said that there was any entrustment so as to attract section 406 of I.P.C.
It is equally important to note that marriage was taken place between
the first petitioner and first respondent on 7/09/1985 and they were
residing as husband and wife for a quite long time, but due to
indifference the marital relationship failed and dissolved the same as
per Annexure A1 judgment. Admittedly Annexure A1 judgment dated
2/11/2002 and even according to the petitioners, the present marriage
between the petitioners was taken place on 6/10/2003, which shows
that while subsisting the matrimonial relationship between 1st petitioner
and 1st respondent, no connection between the petitioners. In the above
circumstances especially in the absence of any allegations to establish
the ingredients of section 420, there is no meaning in prosecuting the
petitioners under sections 420. There is also no arguments to attract the
provisions of sections 120 B and 34 of the I.P.C.
6. It is worthwhile to note that the first respondent/
complainant in Annexure A2, has already approached the family court
by filing Annexure A4 petition for the return of the articles. In
Annexure A2 protest complaint as indicated above, the main grievance
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of the first respondent is with respect to the articles mentioned therein.
7. It is also relevant to note that as per Annexure A1 judgment
the first petitioner has already got divorce by invoking legal provisions
and the marriage between the first petitioner and first respondent has
already been dissolved and she has decided to have another family life
along with the second petitioner on the basis of the marriage
solemnised on 6/10/2003. It is after the said marriage, the first
respondent herein had preferred the Annexure A4 petition and also
Annexure A2 protest complaint. So the above facts itself is sufficient
to show that Annexure A2 protest complaint is only frivolous and
vexatious compliant, that too filed to harass the petitioners. It is also
pointed out earlier, in Annexure A2 compliant the essential ingredients
of sections 406, 420,120 B and 34 are not attracted as there is no
pleadings and allegations and therefore the magistrate ought not have
taken cognizance upon the Annexure A2 complaint, especially in
particular fact that the police had already referred the case which
registered on the basis of the petition filed by the first respondent/
complainant. Thus the continuance of Annexure A2 complaint and
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C.C.No. 1966/2005, will amount to abuse of process of the court.
8. In the result Annexure 2 compliant and C.C. No.1966/2005
instituted there on and all proceedings there to are quashed and
accordingly this Crl. M.C. is allowed and there is no order as to cost.
V.K. MOHANAN, JUDGE
scm