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Arun.G.Nair vs State Of Kerala on 22 October, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941

Crl.MC.No.6565 OF 2017

AGAINST THE ORDER/JUDGMENT IN CC 487/2017 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II, KANJIRAPPILLY

CRIME NO.240/2017 OF PONKUNNAM POLICE STATION, KOTTAYAM

PETITIONER/ACCUSED 1 TO 3:

1 ARUN.G.NAIR
AGED 31, S/O. KESAVAN GOPINATHAN NAIR,
UTHUMPARAYIL HOUSE, MURIKKUMPUZHA,
PALA P.O., KOTTAYAM DISTRICT.

2 ANU GOPINATHAN
AGED 34, W/O. SEBI VARGHESE,
VALLOORAN HOUSE, THIRUMUDIKKUNNU,
KORATTY P.O., THRISSUR DISTRICT.

3 SANTHAKUMARI
AGED 63, W/O. LATE GOPINATHAN NAIR,
UTHUMPARAYIL HOUSE, MURIKKUMPUZHA,
PALA P.O., KOTTAYAM DISTRICT.

BY ADVS.
SRI.C.C.THOMAS (SR.)
SRI.NIREESH MATHEW
SRI.N.P.PRAJEESH

RESPONDENTS/STATE DE FACTO COMPLAINANT:

1 STATE OF KERALA
(CRIME NO. 240/2017 OF PONKUNNAM POLICE STATION)
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI – 682 031.

2 SUSEELA DEVI
W/O. LATE MOHANDAS, DAS MAHAL,
KOPRAKKALAM, ELAMGALAM,
PONKUNNAM P.O., KOTTAYAM DISTRICT – 686 004.
Crl.MC.No.6565 OF 2017

2

BY ADV. SRI.C.S.AJITH PRAKASH
BY ADV. SRI.BIJITH S.KHAN
BY ADV. SRI.T.K.DEVARAJAN
BY ADV. SRI.A.TJOSE
BY ADV. SRI.PAUL C THOMAS
SRI.SANTHOSH PETER SR.PP

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.10.2019, THE COURT ON 22-10-2019 PASSED THE FOLLOWING:
Crl.MC.No.6565 OF 2017

3

O R D E R

Accused Nos. 1 to 3 in C.C.No.487/2017 of Judicial

First Class Magistrate Court II, Kanjirappilly arising

from Crime No.240/2017 of Ponkunnam Police Station for

offences punishable under Sections 406, 420, 498A,

294(b), 323 read with Section 34 IPC are the

petitioners herein.

2. According to the prosecution, the 1st accused

was working as a helper in an old age home at

Australia. Suppressing it and posing as an MBA decree

holder with degree in Hospital Administration, he

married one Monisha, the daughter of the de facto

complainant, on 01.09.2014. It was alleged that,

before marriage he had misrepresented that for

obtaining a visa to the wife, joint property in the

ownership of both persons was mandatory. An item of

property that stood in the name of the de facto

complainant was got assigned to Monisha and the 1 st

petitioner. Thereafter, 1st petitioner took Monisha to

Australia. While they were living together as husband
Crl.MC.No.6565 OF 2017

4

and wife, the 1st accused with the aid and support of

accused Nos.2 and 3, who are sister and mother of the

1st accused, harassed her both physically and mentally

in connection with demand for dowry. They demanded

more dowry. It was alleged that this drove Monisha to

commit suicide on 07.02.2017 at Australia. Later, a

complaint was laid by the de facto complainant/mother

alleging that Monisha was subjected to matrimonial

cruelty, which had led to her suicide and that the

accused have committed various offences. Crime was

registered and after investigation, final report was

laid against all the accused. Accused appeared before

the court below and are facing trial.

3. Accused challenges the proceeding invoking

Section 482 Cr.P.C. on various grounds. It was

contended that the incident occurred outside India and

that the 1st accused was an Australian citizen. No

previous sanction as contemplated under Section 188 of

the Code of criminal procedure was obtained and hence

the prosecution was bad. It was contended that the
Crl.MC.No.6565 OF 2017

5

ingredients under Sections 294(b), Section406 Section420 IPC were

not made out from the facts alleged. The ingredients

of offence under Section 498A were also not made out.

It was further contended that, as against accused Nos.2

and 3, there was absolutely no material to fasten any

criminal liability on them.

4. It is an admitted fact that the 1st accused

registered the marriage with the deceased Monisha on

01.09.2014. A formal ceremony of the marriage was also

held in the temple on the same day. Thereafter,

customary marriage was solemnized on 30.08.2015.

Couple left to Australia on 07.09.2015. She died by

hanging on 07.02.2017. A complaint was laid by the

mother on 17.02.2017 and a further detailed complaint

was submitted on 19.02.2017.

