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Manish Kalra & Ors vs State & Anr on 12 October, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 11th January, 2018
Decided on: 12th October, 2018
+ W.P.(CRL) 431/2016
MANISH KALRA ORS ….. Petitioners
Represented by: Mr. Saurabh Tiwari, Advocate.
versus
STATE ANR ….. Respondents

Represented by: Ms. Purnima Malik, Advocate for Mr.
Avi Singh, Additional Standing
Counsel for the State/Respondent
No.1 with SI Ram Singh, PS C.R.

Park.

Ms. Shilpika Kalra/ respondent No.2.

CORAM:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition, the petitioners seek quashing of FIR
No.390/2014 under Sections 498A/406 IPC registered at PS Chitranjan Park,
Delhi on the complaint of respondent No.2.

2. Learned counsel for the petitioners contends that the FIR got
registered by respondent No.2 at Delhi is a clear abuse of the process of law.
Even accepting the averments in the complaint, no case for cruelty as
defined under Section 498A IPC is made out. The FIR discloses no
allegations against the petitioners especially petitioners No.3 and 4 except
for casual references of their names. Petitioners No.2 to 4 never resided
with the respondent No.2 at the matrimonial home. The matrimonial home
of the petitioner No.1 and respondent No.2 was at Mumbai whereas
petitioners No.3 and 4 have been residents of Singapore from 2008-2014
and Hong Kong since 2014. The pleas taken by the petitioner for quashing

W.P.(CRL) 431/2016 Page 1 of 9
of FIR are not in the nature of defence nor are disputed questions of facts.
Since it is the admitted case of the respondent No.2 that petitioner No.1 and
respondent No2 have not resided together since the year 2009, thus the
allegations are at least 5 years prior to the registration of the FIR. FIR has
been got registered after 5-6 years of the date of allegations and thus
cognizance on a charge-sheet filed on such allegations would be barred by
limitation as per Section 468 of the Code of Criminal Procedure. Reliance
is placed on the decisions reported as (2008) 11 SCC 520 M. Saravana
Porselvi Vs. A.R. Chandrashekhar Ors.; (2013) 14 SCC 374
Chandralekha Ors. Vs. State of Rajasthan Ors. and (2014) 13 SCC 567
Swapnil Ors. Vs. State of Madhya Pradesh. Divorce proceedings are
pending before the Mumbai Court filed by the petitioner No.1 in June 2009
and till date respondent No.2 has not claimed any istridhan in the said
proceedings at Mumbai.

3. Though no affidavit in response to the petition has been filed by the
respondent No.2, she has filed an affidavit disclosing that the three
petitioners did not appear in the Mediation proceedings referred to by this
Court in the present petition, though the respondent No.2 went all the way
from Delhi to Mumbai.

4. The allegations of the respondent No.2 in the above-noted FIR are as
under:

“I Shilpika Kalra, on my complaint appeared in CAW Cell on
15.9.2014 at 11.30 a.m. My in-laws have not appeared in spite
of being informed. I was married to Manish Kalra under Hindu
Rights was arranged on 28.7.2007 in Delhi Cantt. On the
wedding my family widow mother of Late Brig S II Grover
gave cash gift as per their standard standard of my in-
laws. After marriage I resided in J-1902 CR Park where my

W.P.(CRL) 431/2016 Page 2 of 9
mother-in-law demanded my salary mentioned she received
all white goods for her marriage from her brother when she got
married. My mother should set up my house. They also
insulted me that their elder son was married Taj Hotels my
mother did not do the needful. All expensive Omega watches,
designer gifts cash gifted were not appreciated. After the
marriage I took a transfer from DNA Newspaper Delhi
relocated to Mumbai to join my husband. He deserted me on
June 10, 2009 filed a frivolous petition for divorce. My
Stridhan is with my mother-in-law Kamlesh Kalra, Avinash
Kalra, Suman Kalra. My mother-in-law resides is in the
possession of my Stridhan. Mrs. Kamlesh Kalra (all
responsible to influence my husband). Kindly also ask Mrs.
Kamlesh Kalra to return my Stridhan. She is instrumental in
influencing my husband to file a divorce petition. Next date
19.0.2014 at 11.00 AM. Sd/- Shilpika Kalra, J-1902, C.R. Park,
New Delhi. 9920389955.”

5. The case of the petitioner is that Avinash Kalra and Suman Kalra have
not been residing in Bombay and thus have no role to play. After
investigation charge-sheet has been filed by the State keeping petitioners
No.1 and 2 in column No.11 and petitioners No.3 and 4 in column No.12.
Petitioners No.3 and 4 who were kept in column No.12 have not been
summoned by the learned Trial Court. Hence, the present petition seeking
quashing of FIR and the proceedings pursuant thereto is rendered
infructuous. Needless to note that in case if at any stage of trial petitioners
No.3 and 4 are summoned the same will be a separate cause of action for
which they can avail remedies as available in law.

