MANSOOR AH KHAN Vs. TUMSEM FATIMA

JUDGEMENT

(1.) This criminal revision case is filed against the judgment of the First Additional Metropolitan Sessions Judge, Hyderabad in Cr1.A.No.134/90 confirming the conviction of A-l and A-2 for an offence under Sec.6 of the Dowry Prohibition Act and sentence to suffer R.I for one year and also pay a fine of Rs.1,000/- I.D. to suffer S.I. for four months. They were further directed to return Rs.75,000/-to P.W.2 within one month from the date of the order. The appellate court set aside the conviction and sentence of A-2 under Sec.406 IPC.

(2.) The case of the prosecution in brief is as follows: A-l and A-2 are brothers. P.W.I is the wife of A-l. A-l married P.W.I on 20-1-85 at Hyderabad as per Muslim Personal Law. Subsequently she was subjected to cruel treatment and later driven out of the house of A-1. Since 8-6-85 she was living with her parents. Prior to the marriage a sum of Rs.75,000/- was paid towards Ghoda Joda Ki Rakam and it is alleged that the same was not returned in spite of demand and legal notices to the accused. It must be noted that after separation of A-l and P.W.I, A-l filed O.S.20/85 on the file of First Additional Magistrate and the same was decreed. The wife also filed a suit for dissolution of the marriage and the same was decreed. Subsequently she filed another suit at Hyderabad for return of an amount of Rs.2,70,000/- and the same was decreed by the original court. An application to set aside that ex parte order has been filed and that was dismissed. Against that C.M.A. was filed and that was also dismissed. Supreme Court also dismissed the S.L.P. So far as the claim with regard to Rs.2,70,000/- is concerned a decree has been granted in favour of P.W.I and it has become final. The decree for dissolution of marriage has also become final. Now this case is filed under Sec.6 of Dowry Prohibition Act alleging that a sum of Rs.75,000/- was paid in two instalments on 16-12-84 and 6-1-85. The case of the accused is one of total denial.

(3.) The evidence of P.Ws.l to 3 is to the effect that a sum of Rs.75,000/- was given towards Ghoda Joda in two instalments. Photographs were also taken at the time of payment. D.W.2 the wife of A-2 perused the photographs Exs.P-1 and P-2 and stated that the person shown in the photographs is her husband. Thus Exs.P-1 and P-2 amply corroborate the oral testimony of P.Ws.l and 2. Another circumstance that has to be taken into consideration is Ex.P-7, a certificate issued by the Manager of Andhra Bank stating that P.W.2 has withdrawn Rs.50,000/- from his S.B. Account on 15-12-84. It is the case of the prosecution that with the said amount they purchased a house at Erragadda in the name of D.W.2. Ex.P-5 is the sale deed which is executed on 17-12-84 i.e., one day after receiving the sum of Rs.75,000/-. The consideration is shown as Rs.10,000/-. Though we are not concerned with the date of sale, as it coincides with the date of payment which is just one day prior to the date of sale strengthening the evidence of P.Ws.l to 3,I feel that the courts below rightly held about the factum of payment of Rs.75,000/-.