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Asking money to start business is not Dowry Demand

Andhra High Court

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

CRIMINAL PETITION No. 13533 of 2010

dated:01-07-2013

1.Suresh Kumar Jain S/o Late Ghambdilal Jain, Aged 41 years, Occ: Business, R/o 5-456, Tilak Nagar, 2nd Cross, Shimoga Dist., Karnataka…. Petitioner

1.State of A.P., rep. by the Public Prosecutor,High Court of A.P., High Court Building,Hyderabad and another … Respondents

Counsel for the Petitioner: Sri Mahesh Raje, Advocate.
Counsel for the Respondent No.1:Public Prosecutor
Counsel for the Respondent No.2: Sri Govardhan Venu, Advocate

Head Note:

Cases referred:
1. 2009 (4) JCC 3021
2. (2012) 10 SCC 741
3. I (2013) CCR 150 (SC)

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

CRIMINAL PETITION No. 13533 of 2010

ORDER:
1. This Criminal Petition is filed by the petitioner/accused No.4, under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking quashing of the proceedings in C.C.No.200 of 2007 on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad, which were initiated against him and three others for the offences punishable under Sections 498-A and 325 of IPC against A1, Section 498-A of IPC against A2 and A4 and Sections 4 and 6 of Dowry Prohibition Act against A1, A2 and A4.

2. The allegations in the charge sheet are as under:

The marriage between the respondent and the accused No.1 took place on 14.10.1989 in Bangalore and later at Tirumala in the year 1990. The love marriage at Bangalore was ratified by the parents at Tirumala. Out of wedlock, they were blessed with two children, who were examined as LWs.3 and 4. At the time of marriage, the father of LW.1 is alleged to have given 100 tulas of gold, Rs.5,00,000/- to A1 and 1/3rd share in the property to LW.1. Both of them were doctors and stayed in Bangalore till 1993. After the birth of LW.3 in the year 1993, both of them shifted to Hyderabad but A1 was forcing her to come over to Bangalore to start a business. It is alleged that till 1997, A1 lost about 40 to 50 lakhs in his business and was pressurizing the respondent to get the said amount from her parents to recoup the business losses. It is alleged that the in-laws of the respondent were staying close to Bangalore and used to visit the said place regularly and make illegal demands. The second child was born in the year 1995. In the year 1998, A1 and the respondent went to Kerala to set up a business but A1 was idle most of the time. So she managed the family from her salary and with the financial support of her father. The amount sent from Hyderabad by her parents and the jewellery, which was with LW.1, was misappropriated by A1 for his personal use. Despite these obstacles, the respondent completed her medical course of PG and DNB, finally shifted herself to Hyderabad and was living with the support of her father, who was paying Rs.15,000/- per month. The allegations in the charge sheet further disclose that A2, who was staying in the house of LW.1, was misbehaving with LW.1 by touching her at objectionable places. A1 never cared about the attitude of his father in spite of it being brought to his notice. The harassment continued in the hands of A1 to A3 but she bore the same as two children were growing up. In the year 2002, A4 took Rs.5 lakhs from her father to start a business. The father of LW.1, being a doctor, also helped A1 by securing a PG seat in Kamineni and CDR hospitals but he showed no interest in studies and left to Nirmal. The respondent herein joined her children in a hostel and went to Coimbatore to do her fellowship. The rest of the complaint also deals with the nature and manner of harassment in the hands of A1, the threatening calls received by her on phone demanding shares in the property and threat of marrying another lady. Since 2006, A1 stopped visiting the house of LW.1 though he was staying in a hostel opposite to her house. On 07.01.2006 when the respondent went to the hostel with a request to join her atleast for the sake of children, he is alleged to have manhandled her, which resulted in a fracture of nose. Basing on these allegations, a report came to be lodged against A1 to A7 and the police after deleting the names of A3, A5 to A9 from the array of the accused filed the charge sheet only against A1, A2 and A4.

