Mahendra Dayal, J. - (1.) This application under Sec. 482 Cr.P.C., has been filed for quashing of the summoning order dated 16.07.2013 passed in Criminal Case No. 45/2013, under Ss. 498 -A, 323, 504, 506 and 406 IPC, by the Court of Judicial Magistrate, Court No. 35, Lucknow, whereby the applicant has been summoned to face trial. A prayer has also been made for quashing of the entire proceedings of the aforesaid criminal case.
(2.) The brief facts are that the applicant and the opposite party No. 2 are husband and wife. The marriage between them was solemnized in the month of November, 1986. The applicant is working on the post of Chief Scientist in C.D.R.I., Lucknow. Two sons were born out of the wedlock. The first son is a Computer Engineer and is aged about 27 years, while the second son is aged about 20 years. It was in the year 1989 -1991 that the applicant visited United States and stayed there for a considerable period. During his stay at United States, he pursued the opposite party No. 2 to take admission in the M.B.A. Course. He also took her to several countries. However, despite all efforts from the side of the applicant, the opposite party No. 2 neglected the applicant and some times abused him also by calling him illegitimate child of his parents. The applicant was ultimately forced to move out from his own house in the month of March, 2012 on account of cruelty from the side of the opposite party No. 2 and since then both of them have been living separately. The opposite party No. 2 also filed a suit for divorce in the year 2012 on the ground of cruelty and desertion. She also filed a case under the Domestic Violence Act and also claimed maintenance under Sec. 125 Cr.P.C. The Court fixed monthly maintenance of Rs. 15,000/ - as an interim measure and the applicant paid a sum of Rs. 1,70,000/ - to the opposite party No. 2 towards maintenance allowance. In order to further harass the applicant, the opposite party No. 2 filed an application under Sec. 156(3) Cr.P.C., which was treated as complaint case. The learned Magistrate, after following the procedure of the complaint case, passed the impugned summoning order in a mechanical manner. There was absolutely no material to attract the offence of Sec. 406 IPC. There is also no material on record to attract the offence of Ss. 498 -A, 504 or 506 IPC. The impugned summoning order, passed by the learned Magistrate, therefore, suffers from manifest error of law and is liable to be set aside.
(3.) Learned counsel for the opposite party No. 2 has filed counter affidavit and has stated therein that the entire facts narrated in the complaint are true and on the basis of the allegations, the charges under Ss. 498 -A, 323, 504, 506 and 406 IPC are fully made out. The applicant after having acquired control over the movable or immovable properties belonging to the opposite party No. 2, has misappropriated the property and has left her to face destitution. The opposite party No. 2 has no source of income. It has further been averred that the opposite party No. 2 has half share in a plot at Sector -H, Aliganj, Lucknow, which is measuring 2200 sq. ft., but in order to misappropriate the share of the opposite party No. 2, the applicant sold the entire plot without the knowledge and consent of the opposite party No. 2. Several other allegations have been made in the counter affidavit to show that the applicant had committed the offence of misappropriation of property. The submission on behalf of the opposite party No. 2 is that on the basis of the allegations made in the complaint and the statement, the learned Magistrate has rightly passed the summoning order and there is no sufficient ground for quashing of the summoning order.;