Radhamony Amma v. State of Kerala and Kavitha Kumari Amma

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 CRL.MC NO. 6997 OF 2016** **CC 1500/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM** ## **PETITIONER/ACCUSED NO.2** RADHAMONY AMMA, AGED 67 YEARS W/O SASIDHARAN PILLAI,MUKALUVILA VEEDU,CHEMMAKKADU CHERRY,PANAYAM,KOLLAM-691601. BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA ## **RESPONDENTS/COMPLAINANT** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2 KAVITHA KUMARI AMMA W/O GOPAKUMAR,MUKALUVILA VEEDU,CHEMMAKKADU CHERRY,PANAYAM,KOLLAM-691601. PP SANGEETHARAJ N.R THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING: Crl.M.C.6997 of 2016 2 ## ORDER ## Dated : 17[th] December, 2021 1. Petitioner is the 2[nd] accused in C.C.1500/2015 on the file of Judicial First Class Magistrate Court-I, Kollam which has been registered for the offence punishable under Sections 498A r/w 34 IPC. 2. 1[st] accused in Crime No.1005/2013 is the son of the petitioner/2[nd] accused (hereinafter referred as petitioner). According to the petitioner, marriage between the petitioner's son/1[st] accused and the 2[nd] respondent/de facto complainant was solemnized on 19.6.2000 as per the religious rites and ceremonies. At the time of marriage, petitioners' son was employed as a driver in Kuwait. Petitioner was also working in Gulf countries as a house maid and she returned to the native place when her son got employment. After the marriage, 2[nd] respondent and her husband were living with the mother of the 2[nd] respondent in her house. Soon after marriage, 2[nd] respondent joined her husband in Kuwait and they were living there. Two children aged 15 and 11 years are born out of their Crl.M.C.6997 of 2016 3 wedlock. The children are staying with the mother of the 2[nd] respondent and petitioner is living alone in her house. As time passed, the relationship between the first accused and 2[nd] respondent strained on account of some financial disputes. In May, 2013, petitioner's son and the 2[nd] respondent came on leave and the petitioner attempted to intervene in their dispute to settle the matter out of which 2[nd] respondent and her mother, became enmical towards the petitioner. 1[st] accused decided to return to Kuwait without taking the 2[nd] respondent. Infuriated by that, 2[nd] respondent and her mother filed complaint raising false allegations against the petitioner and her son and accordingly the crime was registered and subsequently final report was also filed. 3. According to the learned counsel for the petitioner, even if the entire allegations in the FIS and the subsequent statements are accepted, no offence as alleged would lie against the petitioner who is an old lady living alone in her house. 4. Notice was issued to the respondent. 1[st] respondent appeared through the learned Public Prosecutor and 2[nd] respondent appeared through counsel. Heard both sides. 5. The instances of exercise of powers under Section 482 Cr.P.C is Crl.M.C.6997 of 2016 4 no more res integra. In **State of Karnataka v. L. Muniswamy [AIR 1977 SC 1489]** it has been held that High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require it. 6. In **Gorige Pentaiah v. State of A.P [(2008) 12 SCC 531]** it - has been held while dealing with Section 482 that if any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 7. Learned counsel for the petitioner relied on **Varala Bharath Kumar and another v. State of Telangana and another (AIR 2017 SC 4434 = 2017 (9) SCC 413 = 2017 KHC 6626)** . That was a case filed for quashing the proceedings against the appellant in a proceedings initiated under Section 498A and 406 IPC. Appellant initially approached the High Court of judicature, Hyderabad under Section 482 Cr.P.C to quash the proceedings against them. But the High Court rejected the Crl.M.C.6997 of 2016 5 prayer of the appellant to quash the proceedings against which they approached the Apex Court. In that context, the Apex Court by making a detailed discussion of the ingredients of offence under Section 498A and 405 of IPC, ultimately found that allegations made in FIS as well as material collected during investigation do not constitute of subjecting the complainant to cruelty within the meaning of Section 498A of IPC. The records at hand could not disclose any willful conduct which is of such a nature as is likely to drive the complainant to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the complainant. It is also found that there is nothing on record to show that there was a demand of dowry by the appellant or any of their relatives either prior to the marriage during the marriage or after the marriage. It is further found that the records do not disclose anywhere that the husband of the complainant acted, with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security. Accordingly, order of the High Court was set aside and the proceedings initiated against the appellant under Section 498A and 406 IPC was quashed. 8. In the present case, according to the learned counsel, now the Crl.M.C.6997 of 2016 6 de facto complainant and the 1[st] accused are at abroad and this old lady who has been arraigned as 2[nd] accused is being dragged to Court on a complaint filed by the daughter-in-law with respect to which she has no connection at all. To substantiate the contention, the learned counsel brought to my attention Anneuxre-I which is an affidavit filed by the mother of the de facto complainant in a proceedings initiated under the Protection of Woman from Domestic Violence Act against the 1[st] accused, son of the petitioner, which was filed on 29.5.2013 wherein the allegation raised by her is that on 27.5.2013, the 1[st] accused came to her house consuming liquor and assaulted her and pushed her down. It is also alleged that her daughter abetted the first accused to do the act and she intimated the police and police took the first accused as well as her daughter to the police station. Annexure-II is the copy of complaint filed by the de facto complainant against the petitioner herein and her son under Section 190 Cr.P.C and in that her allegation is that on 27.5.2013 at about 10.00 am petitioner and her son trespassed into her house and the visa stamped passport of the 2[nd] respondent and her children and their birth certificate, driving licence, gold ornaments etc, have been stolen by the Crl.M.C.6997 of 2016 7 accused persons together. According to the learned counsel for the petitioner, that complaint is contradictory to Anneuxre-I complaint because in Annexure-I complaint her specific allegation is that on 27.5.2013 during night, petitioner's son went to her house and attacked her and her