3. Heard both sides.

4. The learned counsel for the petitioner mainly contends that even accepting the allegations in the charge sheet at their face value, no offence much less an offence under Section 498-A of IPC is made out against the petitioner, who is the brother of A1 and residing at Shimoga in Karnataka State. He further submits that in the absence of any specific allegation in the charge sheet, continuation of proceedings against him would be an abuse of process of law. According to him, the petitioner is alleged to have taken Rs.5 lakhs from the father of the respondent for starting a business, which by no stretch of imagination would amount to an offence under Section 498-A of IPC.

5. On the other hand, the learned counsel for the respondent No.2 would submit that the statements of witnesses recorded under Section 161 of Cr.P.C. attribute specific role to the petitioner in demanding Rs.5 lakhs to start his business and the said amount was paid with a hope that the family members of accused will not harass the respondent in future. The said allegation constitutes an offence under Section 498-A of IPC and hence, it cannot be said that continuation of proceedings would be an abuse of process of law. He, thus, seeks dismissal of the Criminal Petition.

6. In Neelu Chopra & anr. v. Bharti1, the Apex Court was dealing with a case where the parents-in-law of the respondent were shown as accused for an offence punishable under Sections 406 and 498-A read with Section 114 of IPC. The Apex Court held that in order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. The Apex Court found that the allegations in the said complaint were vague, as it does not show as to which accused has committed what offence and what is the exact role played by them in the commission of crime. Under these circumstances, the Apex Court found that continuation of proceedings against the in-laws would be an abuse of process of law.

7. In Geeta Mehrotra and another Vs., State of Uttar Pradesh and another2 the Apex Court has categorically held that “casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify in taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute”. The Apex Court also observed that if the FIR as it stands does not disclose specific allegation against the accused, especially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the Court to take cognizance of the case against the relatives of the main accused who are prima facie not found to have indulged in the torture of the complainant”. The said view was reiterated by the Apex Court in Chandralekha v. State of Rajasthan3.

8. Before proceeding further, it would be relevant to refer to Section 498-A of IPC, which is as under:

498-A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation:- For the purposes of this section, “cruelty” means:-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

9. A reading of the charge sheet along with the statements of witnesses recorded under Section 161 of Cr.P.C. would indicate that the petitioner is alleged to have taken Rs.5 lakhs from the father of LW.1 to start a business. The statement of LW.1 recorded during the course of investigation would show that the said amount was paid by her father to A4 in the year 2002 to start a business near Shimoga in Karnataka. Her father is alleged to have paid the said amount for the sake of her family and with a condition that the accused should not harass the respondent in future. Admittedly, the petitioner never stayed with A1 and his family at any point of time. The allegations in the charge sheet and the cause title clearly disclose that he was a resident of Shimoga in Karnataka. It is not even alleged that he used to visit his brother when both of them were staying either at Bangalore or in Kerala or in Hyderabad. No specific allegation of harassment is attributed to the petitioner except stating that an amount of Rs.5 lakhs was paid by the father of the respondent for starting a business with a condition that the other family members of the petitioner would not harass the respondent. The question is whether the said act of A4 would constitute an offence punishable under Section 498-A of IPC? The Section as extracted above would show that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished for the offence under Section 498-A of IPC. The word ‘cruelty’ as defined in the explanation to Section 498-A of IPC, contains two clauses, viz.

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. The main thrust in clause (b) appears to be that the harassment on a woman should be with a view to coerce her or any person related to her to meet such demand. In the present case, there is no averment in the charge sheet to show that the petitioner harassed the respondent. It is not even alleged that the petitioner demanded the father of the respondent to pay Rs.5 lakhs for meeting a demand made against the respondent. It is only alleged in the charge sheet that amount is being paid to the petitioner by the father of the respondent for starting a business at Shimoga on a condition that the other family members of the petitioner should not harass the respondent in future. That by itself would not mean that the petitioner was harassing the respondent. The said amount was paid on a condition that family members should not harass the respondent in future. The said act of the petitioner in taking money from the father of the respondent for starting a business would not fall within the meaning of cruelty as defined in Section 498-A IPC, as there is no averment of any kind of harassment in the hands of the petitioner.

10. Accordingly, the Criminal Petition is allowed by quashing the proceedings in C.C.No.200 of 2007 on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad against the petitioner/A4. The miscellaneous petitions, if any pending shall stand closed.

C. PRAVEEN KUMAR, J
Date: 01-07-2013

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