High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD1 CRIMINAL APPLICATION NO.205 OF 20241Saraswati w/o Narayan Waghmode,Age 21 yrs., Occ. Household,R/o Monika Apartment, Handewadi,Pune. 2Balaji Nagnath Amoghe,Age 23 yrs., Occ. Labour,R/o as above. 3Chandrabhaga w/o Nagnath Amoghe,Age 42 yrs., Occ. Household,R/o as above. 4Nagnath Maroti Amoghe,Age 56 yrs., Occ. Labour,R/o as above. … Applicants… Versus …1The State of MaharashtraThrough Police Station,Sambhaji Nagar, Parli Vaijnath,Tq. Parli Vaijnath, Dist. Beed. 2Narayan w/o Ankush Waghmode,Age 27 yrs., Occ. Service,R/o Shivaji Nagar, Near Jublee Kishor House,Thermal Road, Parli Vaijnath,Tq. Parli Vaijnath, Dist. Beed. … Respondents...
Legal Reasoning
21_Cri.Appln_205_2024Mr. U.B. Bilolikar, Advocate for applicantsMr. G.A. Kulkarni, APP for respondent No.1Ms. Ashwini A. Lomte, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.DATE :22nd JANUARY, 2025ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed under Section 482 of the Codeof Criminal Procedure Code, 1973 for quashment of proceedings in RegularCriminal Case No.106/2023 pending before learned Judicial Magistrate FirstClass, Parli Vaijnath, Tq. Parli Vaijnath, Dist. Beed arising out of FirstInformation Report vide Crime No.28/2023 dated 11.02.2023 registered withSambhaji Nagar Police Station, Parli Vaijnath, Dist. Beed, for the offencepunishable under Section 406 read with Section 34 of the Indian Penal Code,1860. 2Applicant No.1 is wife of respondent No.2, applicant No.2 isbrother of applicant No.1 and applicant Nos.3 and 4 are their parents. It isnot in dispute that applicant No.1 got married to respondent No.2 on 31_Cri.Appln_205_202415.06.2020. They are blessed with daughter. It is not in dispute thatapplicant No.1 has filed First Information Report against present respondentNo.2, his mother Chhaya and two other persons vide Crime No.144/2022 forthe offence punishable under Sections 313, 498-A, 201, 315, 318, 504, 506read with Section 34 of the Indian Penal Code, under Sections 3, 4, 4(b), 5, 6of the Medical Termination of Pregnancy Act, 1971, under Section 33 ofMaharashtra Medical Practitioners Act, 1961 and under Section 15(2) of theIndian Medical Council Act, 1956. Charge sheet has been filed after theinvestigation, which is bearing Regular Criminal Case No.271/2022. It is alsonot in dispute that respondent No.2 and his mother came to be arrested on09.08.2022 in connection with said offence and they were in custody. Theywere granted bail on 03.11.2022. 3It is a classic case of dispute between husband and wife and inthis background learned Advocate for applicants submits that it is alleged inFirst Information Report that there are two sets of keys of respondent No.2’shouse and one of the sets was with applicant No.1. When respondent No.2and his mother came to house after they were bailed out, they had takensearch of keys of cupboard, but they could not find the same. It is then statedthat they found it on 04.02.2023 and then opened. It was noticed that goldjewellery near about 7.5 tolas and cash of Rs.67,000/- was missing. When 41_Cri.Appln_205_2024they made inquiry with neighbours Balaji and Bhimrao, they came to knowthat all applicants had come to the house of respondent No.2 on 08.09.2022.They were there for about 1 - 2 hours. Thereafter applicant No.1 locked thedoor and went. Thereupon, informant – informant No.2 says that applicantshad taken said ornaments and cash and misappropriated the same. First ofall, there is delay in lodging First Information Report. Though the bail wasgranted on 03.11.2022, immediately they would have come to the house andthen say that even they had searched for the keys but they could not find it.They had made no allegations about anything. Keys were found by mother inthe kitchen rack on 04.02.2023 and then the alleged taking away all thearticles was found. This is nothing but a concocted story. In fact, on08.09.2022 applicants had gone to said house as they were called forpreparation of panchnama in connection with First Information Reportlodged by applicant No.1. There were police persons present, who hadcarried out the panchnama. When the complaint has been lodged with malafide intention, then it would be unjust to ask applicants to face the trial. 4Learned Advocate appearing for respondent No.2 and learnedAPP strongly opposed the application and submitted that statements ofneighbours, who had seen applicants going in the house on 08.09.2022, issupporting piece of evidence. Other things can be explained by respondent 51_Cri.Appln_205_2024No.2 at the time of trial. The ingredients of offence are made out and,therefore, this may not be the fit case where inherent powers should beexercised. 