Smt. Nilima Sinha v. The State of Bihar & Ors.

.... .... Opposite Parties. ====================================================== Appearance : For the Petitioners : Mr. Md. Nadim Seraj, Advocate. Mr. Satish Kumar Sinha, Advocate. For the Opposite Parties : Mr. Birendra Singh, Advocate. For the State : Mr. Amitesh Kumar, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 7 22-04-2013 Heard learned counsel for the petitioners, learned counsel for the opposite party as well as learned counsel for the State. This is an application for quashing the order dated

29.02.2012, passed by the Sub-Divisional Judicial Magistrate, Patna, in Complaint Case No. 3065 of 2011 by which cognizance has been taken for offence under Section 498 A and Section 4 of the Dowry Prohibition Act. The prosecution case as alleged in the complaint that both the father of the complainant and accused persons known to each other. The petitioner nos.1 and 2 made a request to the father of the complainant that they requires Rs. 25,00,000/- (Twenty five lakhs) for purchase of a new flat. Thereafter, the father of the Patna High Court Cr.Misc. No.32014 of 2012 (7) dt.22-04-2013 complainant paid Rs. 7,00,000/- and subsequently he paid six cheques each of Rs. 3,00,000/-. During this period a proposal was made by the accused persons that the son of the petitioner no. 1 and 2 shall join the post of Deputy Field Officer and the father of complainant may marry his daughter with the son of the petitioner no. 1 and 2. Thereafter, marriage was solemnised of the complainant with the son of petitioner nos. 1 and 2. It is further alleged that at the time of marriage the father of the complainant was given Rs. 4,50,000/- in cash for purchase of a car even articles worth Rs. 5,00,000/- to the accused family. After marriage, the complainant was brought to her Naihar. Thereafter she was subjecting cruelty and abusing by her father-in-law, mother-in-law , her husband and Nanad and asking her to take Rs. 10,00,000/- from her brother and father as dowry. Learned counsel for the petitioners submits that prior to the marriage there was demand of Rs. 25,00,000/- for purchase of flat and money was paid for purchase of the same. Hence it can not be said payment of such amount was made at the time of marriage. It has further been contended that allegations made in the complaint appears to be absurd and quite false and frivolous. It has further been contended that petitioner no. 1 and 2 are living at Paschim Vihar, New Delhi whereas petitioner no. 3, is living at Uttari Pitampura, New Delhi. It has further been contended that allegations made in the complaint are false and frivolous and has Patna High Court Cr.Misc. No.32014 of 2012 (7) dt.22-04-2013 relied on decision reported in AIR 1960 SC 866 (R. P. Kapur Vs. State of Punjab). Learned counsel for the opposite party however, contends that there is two parts in the allegation. The first part with regard to payment of Rs. 25,00,000/- for purchase of flat and second part with regard to demand of Rs. 10,00,000/- and there is allegation of demand and subjecting cruelty by accused persons with specific allegation of assault by Nanad on the complainant. It is further allegation contended in para 16 of the complaint petition that petitioner no. 3 had beaten the complainant by hot utensil Learned counsel for the State however, submits that at the stage of taking cognizance, the learned Magistrate can only required to see whether allegations made in the complaint is prima facie made out an offence. Hence having regard to the respective submissions, the question for consideration whether the order taking cognizance by the Magistratge is sustainable. However, it is well settled that at the stage of taking cognizance the Magistrate is only required to look into whether allegation made in the complaint prima facie make out an offence. At this stage the Magistrate require to meticulous examine to material on record or statement of witness nor can look into the falsity or truthness of the allegation nor can look into sufficiency and acceptability of material produced. This could also whole exercising jurisdiction under Section 482 Cr.P.C. Patna High Court Cr.Misc. No.32014 of 2012 (7) dt.22-04-2013 is not required to give the course of proceeding to be of material by resorting to appreciation of evidence which is a function of the trial court. However, taking into consideration the allegation made in the complaint it is apparent that case is two parts, out of two parts, first part payment of Rs. 25,00,000/- for purchase of flat and money was paid to the tune of Rs. 25,00,000/- to the extent over the purchase of the flat. However, subsequently there is allegation that marriage was proposed and solemnised. After marriage, there was demand of Rs. 10,00,000/- and there is allegation of subjecting cruelty by passing sarcastic remark and assault for non- fulfillment of demand. Hence taking into consideration the allegation, prima facie the case is made out. However, it is well settled that at the stage of taking cognizance, the Magistrate is required to see whether the allegation made and material collected during investigation, prima facie makes out an offence. At this stage the Magistrate neither requires to meticulously appreciate the evidence nor take into consideration the probable defence of the accused. This Court even at the stage of exercising jurisdiction under Section 482 Cr.P.C. is neither to verify the contention or sufficiency of evidence not to consider the defence and the principle to be adopted is if entire evidence produced and allegation made is believed whether it constitute the offence or not. Patna High Court Cr.Misc. No.32014 of 2012 (7) dt.22-04-2013 However, applying principle taking consideration of the allegation, it can not be said that allegations made in the complaint are inherently or manifestly absurd. Further there is specific allegation about demand and subjecting cruelty that Nanad of the complainant demanded Rs. 10,00,000/- and in altercation Nanad of the complainant assaulted her by hot utensil. Hence prima facie case is made out against accused persons. However, this Court at this stage can not go into the question whether the allegations made in the complaint are true or false, this is subject matter of trial. Hence I do not find any merit to interfere the order taking cognizance. Accordingly, this petition is dismissed. However, this petitioner may raise issue at the stage of framing of the charge. m.p. (Gopal Prasad, J)