NEELAM KUMARI Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure for quashing the order dated February 1, 1989, passed by the learned Additional Sessions Judge, Amritsar, reversing the order dated 14 July, 1987 passed by the Judicial Magistrate 1st class, Amritsar, dismissing the complaint filed by the husband-Vijay Kumar against his wife Smt. Neelam Kumari, father-in-law, mother-in-law and brother-in-law under Sections 420, 406 and 380 of the Indian Panel Code. According to Vijay Kumar, the husband, he was working in Sharjah (UAE). Negotiations for marriage took place between him and Smt. Neelam Kumari respondent . The accused i.e Smt. Neelam Kumari, her both parents and brother, represented that Smt. Neelam Kumari had been earlier married toe Sarbdaman and the said marriage had been dissolved and believing the said representation to be true be entered into marriage with Smt. Neelam Kumari on June 23, 1983, and gave various gifts including gold ornaments specified in the complaint. He sent some more gift including a draft of Rs. 5,000/- from Sharjah. In August 1984 he came to India and learnt from the intermediaries that the previous marriage of Smt.Neelam Kumari had not been dissolved. Ultimately it was only on July 28,1984, that the earlier marriage of Smt. Neelam Kumari with Sarbdaman was dissolved by a decree passed by the Additional District Judge. Jalandhar. Thus, according to the husband, he had been cheated of the money and ornaments in question by Smt.Neelam Kumari and the other accused mentioned above. After recording preliminary evidence, the learned Judicial Magistrate held that there was no prima facie case against the accused and accordingly dismissed the complaint. In coming to this conclusion the main reason which prevailed with the learned Magistrate was that no misrepresentation was shown to have been made either by Smt. Neelam Kumari or the other accused. The husband filed a revision against the said order. The revision was allowed by the learned Additional Sessions Judge, Amritsar.

(2.) THE case of the petitioner Smt. Neelam Kumari is that her earlier marriage with Sarbdaman had been dissolved according to custom obtaining in their community and a writing to this effect dated November 25, 1982, was prepared on a non-judicial stamp paper. It was signed by the respectables of both sides and as her husband was then in Germany the agreement was sent there and it was signed by Sarbdaman with proper attestation from the German authorities. Learned counsel for the petitioner invited my attention to a writing Annexure P-2 dated June 17, 1983. According to the said writing, the husband-Vijay Kumar stated that he had seen 'all documents' and was satisfied regarding dissolution of the previous marriage of Smt.Neelam Kumari. He further stated in the writing that he had made independent enquiry of every relevant fact from Neelam Kumari's previous-in-law and parents and had similarly satisfied the other side about the dissolution of his own earlier marriage. The writing dated November 25,1982, Annexure P-1, the above writing dated June 17,1983, annexure p-2, were expressly adverted to in the petition. In the reply, it has not been specifically denied that the writing Annexure P-2 was not made by the husband or that he had not been shown the writing Annexure P-1 . It must be stated here that we are not concerned with the validity of the purported dissolution of marriage in Annexure p-1. The point of significance is that on behalf of Neelam Kumari and other accused what was represented was Neelam Kumari had been earlier married to Sarbdaman and her said marriage had been dissolved as per writing Annexure p-1 which rightly or wrongly satisfied Vijay Kumar husband who gave in writing Annexure P-2. In the facts and circumstances of the present case the element of misrepresentation which is essential in order to constitute the alleged offence is missing. If the representation, as now alleged by the petitioner, was not made, no offence was committed(sic)be, therefor, abuse of process of Court if the (sic) tried on the basis of complaint filled by the respondent . For these reasons, the complaint filed by Vijay Kumar against Neelam Kumari, her parents and brother in the Court of the Judicial Magistrate 1st Class, Amritsar, and the subsequent proceedings thereon are hereby quashed