Court No. - 72
Case :- APPLICATION U/S 482 No. - 33510 of 2017 Applicant :- Mohammad Aslam Ansari Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shamim Ahmad Ansari Counsel for Opposite Party :- G.A.,Mohammad Shahrum Khan With Case :- APPLICATION U/S 482 No. - 33509 of 2017 Applicant :- Tasneem Aslam And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shamim Ahmad Ansari Counsel for Opposite Party :- G.A.,Mohammad Shahrum Khan
Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Shamim Ahmad Ansari, learned counsel for the applicants, Shri Mohammad Shahrum Khan, learned counsel for opposite party no.2 and the learned AGA for the State.
2. Application U/S 482 No. 33510 of 2017 has been filed to quash the summoning order dated 10.07.2017 as well as the entire proceedings of Complaint Case No. 1428 of 2015 (Amjad Zahoor Vs. Mohammad Aslam Ansari & Ors.), under Sections 406, 420, 504, 506 IPC, Police Station Chakeri, District Kanpur Nagar, pending in the court of the Metropolitan Magistrate, Court No.2, Kanpur Nagar.
3. Learned counsel for the applicant submits that the present prosecution arises from a complaint lodged by opposite party no.2, who was the son-in-law of the present applicant. Arising out of a bad matrimonial relationship between opposite party no.2 and Ms. Tasneem Aslam, daughter of the applicant, the present prosecution was lodged only by way of counterblast to some proceedings instituted by the applicant's daughter against opposite party no.2 for grant of maintenance allowance etc. As to the status of the marriage between opposite party no.2 and Ms. Tasneem Aslam, the same is stated to have been dissolved.
The opposite party no.2 is paying maintenance allowance to Ms. Tasneem Aslam.
4. In the above background facts, perusal of the complaint reveals that the complaint was lodged in the year 2015, whereas the matrimonial relationship between the parties had gone bad in the year 2014, when Ms. Tasneem Aslam instituted proceedings under Section 125 Cr.P.C. (a copy of which has been filed with the present application), which reveals that the said Ms. Tasneem Aslam filed Case No. 624 of 2015 (Tasneem Aslam & Anr. Vs. Mohd. Amjad Zahoor), disclosing the cause of action to have arisen on on 08.02.2014.
5. As to the allegations made in the complaint, they are to the effect that some money had been paid by opposite party no.2 to the present applicant for purchase of land and that neither the applicant had purchased the land in favour of opposite party no.2 nor he had returned the money.
6. Statements under Sections 200 and 202 Cr.P.C. also appear to have been recorded containing similar allegations.
7. The connected matter, i.e. Application U/S No. 482 of 33509 of 2017 had been filed to quash the summoning order dated 10.07.2017 as well as the entire proceedings of Complaint Case No. 1576 of 2015 (Amjad Zahoor Vs. Tasneem Aslam & Ors.), under Section 406, 420 IPC, Police Station Chakeri, District Kanpur Nagar, pending in the court of Metropolitan Magistrate, Court No.2, Kanpur Nagar.
8. It appears that opposite party no.2 had lodged another complaint against the applicant, his wife and daughter Ms. Tasneem Aslam, making allegation in respect of certain jewellery and ornaments. Thus, it has been submitted, in the context of matrimonial dispute that had arisen between daughter of the applicant and opposite party no.2, general and vague allegations had been made only to cause harassment or to pressure the applicant to withdraw from the proceedings drawn by him against opposite party no.2.
9. Learned counsel for opposite party no.2 and learned AGA for the State, on the other hand, submit that, at present, ingredients of the offence alleged are made out and no further examination is required to be done at this stage. Referring to the complaint allegations and the statements recorded under Sections 200 and 202 Cr.P.C., it has been submitted that all vital details have been disclosed by opposite party no.2. which constitute the ingredients of the offence alleged.
10. Having heard learned counsel for the parties and gone through the material on record, it is undisputed that there had arisen a matrimonial discord between opposite party no.2 and Ms. Tasneem Aslam in February 2014. Also, maintenance was claimed and had been granted by the Principle Judge, Family Court, Lucknow by order dated 08.06.2015 to Ms. Tasneem Aslam at the rate of Rs. 2,000/- per month and to her son at the rate of Rs. 500/- per month. Further, it is on record that another proceedings under the Protection of Women from Domestic Violence Act were instituted by the said Ms. Tasneem Aslam.
11. The complaint allegations itself appear to suggest that some money was paid to the applicant for purchase of the plot. No written agreement exists in that regard. However, it is undisputed that the money has been paid when the relationship between the parties had not gone bad. Thus, the son-in-law claims to have given some money to his father-in-law to purchase the property. Keeping in mind the relationship that was then existing between the parties and the nature of transaction as has been alleged, clearly, differences or dispute, if any, arisen in such circumstances over sale of immovable property or return of money would remain a civil infringement of law not involving any criminal act. Question of cheating or breach of trust would not arise.
12. There does not appear to exist any material brought by opposite party no.2 to establish that there was any ill intent on part of the applicant at the time when the money is claimed to have been advanced. Thus, the ingredients of the offence alleged are not made out. Similarly, the ingredients of offence in the connected case as well, wherein it has been alleged that certain jewellery had been misappropriated by the applicant, there does not appear to exist any material to proceed on the assumption that the jewellery taken away by Ms. Tasneem Aslam was such as was belonging to any other person. It is common that when matrimonial relationships go bad, such allegations do emerge. However, at present, in absence of any material to establish that there was some jewellery belonging to any other person, as may have taken away by the accused, it is difficult to allow the prosecution to proceed keeping in mind the undisputed existence of bad matrimonial relationship.
13. In view of the above, the summoning orders as well as the entire proceedings of the aforesaid complaint cases are set aside.
14. Both the applications are accordingly allowed.
Order Date :- 26.4.2019 AHA