6. In M. Saravana Porselvi (supra) relied upon by learned counsel for
the petitioner the parties were married on 1st December, 1993 and were
living separately since 1996. They entered into an agreement for divorce as
per custom around 24th July, 1996 which was registered and the complainant

W.P.(CRL) 431/2016 Page 3 of 9
therein received the permanent alimony amount which was duly
acknowledged. The complaint was filed in May 2006 on the premise that the
first respondent married for the second time. It is on these facts the Court
said that after more than 10 years of separation no case under Section 498A
can be said to be made out and that too at such a distant point of time,
particularly in view of the bar of limitation as contained in Section 468
Cr.P.C.

7. In (1993) 3 SCC 4 Vanka Radhamanohari Vs. Vanka Venkata Reddy
the Supreme Court dealing with the bar of Section 468 Cr.P.C.in relation to
the matrimonial offences held as under:

“7. It is true that the object of introducing Section 468 was to
put a bar of limitation on prosecutions and to prevent the
parties from filing cases after a long time, as it was thought
proper that after a long lapse of time, launching of prosecution
may be vexatious, because by that time even the evidence may
disappear. This aspect has been mentioned in the statement
and object, for introducing a period of limitation, as well as by
this Court in the case of State of Punjab v. Sarwan
Singh [(1981) 3 SCC 34 : 1981 SCC (Cri) 625 : AIR 1981 SC
1054]. But, that consideration cannot be extended to
matrimonial offences, where the allegations are of cruelty,
torture and assault by the husband or other members of the
family to the complainant. It is a matter of common experience
that victim is subjected to such cruelty repeatedly and it is
more or less like a continuing offence. It is only as a last resort
that a wife openly comes before a court to unfold and relate
the day-to-day torture and cruelty faced by her, inside the
house, which many of such victims do not like to be made
public. As such, courts while considering the question of
limitation for an offence under Section 498-A i.e. subjecting a
woman to cruelty by her husband or the relative of her
husband, should judge that question, in the light of Section 473
of the Code, which requires the Court, not only to examine as

W.P.(CRL) 431/2016 Page 4 of 9
to whether the delay has been properly explained, but as to
whether “it is necessary to do so in the interests of justice”.”

8. In the decision reported as 2003 (68) DRJ 437 Asha Ahuja Vs. Rajesh
Ahuja Ors. this Court dealing with the accused being discharged on the
ground of limitation under Section 468 Cr.P.C. read with Section 473
Cr.P.C. held that Section 473 Cr.P.C. enjoins a duty upon the Court to
examine not only as to whether delay in filing of the FIR is explained or not
but also whether it is the requirement of justice to condone or ignore the
delay and in matrimonial cases if the bar of Section 468 Cr.P.C. is pleaded
the Court is required to apply its mind on the question as to whether it is
necessary to condone the delay in the interest of justice. In the said case
this Court considered the following reasons in the complaint to condone the
delay as under:

“6. A perusal of the complaint filed by the petitioner in the
present case shows that soon after her marriage, the
respondents had started taunting and harassing her for
bringing insufficient dowry and warned her of serious
consequences if more articles like refrigerator, washing
machine, scooter etc. were not brought. She was humiliated,
abused and tortured by them and was literally treated as a
maid servant. She was given beatings also. She lost her health
and in the meanwhile, became pregnant but before her
delivery, she was forced to leave her matrimonial home. Her
husband changed his religion even with a view to re-marry but
thereafter, was made to re-convert and become a Hindu. The
petitioner came back to her matrimonial home in March, 1987
but after a few weeks again, her harassment for bringing more
dowry articles commenced. In August, 1991, she was again
thrown out of her matrimonial home along with her children
and thereafter, continuous efforts were made to persuade her
husband and in-laws to take her back along with the children
but the respondents kept on dilly-dallying. Her husband filed a

W.P.(CRL) 431/2016 Page 5 of 9
suit for divorce as well as custody of children and thereafter
alone the complainant-petitioner felt compelled to initiate
present proceedings against her husband and family members.
Considering the circumstances under which the complainant-
petitioner had been put and her constant desire to go back to
her matrimonial home, it was a fit case in which the Courts
below ought to have condoned/ignored the delay in the filing
of the complaint under Section 498-A IPC.”

