1. The petitioners have approached this Court with this petition under Section 482 of the Criminal Procedure Code, seeking quashment of the FIR bearing M.Case No.7 of 2006 filed by respondent No.2-Sajedabanu Jafarabbas Merchant, registered with Bhavnagar 'A' Division Police Station, which is at Annexure 'F'.
2. Petitioner No.1 is the husband of respondent No.2, who stays at Raipur, Chattisgarh, petitioner No.2 is sister's husband of petitioner No.1, respondent Nos.3, 4 and 5 are brothers of petitioner No.1, petitioner No.6 is the wife of petitioner No.3, petitioner No.7 is the wife petitioner No.1 and petitioner No.8 is the mother of petitioner No.1.
3. The FIR has its root in matrimonial dispute between petitioner No.1 and respondent No.2. They had married according to Muslim customs. Somehow, the marriage did not sail through the rough weather and ended into divorce. Respondent No.2 had preferred the maintenance application under Section 125 of the Criminal Procedure Code for maintenance of herself and for her child, which was withdrawn on receipt of permanent alimony, by filing Pursis before the Court. However, according to respondent No.2, she was not paid any amount, but, she was assured that Rs.6,75,000/- will be paid to her through Demand Draft and on that assurance, she withdrew the maintenance application. Ultimately, the FIR in question has been filed. The allegations in the FIR relate to the offences punishable under Sections 406, 420, 120-B, 34, 114, 466, 467 and 471 of the Indian Penal Code.
4. Heard learned advocate Mr.Joshi for the petitioners, learned advocate Mr.Shah for respondent No.2 and learned APP Mr.Pandya for respondent No.1-State of Gujarat.
5. Learned advocate Mr.Joshi submitted that the FIR on its face value fails to prove the ingredients of all the offences, which are alleged in the FIR. Mr.Joshi submitted that the FIR is lodged only with a view to put the pressure on the petitioners.
6. Learned advocate Mr.Shah as well as learned APP Mr.Pandya has opposed this petition.
7. Having given a close scrutiny to the FIR in question, it is found that there is a reference to it in column No.6, but, any ingredient of Section 406 is not made out. There is no allegation of any entrustment of any property or valuable security, nor there is any allegation of any of the petitioners appropriating the same or taking in their own use. The offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code is not made out. Similarly, the offence of forgery of Court record punishable under Section 466 of the Indian Penal Code is also not made out. The offence of forgery of any valuable security punishable under Section 407 of the Indian Penal Code is also not made out. Those offences, therefore, cannot be said to have been made out.
8. There is an allegation of offence having been committed by the petitioners under Section 471 of the Indian Penal Code. The ingredients thereof are also not made out. Besides that, there is also the requirement of Section 195 of the Criminal Procedure Code, which is also not satisfied.
9. As a result, the offences alleged in the FIR under Section 406, 466, 467, 471 of the Indian Penal Code are not made out from the FIR and they deserve to be quashed against all the petitioners.
10. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, it may be noted that the allegation in the FIR is that petitioner No.1 and his associates assured the first informant-respondent No.2 that she would be paid Rs.6,75,000/- as permanent alimony by way of Demand Draft and that no such Demand Draft was given to her. Mere giving of assurance, not validated by any action of the accused of parting with some property or parting possession from his occupation, would not constitute any offence. Therefore, what is to be seen is whether any subsequent action, on the part of the accused on the basis of such assurance, is made out or not.
In this context, a close look at the FIR shows that petitioner No.1 persuaded the first informant to withdraw her maintenance application under Section 125 of the Criminal Procedure Code and committed the offence. Taking an over all view of the picture, what emerges is that under the assurance of petitioner No.1, the first informant-respondent No.2 withdrew the maintenance application under Section 125 of the Criminal Procedure Code. Even as per the allegation, the offence against the petitioner Nos.2 to 8 is not made out.
11. Once it is found that out of allegations made in the FIR, only one offence is made out against the only one petitioner and therefore, there is no question of constituting offences under Section 120-B, 34 or 114 of the Indian Penal Code. Resultantly, for the forgoing discussion the FIR is quashed against the petitioner Nos.2 to 8 for the offences 406, 420, 120-B, 34, 114, 466, 467 and 471 of the Indian Penal Code.
12. The FIR also stands quashed against accused No.1 for the offences under Sections 406, 120-B, 34, 114, 466, 467 and 471 of the Indian Penal Code. The FIR will continue against petitioner No.1- Jafar Abbas Rasool Mohammed Merchant, so far as the offence under Section 420 of the Indian Penal Code is concerned.
13. The petition thus stands partly allowed. Rule is made absolute to the aforesaid extent.
..mitesh..
[A.L.DAVE, J.]