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TMI Blog2009 (7) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the appellant. Out of the wedlock between the appellant and Respondent No. 2, there is no issue. 3. The appellant was working at the relevant time at Saudi Arabia. The appellant got married to Respondent No. 2 when he came on leave for four months. However, after the marriage there appears to be some dispute between the parties. On 21.04.2002, Respondent No. 2 filed an FIR in the Kottayam Police Station, District Kollam, Kerala alleging that the appellant married her when he came on leave for 4 months and that after the marriage he stayed in the house of the complainant - wife and that after expiry of the period of leave, her husband - the appellant returned to the Gulf. It was also alleged by Respondent No. 2 in the said FIR that thereafter, for 2-3 months, the appellant used to send money for the expenses in the house, talked to her over phone and also sent letters from Saudi Arabia and also behaved with her very affectionately. It was also alleged that the parents of Respondent No. 2 at the time of marriage had given Rs. 5 lakhs and that the said money was utilized by the family of the appellant for purchasing a house at Nediyazhikam and also a property at Mukkam where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be said that the FIR and the charge sheet do not disclose the commission of the offence alleged against the appellant. 6. Being aggrieved by the said order passed by the learned Single Judge of the High Court, the present appeal was filed on which notice was issued and further proceedings before the trial court were stayed by this Court. 7. Now, the appeal is listed before us for hearing and we heard the learned Counsels appearing for the parties. In order to fairly appreciate the contents of the submissions made by the counsel appearing for the parties, it is necessary to extract relevant portion of the FIR and the charge sheet. 8. The relevant part of the FIR is as under: ...On last 23rd October, 1997, Shakson Belthissor of Nediyazhikam House, Mukkam, Mayyanad married me at the Iyyathu Church at Kollam in accordance with the religious rites and custom. Husband is called by the name Raju. Husband has been working in Saudi Arabia as Business Executive. He married me at the time when he came on leave for 4 months. After the marriage, after wedded life had been in my house. On expiry of the period of leave, husband returned to Gulf. Thereafter, for 2-3 months, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no offence was committed under Section 34 IPC. Since the accused in this case has been in Gulf, arrest could not be made and the Hon'ble Court may be pleased to issue warrant to arrest and produce the accused. 9. The scope and power of quashing a first information report and charge sheet under Section 482 of the CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down. 10. In Nagawwa v. Veeranna Shivalingappa Konjalgi 1976CriLJ1533 , it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations made in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate for issuing process against the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC para 5, p. 741 : SCC (Cri) pp. 511-12] Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence, which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. 9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. 10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. 19. The same view has been taken by this Court in Chunduru Siva Ram Krishna and Anr. v. Peddi Ravindra Babu and Anr. SLP (Crl.) No. 2991 of 2007; and V.V.S. Rama Sharma and Ors. v. State of U.P. and Ors. SLP (Crl.) No. 1529 of 2007. 20. It was fairly agreed at bar that the aforesaid FIR was filed by Respondent No. 2 with the intention of making out a prima facie case of offence under Section 498A of the Indian Penal Code. The charge sheet, which was filed by the police was under Section 498A of the Indian Penal Code. As to whether or not in the FIR filed and in the charge sheet a case of Section 498A IPC is made out or not is an issue, which is required to be answered in this appeal. Section 498A of the IPC reads as follows: 498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. 23. We, therefore, now proceed to examine as to whether the case would fall under explanation (b) of Section 498A of IPC constituting cruelty of the nature as mentioned in explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty. 24. The marriage between the appellant and Respondent No. 2 was performed on 23.10.1997 when it is alleged that Rs. 5 lakhs was given by the parents of Respondent No. 2 to the family of appellant as dowry. The FIR was filed in the month of April, 2002 and in the said FIR there is no allegation that subsequent thereto any harassment was made by the appellant with a view to coercing her or any person related to Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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