9. Further, Supreme Court in (1999) 4 SCC 690 Arun Vyas Vs. Anita
Vyas held that the essence of the offence in Section 498-A is cruelty as
defined in the explanation appended to the said section and is a continuing
offence and on each occasion on which the respondent was subjected to
cruelty a new starting point of limitation starts. It was held that :

“13. The essence of the offence in Section 498-A is cruelty as
defined in the explanation appended to that section. It is a
continuing offence and on each occasion on which the
respondent was subjected to cruelty, she would have a new
starting point of limitation. The last act of cruelty was
committed against the respondent, within the meaning of the
explanation, on 13-10-1988 when, on the allegation made by
the respondent in the complaint to the Additional Chief
Judicial Magistrate, she was forced to leave the matrimonial
home. Having regard to the provisions of Sections 469 and
472 the period of limitation commenced for the offences under
Sections 406 and 498-A from 13-10-1988 and ended on 12-10-
1991. But the charge-sheet was filed on 22-12-1995, therefore,
it was clearly barred by limitation under Section 468(2)(c)
CrPC.”

10. Further dealing with Section 406 IPC this court in 2010 SCC OnLine
Del 4384 S.K.Bhalla Ors. Vs. State of NCT of Delhi Anr. held that
Section 406 being a continuing offence as defined under Section 472 IPC
the bar under Section 468 Cr.P.C. was not applicable. It was held that :

W.P.(CRL) 431/2016 Page 6 of 9

“14. No doubt Section 468 Cr.P.C. provides limitation of three
years for taking cognizance of the offences which are
punishable for the maximum imprisonment of three years. This
provision, however is of no help to the petitioners for the
reason that as per the allegations in the FIR, the petitioners
have also committed an offence punishable under Section 406
IPC by misappropriating the ‘Stree-dhan’ of the complainant
entrusted to them and not returning it to her despite of
repeated demands. Section 472 Cr.P.C. is relevant in this case,
which reads thus:

“472. Continuing offence.–In the case of a continuing
offence, a fresh period of limitation shall begin to run at
every moment of the time during which the offence
continues”

15. Perusal of the FIR would show that the complainant has
made specific allegation that despite her demands, the
petitioners have failed to return her ‘Stree-dhan’ and
jewellery. She has not specified the date on which the demand
was made. Section 406 of IPC deals with the offence of
criminal misappropriation and the aforesaid offence is
complete when the entrusted property is not returned by the
persons who were entrusted with the property on demand by
the rightful owner. Thus, though the FIR discloses the
commission of offence under Section 406 IPC, it does not
specify on which date the demand for return of ‘Stree-
dhan’ was made as such it is not clear when the offence of
criminal misappropriation was complete. This obviously is a
subject matter of investigation and evidence pertaining to the
same is to be seen in the charge sheet. Otherwise also, even if
it is presumed that demand for return of ‘Stree-dhan’ was
made in November, 1992, then also, till the ‘Stree-dhan’ of the
complainant is returned to her, the misappropriation by the
petitioners continues. Thus, fresh period of limitation shall
begin to run at every moment of the time during which the
offence continues. Therefore, prima facie, it cannot be said
that the FIR pertaining to the offence punishable under Section
406 IPC is time barred. It is well settled that delay in filing of
FIR by itself cannot be a ground for discharge or acquittal of

W.P.(CRL) 431/2016 Page 7 of 9
the accused. There can be many reasons for delay in filing of
the complaint. It would not be appropriate to speculate on this
aspect. If the complainant/prosecution is able to explain the
delay, then the court would be well within its rights to act on
the evidence led during trial and that explanation, if any, can
come only during trial. Thus, under the circumstances, I do not
find any merit in the contention of learned counsel for the
petitioners that the offence complained of in the FIR is barred
by limitation in view of Section 468 Cr.P.C.”

11. As noted above, the allegations of the complainant are of harassment
by the petitioners No.1 and 2 i.e. the husband and the mother-in-law.
Admittedly the respondent No.2 and petitioner No.1 are living separately
since June 10, 2009 and there is no material to show that due to re-
conciliatory measures or for what reason the respondent No.2 failed to file
the complaint on which the afore-noted FIR was registered till 28th January,
2013, i.e. beyond the period of limitation of three years. Thus there being
no justification for the delay in filing the complaint beyond the period of
limitation and there being no allegation that the physical and mental
harassment continued against respondent No.2 beyond June 10, 2009,
petitioners No.1 and 2 are not liable to be proceeded under Section 498-A
IPC. However, as noted above, Section 406 IPC is a continuing offence and
every day of non-return of the istridhan articles would give fresh cause of
action. Admittedly, after the registration of the FIR petitioner No.1 sought
to return certain istridhan articles thereby fortifying the claim of breach of
trust. However, one of the necessary ingredients for offence punishable
under Section 406 IPC is entrustment and the complainant alleges
entrustment of istridhan articles to petitioner No.2 and not petitioner No.1.

W.P.(CRL) 431/2016 Page 8 of 9

12. Thus, this Court finds no ground to quash the FIR in question against
petitioner No.2 for offence punishable under Section 406 IPC or the
proceedings thereto.

13. Petition is disposed of accordingly.

(MUKTA GUPTA)
JUDGE
OCTOBER 12, 2018
‘ga/rk’

W.P.(CRL) 431/2016 Page 9 of 9

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