NAHEED ARA MOONIS, J. - (1.) THE instant 482 petition has been filed with a prayer to quash the Criminal Complaint No. 1695 of 1995 pending in the court of VIth Additional Chief Judicial Magistrate, Bareilly (Smt. Rama Agarwal Vs. Rakesh Kumar Agarwal) filed by opposite party no. 2 on 30.11.1995, under Sections 406 and 420 I.P.C. It is further prayed that the entire proceedings may be quashed.
(2.) IT is borne out from the record that the opposite party no.2 filed a criminal complaint before the Chief Judicial Magistrate, Bareilly against the applicant that she was married with the applicant according to the Hindu custom and rites on 20.9.1991 and at the time of marriage various households items were given but after the marriage the applicant never treated her humanely and in cordial manner instead of tortured her mentally and physically both behaving rudely that she was ousted from her marital home only in clothes on 12.11.1992. Neither the applicant nor his family members called her back nor any maintenance provided hence she had to move a complaint on 30.11.1995 for returning all the goods given at the time of marriage. The opposite party no. 2 had also filed a list of household goods given at the time of marriage along with the complaint. The court below after recording the statements of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C. found prima facie offence under Section 406 I.P.C. is made out against the applicant hence passed the order on 23.2.1996 taking cognizance of the offence fixing 21.3.1996 for his appearance. The applicant filed the instant petition for quashing the aforesaid proceedings and this court vide order dated 17.1.2000 stayed the proceedings for three months and the stay order extended time to time and on 9.8.2001 the interim order was continued until further orders. In the meantime the State filed the counter affidavit of which a rejoinder affidavit was also filed on behalf of the applicant in the year 2002. Now a supplementary affidavit has been filed on 4.5.2012 taking two grounds for quashing the proceeding, which is absent in the pleadings when the 482 petition was filed. It is submitted by the learned counsel for the applicant that the proceeding initiated against the applicant is barred by the provision of Section 468 (2) (c) of Criminal Procedure Code. The punishment provided under Section 406 I.P.C. is three years or fine or both whereas the complaint was filed by the opposite party no. 2 on 30.11.1995 though she was ousted on 12.11.1992, therefore, after the lapse of three years the complaint was filed and the cognizance was taken on 23.2.1996 without passing any speaking order regarding taking of cognizance even after expiry of the period of limitation. Secondly, it has been argued that no offence under Section 406 I.P.C. is made out against the applicant as the property given at the time of marriage belongs "jointly" to husband and wife, therefore, there was no breach of trust bringing any offence under Section 406 I.P.C. The list of articles given at the time of marriage filed along with the affidavit shows that the articles whatsoever was given to the applicant as well as to the wife and as such no offence of criminal breach of trust is made out against him. At the most the opposite party no.2 could have initiated proceedings for recovery under Section 27 of the Hindu Marriage Act and hence the court below had no jurisdiction to take cognizance of the offence. The applicant had instituted a suit of divorce under Section 13 of the Hindu Marriage Act despite sufficient service on the opposite party it was not contested by her and the decree of divorce was passed ex parte on 30.8.1996. She could have claimed under Section 27 of the Hindu Marriage Act in the same proceeding of divorce but the proceeding initiated against him under Section 406 I.P.C. is a misuse of the process of law. In support of his contention the learned counsel for the applicant has relied upon the decision of the Apex Court 1997 (7) SCC page 500 (Bal Krishna Ram Chandra Kadam Vs. Sangeeta Bal Krishna Kadam).
(3.) THE Apex Court has held that even if the decree of divorce has already been passed a separate decree in respect of the property claimed by wife can be passed under Section 27 of the Hindu Marriage Act and has also observed that the expression "at or about the time of marriage" has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their "joint property' implying thereby that the property can be placed to have connection with the marriage. All such property is covered by Section 27 of the Act. It is further argued that the applicant has now been retired from service now aged about 64 years who was an employee in the State Bank of India and he had also undergone open heart surgery in the year 1992. The proceedings have been initiated with mala fide intention hence liable to be quashed. Learned A.G.A. has supported the order passed by the court below taking cognizance against the applicant and has contended that the articles given at the time of marriage including 'Stridhana", which were not returned by the applicant to the opposite party no. 2. She was ousted from her matrimonial house in single cloth on 12.11.1992 when the opposite party no. 2 demanded from him to return the articles given at the time of marriage it was refused by him and under compelling circumstances the opposite party no. 2 had to file the complaint under Sections 406 and 420 I.P.C. and at time of filing of complaint the list of articles given at the time of marriage was also enclosed. The court below had not found any offence under Section 420 I.P.C. and had taken cognizance only under Section 406 I.P.C. as the applicant had deliberately withheld the property of the wife given at the time of marriage, which prima facie makes out an offence under Section 406 Cr.P.C. The ground of limitation has been taken after the lapse of 20 years to escape from the punishment, the court has discretion to take cognizance even after expiry of period of limitation. The complaint was filed on 30.11.1995 and the cognizance has been taken on 23.2.1996. It is within the discretion of the court below to take cognizance in the interest of justice. The complaint could not be thrown out at threshold merely on the ground of limitation. The applicant cannot derive any benefit that the order taking cognizance is not a speaking order regarding taking cognizance even after expiry of limitation. Section 27 of the Hindu Marriage Act is also not applicable in the present facts and circumstances of the case. The opposite party no.2 had moved an application under Section 125 Cr.P.C. claiming maintenance from the applicant but it was dismissed for want of appearance of the opposite party no. 2. The applicant has abused the process of the court by not appearing before the court below after taking cognizance against him under Section 406 I.P.C. despite bailable warrants were issued on successive dates from 1996 till 6.10.1999 thereafter the instant petition has been filed and succeeded in his attempt in getting an ex parte order whereby the proceeding was stayed by this Hon'ble Court on 12.1.2000 when the order of cognizance was already passed in 1996, therefore, the applicant has not come with clean hands and now the plea taken regarding the maintainability of the complaint as well as taking cognizance after the expiry of period of limitation if accepted would lead great harassment to the opposite party no.2, therefore, the petition lacks merit and deserves to be dismissed with costs.;