5We have already reproduced contents of First Information Reportand, therefore, we do not want to repeat the same. Here, the section that isinvoked is 406 of the Indian Penal Code, for which we must consider theingredients of Section 405 of the Indian Penal Code. The ingredients in order to constitute a criminal breach oftrust are; i) entrusting a person with property or with anydominion over property, ii) that person entrusted is a)dishonestly misappropriating or converting that property to hisown use; or b) dishonestly using or disposing of that property orwillfully suffering any other person so to do in violation i) of anydirection of law prescribing the mode in which such trust is tobe discharged, ii) of any legal contract made, touching thedischarge of such trust. This is so held in S.W. Palanitkar and others vs. The State ofBihar and another [2002 SCC (Cri.) 129] and Kailash Kumar Sanwatia vs.The State of Bihar and another [(2003) 7 SCC 399]. Here, the relationshipbetween applicant No.1 and respondent No.2 is still intact. They arehusband and wife. No doubt, as per the story, applicant No.1 was not 61_Cri.Appln_205_2024residing with respondent No.2 on 08.09.2022. In First Information Reportrespondent No.2 has stated that his wife had gone to her parents house on15.07.2022 and he came to know about the miscarriage on 16.07.2022.Thus, if applicant No.1 was not residing in the house of respondent No.2from 15.07.2022 till the lodging of First Information Report on 11.02.2023,there is no question of entrustment of any property or it cannot be said thatshe had domain over the said property in any manner. Certainly, till the dateof arrest i.e. 09.08.2022 respondent No.2 was occupying the same house. 6Prosecution has come with a case that upon inquiry byrespondent No.2, neighbours Balaji and Bhimrao told that applicants hadcome to the house of informant – respondent No.2 on 08.09.2022. Importantpoint in this respect is that First Information Report came to be lodged on11.02.2023, statement of mother of respondent No.2 has been recorded on12.02.2023 and on the same day statements of Bhima Gulabrao Dawre i.e.Bhimrao and Balaji Shivaji Avhad were taken on 12.02.2023. At that time,they have clearly stated that they had no knowledge as to who had goneinside the house and who had taken gold ornaments and cash. Surprisingly,their supplementary statements have been recorded on 14.03.2023, at thattime, they have stated that though they had stated on 12.02.2023 that theydo not know anything, but in that respect their additional and true statement 71_Cri.Appln_205_2024they are giving now, and then they say that on 08.09.2022 applicants hadcome. Under the powers under Section 482 of the Code of CriminalProcedure this Court will have to read between the lines also and has to takenote of the total somersault by these two witnesses, on which the informantand prosecution story want to rely. If it was true fact that they had seenapplicants going inside the house, then why they had not so disclosed it on12.02.2023. It can also be then stated that as respondent No.2 is facing trial,possibility of winning over the witnesses and getting a favourable statementsmade in his favour cannot be ruled out. 7We have got it verified from learned APP that in FirstInformation Report, that has been lodged by applicant No.1 againstrespondent No.2, there is a spot panchnama on 08.09.2022. Copy of the saidpanchnama has been produced along with additional affidavit of applicantNo.4 on record. Thus, presence of applicant No.1 in the house of respondentNo.2 on 08.09.2022 is coming on record in the form of panchnama which hasbeen executed by Police Officer in presence of panchas. However, thatpanchnama is not clear as to from whom the keys of house of respondentNo.2 were fetched. 8Conduct of respondent No.2 and his mother will have to be 81_Cri.Appln_205_2024taken note of as from their own statement their bail was granted on03.11.2022. They had searched for key of cupboard from the house butcould not find it. The normal recourse would have been to search for thesame and if not able to, then would try to break the lock. But till 04.02.2023no such step was taken, though it is stated that there was cash in the saidcupboard and interestingly on 04.02.2023 mother could find keys of thecupboard on upper rack of kitchen. Now, except bare statements that therewere gold ornaments around 15 tolas and cash of Rs.67,000/-, there isnothing. As aforesaid, we have come to the conclusion that ingredients ofSection 406 of the Indian Penal Code are not made out, but then ingredientsof Section 379 of the Indian Penal Code also cannot be said to be made out,because of the relationship between applicant No.1 and respondent No.2 i.e.husband and wife. It would be unjust to ask applicants to face the trial asFirst Information Report appears to be filed with mala fide intention and/orin revenge and, therefore, it is within the parameters laid down in State ofHaryana and others vs. Ch. Bhajan Lal and others [AIR 1992 SC 604].Hence, following order. ORDERi)Criminal Application stands allowed. 91_Cri.Appln_205_2024ii)Proceedings in Regular Criminal Case No.106/2023 pendingbefore learned Judicial Magistrate First Class, Parli Vaijnath, Tq. ParliVaijnath, Dist. Beed arising out of First Information Report vide CrimeNo.28/2023 dated 11.02.2023 registered with Sambhaji Nagar Police Station,Parli Vaijnath, Dist. Beed, for the offence punishable under Section 406 readwith Section 34 of the Indian Penal Code, 1860, stands quashed and set asideas against applicants viz. 1) Saraswati w/o Narayan Waghmode, 2) BalajiNagnath Amoghe, 3) Chandrabhaga w/o Nagnath Amoghe and 4) NagnathMaroti Amoghe. ( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd