Prabhat Mohanty vs Amrika and Others

Bansi Lal Bhat, J.â€"Through the medium of instant petition, quashment of proceedings pending in criminal complaint titled Amrika v Prabhat

Mohanty and others under Sections 405/406 RPC in the Court of learned Special Municipal Magistrate, Jammu is sought by assailing the

impugned order dated 22 05 2012 by virtue whereof the trial Court took cognizance of the offence. It 'is contended that the allegations in the

complaint did not disclose commission of alleged offences and initiation of proceedings in the complaint was an abuse of process of trial Court.

Respondent-Amrika appears to have filed a complaint wherein it was alleged that respondent-Amrika solemnized marriage with the present

Petitioner-Prabhat Mohanty in March 2003, in a temple at Muthi Road Morh Roop Nagar, Jammu which was attended by relatives of the

respondent-Amrika. It was further alleged in the complaint that after marriage petitioner cohabited with respondent-Amrika and the couple lived as

husband wife. Respondent-Amrika had been working as a labourer with different contractors. She claimed to have earned handsome money by

working as labourer and mate and entrusted her earnings to the tune of more than Rs. 4 50,000/- to present petitioner who utilized her money for

purchasing a Tractor, Tipper, Motor Cycle and also constructed a house in Orissa. Brother of the present petitioner nominated as accused No. 2

in the complaint was alleged to be working as driver of the Tipper, while mother of the petitioner nominated as accused No. 3 in the complaint is

said to be residing in the house constructed out of the entrusted money. The petitioner is alleged to have abandoned respondent-Amrika after she

was made to forcibly abort. It is alleged in the complaint that respondent-Amrika had contacted the petitioner, but the other accused were

extending threats to her. Thus, petitioner is alleged to have misappropriated the money entrusted to him by respondent-Amrika and refused to

return the same to her despite demand.

On consideration of the allegations in the complaint, statement of respondent-Amrika and the witnesses produced by her who were examined

under Section 200 Cr.P.C. the learned Magistrate passed the impugned order dated 22.05.2012, which incorporates the allegations in the

complaint and records the satisfaction of learned Magistrate regarding existence of a prima facie case justifying the issue of process against the

present petitioner and other co-accused, who are his brother and mother for offence under Sections 405/406 RPC. Learned counsel for the

petitioner has taken serious exception to the legality and correctness of the impugned order by arguing that the allegations in the complaint read

with the statement of respondent-Amrika did not disclose commission of offence under Sections 405/406 RPC. He relied upon the law laid down

by the Hon'ble Apex Court in State of U.P. Vs. R.K. Srivastava and Another, , wherein it has been held that if the allegations made in the FIR are

taken at their face-value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR

should be quashed.

Heard and considered.

Petitioner has, in the instant petition denied the very factum of marriage having been solemnized inter se him and respondent-Amrika. It is

averred in the petition that brother and mother of the petitioner arrayed as co-accused in the criminal complaint reside in the State of Orissa and

they have never been to the State of J&K.

Be that as it may, the factum and validity of marriage inter se the present petitioner and respondent-Amrika does not fall for determination within

the scope of instant petition. Allegedly, respondent-Amrika handed over her earnings accumulating to around Rs. 4, 50,000/- to the petitioner as

her husband who is alleged to have utilized the same for purchase of commercial vehicles and construction of house in Orissa. Prima facie

petitioner cannot wriggle out of the liability of criminal breach of trust in so far as taking of cognizance in the complaint against him for offences

under Section 405/406 RPC is concerned. However, complicity of petitioner's brother and mother who have neither been entrusted such money

nor have allegedly committed any breach of trust in respect thereof, is not prima facie made out. No act of omission or commission regarding

alleged criminal breach of trust is attributed to co-accused in the complaint. It is trite law that unless allegations in a complaint, taken at their face

value, constitute an offence, cognizance of offence cannot be taken. It appears that the petitioner and respondent-Amrika have fallen apart and

respondent-Amrika alleges to have been abandoned by the petitioner who is alleged to have misappropriated the money entrusted by respondent-

Amrika to him and refused to return the same thereby committing criminal breach of trust.

Viewed thus, disclosing of commission of offence under Sections 405/406 RPC justifying taking of cognizance and issue of process against the

petitioner-Prabhat Mohanty is made out. No prima facie case justifying issue of process against co-accused Parmod Mohanty and Phoolan Bhai,

arrayed as proforma respondents in the instant petition, is made out. It is a clear case of abuse of process against proforma respondents justifying

quashing of proceedings in the complaint as against them. Consequently, criminal proceedings against proforma respondents in the complaint titled

Amrika v Prabhat Mohanty and ors are quashed.

Disposed of accordingly, along with connected CMA. Trial Court be informed, accordingly.