5. Assailing the prosecution, the learned Senior

counsel for the petitioners contended that the

prosecution was bad in the absence of sanction under

Section 118 of the Indian Penal Code. It was pointed

out that after the marriage, couple permanently resided
Crl.MC.No.6565 OF 2017

6

at Australia. The death occurred at Australia. Hence,

the cause of action in relation to the death did not

arise in India. Relying on the citizenship certificate

produced as Annexure 1, the learned Senior counsel

further contended that the 1st petitioner was an

Australian citizen and hence the prosecution will not

lie against him.

6. It is pertinent to note that the offence

alleged against the accused is not one under Section

306 IPC. The offences alleged are under Sections 406

Section420 IPC in relation to the alleged misrepresentation

made at the time of marriage, getting the property

assigned to the 1st accused along with Monisha and

thereafter misappropriating it. There is a further

allegation under Sectionsection 498A that the accused had

harassed the victim in connection with demand for dowry

on various dates in Kerala and thereafter, which

continued in Australia. Evidently, the starting point

of the offences is at the time of marriage much before

the parties left to Australia. It seems to be in the
Crl.MC.No.6565 OF 2017

7

nature of a continued offence, which were initially

committed in Kerala and continued thereafter. Annexure

1 shows that the first petitioner acquired citizenship

only on 11.09.2017, which was much after the death of

the victim. Evidently, the accused was an Australian

citizen during the relevant period. Hence, I find no

merit in the contention of the petitioners that the

prosecution is not sustainable as against them in the

absence of sanction under Section 188 of the Cr.P.C.

7. Regarding the allegation constituting offences

under Sections 406 Section420 IPC, the crux of the

allegation is that the 1st accused had misrepresented

that he was holding an MBA degree in Hospital

Administration. He informed that he is employed in a

hospital. It turned out that he was not an MBA

graduate and was working as a helper in an old age

home. He further falsely represented that for the

purpose of obtaining a visa, property in the joint name

of the husband and wife was required and on the basis

of the above misrepresentation, got the property
Crl.MC.No.6565 OF 2017

8

transferred to his name along with the wife. It was

not returned thereafter.

8. The learned Senior counsel for the accused

invited my attention to the copy of marriage

certificate produced as Annexure VIII and Annexure IX,

the copy of title deed in relation to the property that

was assigned jointly to the 1st accused and the wife.

In both the documents, the status of the 1st accused is

referred to as a male nurse. Hence, it is evident that

at that time of marriage, his original nature of work

was disclosed. Hence, it was contended that there is

no basis in the contention of the de facto complainant

that the accused misrepresented the facts. I feel that

there is considerable force in the submission of the

learned Senior counsel on that.

9. It is pertinent to note that the property was

assigned in the joint name of the husband and wife.

Even assuming that a false statement was made that the

property has to be assigned jointly in the name of the

husband and wife for obtaining a visa to the wife, it
Crl.MC.No.6565 OF 2017

9

cannot constitute an offence under Section 406 or under

Section 420 IPC. There is no specific averments in the

petition that the 1st accused had a mala fide intention

to cheat while making misrepresentation and to commit

the offence. In the absence of any such ingredients,

I feel that the offences under Sections 406 and Section420 IPC

are prima facie not attracted.

10. Regarding the ingredients of Section 498A,

the learned counsel for the de facto complainant

invited my attention to the complaint dated 17.02.2017

as well as the complaint dated 19.02.2017. In the

first complaint, it was alleged that the 1 st accused

used to physically and mentally harass Monisha. She

had conveyed it to the de facto complainant. It was

also asserted by her that few days prior to the death

of Monisha, the 1st accused had demanded ₹15,00,000/-.

It was further stated that one day, the victim called

the de facto complainant and had cried, stating that

the 1st accused had physically harassed her. The de

facto complainant has a further allegation that the 1 st
Crl.MC.No.6565 OF 2017

10

accused had spread rumours that she was mentally sick.

According to the petitioners, on the date of death, the

victim had called her mother and found her to be happy.

In the second complaint, the earlier allegations were

reiterated. There is a further averment that the

accused had stated that the victim may go and die. It

was further stated that the 1 st accused had demanded

₹3,00,000/- when they came during onam holidays. There

is a specific allegation that the death was due to

physical and mental harassment committed by the 1st

accused along with accused Nos.2 and 3.

11. CW1 mother has given a statement touching upon

the various allegations. The Investigating Officer

has questioned CW2 to CW11. It emerges that CW1 has a

direct information which is supported to a limited

extent by the version of CW2 to CW5, who have limited

role regarding the allegation. A perusal of the above

materials on record indicate that CW1, both in her

statement as well as in the complaint, had

specifically referred to the few incidents of
Crl.MC.No.6565 OF 2017

11

harassment. The complaint was laid immediately after

the death was reported. Hence, I feel that there was

sufficient materials to prosecute the offence under

Section 498A, which has definitely to stand the test of

trial. I do not feel that quashing of the proceedings

under Section 498A is warranted at least against the 1st

accused.

