Kalawati Devi v. State Of Bihar & Ors

Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 3 family relationship, the complainant trusted the statement and assurance of the petitioner and gave Rs.4,00,000/- vide cheque no.994080 (State Bank of India, Bailey Road, Patna) on 19.8.2011. Again the complainant gave Rs.4,00,000/- vide cheque no.994081 on 4.10.2011. The petitioner again approached to the complainant for Rs.2,00,000/- but he paid Rs.69,000/- vide cheque no.994082 dated

8.11.2011 with the assurance that the aforesaid money would be returned within six months. The marriage was solemnized in between son of the petitioner and niece of opposite party no.2. As has been stated that no money was returned to opposite party no.2, he approached to the petitioner on

27.5.2012 and demanded his money. Thereafter she started hurling abuses, assaulted and threatened him, if he would come again she lodged case against him and he would remain in jail custody rest of his life and bluntly said no money would be returned to him.

#4. Learned counsel for the petitioner submits that it is completely a malicious prosecution. There is no dispute that both belonged to the same caste, Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 4 developed a good relationship and they had settled the marriage in between the son of the petitioner and niece of opposite party no.2. It has been submitted that the first installment of Rs.4,00,000/- was paid on

19.8.2011, another was paid of the same amount on

4.10.2011 and Rs.69,000/- was paid on 8.11.2011. It has further been submitted that engagement of marriage was solemnized on 11.8.2011 and marriage was held on 4.12.2011 and further substantiated her claim that the aforesaid amount was paid to the petitioner for the purposes of expenses of marriage and ornaments, the present complaint case has been filed on 4.6.2012 when rough relationship developed between the niece of the complainant and son of the petitioner. It has further been submitted in paragraph 5 of the complaint petition that as the brother was suffering from illness and was unable to move and as the aforesaid amount was paid by complainant for the marriage expenses. It has further been submitted that at the time of granting bail the petitioner had no alternative but to succumb to the situation and agreed to return the amount as Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 5 aforesaid. It has further been submitted that an application has been filed before the court below for modification of the order of the anticipatory bail, the amount which was asked to pay in installment to opposite party no.2, should be kept in the custody of the court and the said amount will be released after the disposal of the criminal case. So much so he has further submitted that money was paid under the wrong impression to opposite party no.2 and made a prayer that complainant should also be asked to deposit the amount in safe custody of the court. It has further been submitted that no offence is made out against the petitioner as it is basically a money claim, so much so there is malafide reason behind for filing present case as the true facts are, the opposite party no.2 paid the amount for marriage expenses and there is no outstanding against her. On account of rough matrimonial relationship with niece of opposite party no.2 has filed the present application to take revenge.

#5. On the point of charge under Section 420 of the Indian Penal Code learned counsel for the petitioner has relied on the judgment in the case of Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 6 Hari Prasad Chamaria Vs. Bishun Kumar Surekha and others reported in 1974 BBCJ 41 SC. The criminal case is an abuse of process of court as the criminal case has been lodged out of personal vengeance and no offence is made out as statements/allegation does constitute civil wrong no criminal offence is made out, in support of his submission relied on the judgment State of Haryana and others Vs. Bhajan Lal and others, reported in A.I.R. 1992 SC 604 and Inder Mohan Goswami and another Vs. State of Uttaranchal and others, reported in (2007) 12 SCC 1. It has further been submitted that the court has wrongly taken cognizance under the aforesaid sections and it requires interference by this Court.

#6. In reply, it has been submitted that there is no allegation of breach of contract nor the allegation of breach of agreement rather is direct allegation of taking money for the particular reason with the promise to return the same. It has further been submitted father of niece of complainant is a Government servant and was Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 7 capable to pay the amount for having solemnized the marriage of his niece. It has further been submitted that in the complaint petition lodged under Section 498A of the Indian Penal Code allegation has been made of dowry of Rs.3,0000/-. It has been submitted that there is specific case of opposite party no.2 that the niece of opposite party no.2 was treated badly on account of a Maruti car as well as the pressure was mounted on her that opposite party no.2 disowned Rs.8, 79,000 which is subject matter of another criminal case.

#7. Having considered the rival contentions of learned counsel for the parties the point has been raised that no case of cheating is made out against the petitioner and very much relied on the judgment in the case of Hari Prasad Chamaria (supra) where the Hon’ble Supreme Court in its peculiar facts held that no case of cheating is made out. The fact of that case, there was agreement between the complainant and accused persons that they would start a transport business jointly and an amount of Rs.35,000 was invested. It was agreed between the parties that the Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 8 transport business will be run in the proprietorship of the complainant but when he went to Calcutta he found the fact otherwise. The reply was given that when the Transport Company would be incorporated the complainant would be shown as proprietor of the firm and also given assurance to render accounts. When the accused persons of that case did not settle the account the complainant asked to refund of money which accused failed to comply. The question was raised by the accused persons of the case that no case is made out under Section 420 of the Indian Penal Code as there was nothing in complaint petition to show that accused persons had taken Rs.35,000/- with dishonest or fraudulent intention or deceived him. There was no material to indicate that accused of that case induced the appellant to pay the aforesaid amount. The Hon’ble Supreme Court has held that the fact that accused (petitioner of that case) have subsequently did not stand to his commitment that he would show the complainant to be the proprietor of the Transport Company and also failed to render the accounts does create civil liability as Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 9 facts would not be sufficient material to constitute the offence under section 420 of the Indian Penal Code. In that case, accused persons failed to show the complainant as proprietor of firm and failure of rendition of account.

#8. In the present case there is no business relationship between the two rather there is allegation of demand of money for a particular purpose with promise to return the same and in the event of failure to return of money the present case has been lodged. The fact of that case is quite different to the present case and is not applicable to the present case.

#9. In this case on reading of the complaint petition it cannot be said that there is no allegation of inducement of paying the aforesaid money. It is not in dispute that the aforesaid money was paid but claim has been made that the said amount was paid on account of marriage of niece of opposite party no.2, whether it was the payment on account of marriage of niece of opposite party no.2 is a matter of fact cannot be adjudicated at this stage. In view of the fact that in the complaint petition of Section 498A of Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 10 the Indian Penal Code there is allegation of payment of Rs.3,00,000/- and has stated therein that the petitioner exerted pressure to the niece of opposite party no.2 to persuade opposite party no.2 to forgo the aforesaid amount as was given to her. These are matters of fact, it can only be adjudicated at the trial stage. It is very difficult for this Court to come to a positive finding the money was given to opposite party no.2 on account of marriage of his niece. So far the point of malafide is concerned it is mere chance that the marriage was solemnized and both had developed rough relationship but the undisputed fact is that the aforesaid amount was paid before the marriage. The facts are not clear to arrive at positive finding of malicious prosecution.

#10. In this view of the matter, attending facts and circumstances are not so clear to give only and one inference that money was paid on account of marriage of niece of opposite party no.2. In fact father of the niece of opposite party no.2 was himself a Government servant has not been denied by the petitioner. The Government servant working in the Patna High Court Cr.Misc. No.38578 of 2013 (4) dt.30-09-2013 11 State of Bihar cannot be said of not having sufficient money to solemnize the marriage of his daughter. In the present situation, this Court is not inclined to interfere with the impugned order. However, the petitioner will be at liberty to raise all points before the court below at the appropriate stage. Any observation given hereinabove, is confined to the present proceeding, will not have effect at the subsequent stage.

#11. With the aforesaid observation this application is dismissed. . Vinay/- (Shivaji Pandey, J)