Criminal Application No.4808 of 2013

14th July, 2014.

Petitioner Counsel: Mr. SANTOSH S. JADHAVAR
Respondent Counsel: Mr. M.M. NERALIKAR, Mr. SHAILESH P. BRAHME

JUDGMENT

S. S. SHINDE, J. :- Heard the learned Counsel for the respective parties. Rule. Rule made returnable forthwith with consent of the parties.

2. By this Criminal Application, the applicant prays that charge Sheet No.I-210/ 2013 filed in the Court of the Chief Judicial Magistrate, Ahmednagar in connection with FIR, vide Crime No.I-298/ 2013 registered at Tophkhana Police Station, Ahmedngar, District Ahmednagar, for the offence punishable under Sections 454, 457 and 380 of Indian Penal Code, so also the proceedings of RTC No. 774/2013 arising out of the said charge sheet may kindly be quashed.

3. Learned Counsel appearing for the applicant submits that the allegations set out in the FIR relate to the acts for commission of offence during the period from 22nd April, 2013 and 1st May, 2013, however the complaint was belatedly filed on 3rd July, 2013.

4. Learned Counsel for the applicant invited our attention to several proceedings between the parties pending before the court and from 22nd April, 2013 till filing of the complaint, in question, though the complainant participated in those proceedings, including the proceedings under the Protection of Women from Domestic Violence Act, however, the complainant, in his reply or his stand before the court, did not state anything about the very allegations referred in FIR/complaint dated 3rd July, 2013. The sum and substance of the arguments of the counsel appearing for the applicant is that, a totally false complaint is belatedly filed on 3rd July, 2013, alleging therein that during the period 22nd April, 2013 and 1st May, 2013, the applicant break open door from back side and stolen certain articles from the room occupied by the complainant.

5. Learned Counsel further invited our attention to other documents placed on record, including the statements of other witnesses and submits that except the statements of the complainant, there is no other evidence or any other witness, who has stated about the alleged commission of offence by the applicant. Therefore, the learned Counsel for the applicant submits that the criminal application may be allowed.

6. On the other hand, learned Counsel appearing for the original complainant, submits that on 2nd May, 2013, the complainant did write to Police Inspector, Tophkhana Police Station, Ahmednagar, making the grievance about the stolen articles by the applicant, however, no cognizance of the said complaint was taken. Again on 14th May, 2013, another complaint was made by the Respondent No.2 to Deputy Superintend of Police, Ahmednagar, however, he too did not take any cognizance and, therefore, it cannot be said that the FIR is lodged belatedly. It is submitted that whether the allegations in the complaint are true or otherwise would be the matter of trial and, therefore, at this stage, this court may not interfere in the proceedings pending before the trial court.

7. It is further submitted that specific allegations are made in the FIR and specific act is attributed to the applicant and, therefore, unless the case is tried, no truth will come out and hence the application deserves to be rejected.

8. We have heard the learned counsel for the applicant; learned counsel for Respondent No.2/original complainant and learned APP for the State. With their able assistance, we have perused the averments in the application; the annexures thereto; the contents of the complaint filed by respondent No.2 and other documents which are placed on record, including charge sheet and the statements of other witnesses.

9. Upon careful perusal of the contents of the complaint, we find no averment that the complainant did file the complaints either on 2nd May, 2013 or on 14th May, 2013 with the police authorities. That by itself would indicate that no such complaint was ever filed. Had such complaint been filed, certainly there would have been reference in that regard in the FIR that was filed on 3rd July, 2013.

10. From the submissions made by the learned Counsel appearing for the applicant and the documents filed on record, it is revealed that she had filed an application under the provisions of Protection of Women from Domestic Violence Act (for short, DV Act) in the JMFC Court at Ahmednagar against Respondent No.2 herein and few others. The leaned counsel pointed that in the said application bearing Criminal Application No. 943/2012, the applicant had filed an application on 13.6.2013, seeking some interim orders from the court. To the said application, Respondent No.2 has filed his reply on 26.6.2013, wherein he has not even whispered about the theft occurred at his house of the articles worth Rs.44,000/- in May 2013, as alleged in the complaint lodged by him on 3.7.2013 and more particularly that he is seriously doubting the involvement of the applicant, i.e. his daughterinlaw in commission of the alleged theft. It appears quite improbable and unnatural that Respondent No.2 would not mention the said fact while opposing the application filed by the applicant seeking certain directions against him for providing certain articles like fridge, gas-stove, etc from him. When it is the specific allegation of Respondent No.2 in the complaint filed on 3rd July, 2013 that the theft has been committed by the present applicant in the period between 22nd April, 2013 and 1st May, 2013, that ground would have been certainly raised by him while opposing the application filed in the proceedings under the DV Act so as to bring to the notice of the Court the conduct of the applicant. Non disclosing the fact of occurrence of alleged theft by Respondent No.2 in his say filed on 26th June, 2013, raises a serious doubts about truthfulness of the complaint lodged by him on 3rd July, 2013, against the applicant alleging that she has committed theft of articles worth Rs.44,000 by entering his house by breaking open the bolts to his rooms in the period 22nd April, 2013 to 1st May, 2013.

11. At this stage, learned Counsel appearing for the original complainant, relying upon the list of documents, which was forwarded by the Police Officer to the Trial Court, submits that an application to that effect was forwarded to Sub Divisional Police Officer on 14th May, 2013 and it is a part of record before the trial court. In that respect also, we would like to observe that even if that very date is taken into consideration, the alleged incident, even according to the complaisant, having taken place, during the period from 22nd April, 2013 to 1st May, 2013 and even if that application was made on 14th May, 2013, in our considered view, that also is a belated attempt on the part of the complainant.

12. We have considered the entire material placed on record, including charge sheet and statements of the witnesses. Except the statement of the complainant himself, that too after filing the complaint belatedly, there is no other witness indicating involvement of the applicant in the commission of alleged theft. Admittedly, there is no recovery. In such circumstances, even if the trial proceeds on the basis of such material, in absence of any incriminating evidence against the applicant, it will be an exercise in futility. Moreover, when there is no material on record against the present applicant, it will be an abuse of the process of law to subject her to face the trial. We are, therefore, inclined to allow the present application. Accordingly it is allowed in terms of prayer clause (B-1), which reads thus,

"(B-1) By issuing appropriate order, charge Sheet No.I-210/ 2013 filed in the Court of the Chief Judicial Magistrate, Ahmednagar in connection with FIR, vide Crime No.I-298/ 2013 registered at Tophkhana Police Station, Ahmedngar, District Ahmednagar, for the offence punishable under Sections 454, 457 and 380 of Indian Penal Code, so also the proceedings of RTC No.774/2013 arising out of the said charge sheet may kindly be quashed."

13. Criminal Application is disposed of and rule made absolute in the aforesaid terms.

Ordered accordingly.