12. It is evident that there is no serious

allegation against accused Nos.2 and 3. CW1 in her

version had raised only vague allegations against

accused Nos.2 and 3. No such allegations are seen

raised in the complaint. Even the allegations made

against accused Nos.2 and 3 are only general in nature.

Having considered this, I am satisfied that sufficient

factual grounds for ordering trial of accused Nos.2 and

3 are not made out. Hence, the prosecution as against

them is liable to be quashed.

13. In the light of the above facts, I find that

the only materials are available in relation to the

offences under Sections 294(b), Section323, Section498A as against
Crl.MC.No.6565 OF 2017

12

the 1st accused. The ingredients under Sections 406,

420 and 498A are not made out against accused Nos.2 and

3. Consequently, I am inclined to quash the entire

proceedings as against accused Nos.2 and 3 and also the

proceedings against the 1st accused, for offences under

Sections 406 Section420 IPC.

In the result, Crl.M.C. is allowed in part. The

prosecution as against accused Nos.2 and 3 stands

quashed. The prosecution against the first accused in

relation to offences under Sections 406 and Section420 IPC is

quashed. Prosecution shall proceed against the 1st

accused for offences punishable under Sections 294(b),

Section323 and Section498A of IPC.

Sd/-

SUNIL THOMAS, JUDGE

Pn
Crl.MC.No.6565 OF 2017

13

APPENDIX

PETITIONER’S/S EXHIBITS:

ANNEXURE I TRUE COPY OF THE CERTIFICATE OF AUSTRALIAN
CITIZENSHIP ACQUIRED BY THE FIRST PETITIONER
ISSUED BY THE MINISTER FOR IMMIGRATION AND
BORDER PROTECTION OF THE COMMONWEALTH OF
AUSTRALIA DATED 11.09.2017.

ANNEXURE II TRUE COPY OF THE CERTIFICATE ISSUED BY THE
MANAGER, ARCARE CARNEGIE DATED 07.03.2017.

ANNEXURE III TRUE COPY OF STATEMENT FILED BY THE
INVESTIGATOR MATT ANDERSON INTO THE UNNATURAL
DEATH OF MONISHA MOHANDAS, WIFE OF THE FIRST
PETITIONER DATED 20.06.2017.

ANNEXURE IV TRUE COPY OF CORONIAL INVESTIGATION BRIEF
SUBMITTED TO THE CORONERS COURT OF VICTORIA
AND THE LETTER SENT BY THE CORONERS COURT OF
VICTORIA TO THE 1ST PETITIONER DATED
18.08.2017.

ANNEXURE V TRUE COPY OF THE COMPLAINT FILED BY THE 2ND
RESPONDENT DEFACTO COMPLAINANT BEFORE THE
S.P. OF POLICE, KOTTAYAM DATED 17.02.2017.

ANNEXURE VI TRUE COPY OF THE COMPLAINT DATED 19.02.2017
SUBMITTED BEFORE THE SUPERINTENDENT OF
POLICE, KOTTAYAM BY THE 2ND RESPONDENT.

ANNEXURE VII THE CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO. 240/17 OF PONKUNNAM POLICE STATION
FILED BEFORE THE JFCM COURT-II, KANJIRAPPILLY
DATED 14.06.2017.

ANNEXURE VIII TRUE COPY OF THE CERTIFICATE OF MARRIAGE
ISSUED BY THE PALA MUNICIPALITY DATED
04.09.2014.

ANNEXURE IX TRUE COPY OF THE SALE DEED EXECUTED BY THE
DEFACTO COMPLAINANT IN FAVOUR OF THE FIRST
PETITIONER AND HIS WIFE MONISHA DATED
17.09.2014.

Crl.MC.No.6565 OF 2017

14

RESPONDENTS’ EXHIBITS

ANNEXURE R2(A) A TRUE COPY OF THE FINAL REPORT IN CRIME
240/2017 DATED 20.02.2017 OF KANJIRAPPILLY
SHO.

ANNEXURE R2(B) A COPY OF THE E-MAIL MESSAGE DATED 15TH
FEBRUARY 2017 FROM HARIKRISHNAN TO GRAHAM
ASTON (VICTORIA POLICE CHIEF COMMISSIONER,
AUSTRALIA)

ANNEXURE R2(C) A COPY OF THE E-MAIL MESSAGE DATED 22ND
FEBRUARY 2017 FROM THE RESPONDENT’S NEPHEW
HARI KRISHNAN, CW4 ADDRESSED TO MATT ANDERSON
(LEAD CONSTABLE CLAYTON POLICE STATION)

ANNEXURE R2(D) A TRUE COPY OF THE BANK STATEMENT OF THE 2ND
RESPONDENT FOR THE PERIOD FROM 16.01.2016 TO
07.03.2018.

ANNEXURE R2(E) A TRUE COPY OF THE CERTIFICATE ISSUED BY THE
SOUTH INDIAN BANK DATED 07.03.2018 TO THE 2ND
RESPONDENT.

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