daughter abetted her to do the same and she intimated the police and both of them were taken together to the police station. But in AnnexureI complaint there is no whisper about the above incident alleged to have occurred in the morning. Annexure-A2(b) will show that Annexure-II complaint was filed on 9.7.2013 before the Magistrate Court. Annexure-IV is a private complaint filed by the 2[nd] respondent which led to the registration of the present crime and filing of the final report. Annexure-XI was additionally produced from the side of the petitioner which is a copy of award passed by the Lok Adalatyh held on 22.3.2015 in M.C.84/2014 which was filed by the first respondent against the petitioner and her son. As per that award the parties settled he entire dispute by which the petitioner herein and son agreed that they will not cause any obstruction to the 1[st] respondent and children residing in the house. Further there is an undertaking to pay Rs.9000/- in total towards maintenance by Crl.M.C.6997 of 2016 8 the son of the petitioner. Further there was an agreement to give Rs.10 lakhs to the first respondent and children towards the gold and property. It is after the filing of the above complaint that Annexure-AXI award has been passed in between the petitioner and her son and the first respondent and children. 9. The main contention of the learned counsel for the petitioner is that the marriage of the 1[st] accused and the de facto complainant was solemnized on 11.6.2000 and two children also born out of that wedlock and she had also been to Kuwait along with the 1[st] accused and it is long after in the year 2013, they came down together and when the 1[st] accused returned to Gulf without taking the 2[nd] respondent and the children, this false complaint was filed against her and the 1[st] accused. It is also his contention that in order to attract the offence against the petitioner under Section 498A the allegation is that her parents purchased 10 cents of property, when there was attempt by the 1[st] accused to sell ten cents of property standing in his name. Further allegation is that the accused persons subjected her to physical and mental cruelty to transfer the ten cents of property standing in the name of the de facto complainant to that of the petitioner herein. It is also alleged that on 10.5.2013 at about Crl.M.C.6997 of 2016 9 9.00 am while the de facto complainant was cooking, the 1[st] accused assaulted her in demand of execution of sale deed in favour of the petitioner and when she fell down, she was kicked by the petitioner and the other accused and further alleged that she was taken to her house stating that only on executing the sale deed she need to come back to their house. 10. According to the learned counsel for the petitioner, even though there is reference with regard to the demand for execution of property standing in the name of the de facto complainant in favour of the petitioner, there is no description about the property so standing in the name of the de facto complainant and no document also produced along with the charge to prove that there is any such property standing in the name of the de facto complainant. On perusing the chargesheet and the records, as rightly contended by the learned counsel for the petitioner, it is seen that there is no description of the property, survey number or village in which the property is lying, and no document to prove that such a property is standing in the name of the de facto complainant also has been produced. It is also to be noted that the marriage of the de facto complainant and the 1[st] accused was in the year 2000 and they 10 Crl.M.C.6997 of 2016 lived together till 2013 and admittedly by the de facto complainant, she had been to Kuwait along with the 1[st] accused and were living together. Only in May, 2013, they came down from there and thereafter, these issues between the parties arose. As has been held in **Varala Bharath Kumar** 's case, in order to attract the offence under Section 498A, there must be material prima facie from the side of the prosecution to prove the ingredients of the offence. It is relevant in this context to quote Section 498A IPC which reads thus :- “Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. _Explanation_ .—For the purposes of this section, "cruelty means"— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any Crl.M.C.6997 of 2016 11 unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 11. The learned counsel brought to my attention order in Crl.M.C.4656/2015 dated 12.7.2016 wherein a learned single Judge of this Court quashed the criminal proceedings against the second accused in Crime No.178/2015 of Central Police Station, Ernakulam which was also registered under Section 498A, 323, 324 and 326 IPC. The final report, Annexure-VII produced from the side of the petitioner would go to show that initially 161 statement of the de facto complainant was not taken since she was at abroad. The statement of her mother and children were taken which would show that at the time of taking their statement by the police, the de facto complainant was at abroad and subsequently her statement was also taken after she came from Gulf and she has not given anything in addition. Apart from that, she had entrusted one Appukkuttan Pilla who is also no more, as a witness who is in acquaintance with all the matters. The statement of Appukkuttan Pilla would also show that, after the marriage the de facto complainant had also accompanied the first accused to Kuwait and further he Crl.M.C.6997 of 2016 12 stated about some quarrel in their house and further the opinion of the de facto complainant of the demand of more gold and money. He categorically stated that he is not aware of the actual accounts of money or gold given to the 2[nd] respondent by her family members. In order to attract the offence under Section 498A, as rightly contended by the learned counsel for the petitioner, there must be materials to prove that the husband or relative of husband subjected the woman to cruelty which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Even this complaint filed by the de facto complainant, does not disclose any facts so as to attract the ingredients under Explanation (a) which says about cruelty under Section 498A. In order to attract clause (b) of Explanation of the word 'cruelty', harassment of the woman should be with a view to coercing her or any person related to her to meet any unlawful demand or property or valuable security or is on account of failure of her or any person related to her to meet such demand. 12. Here as rightly contended by the learned counsel, even though there is a bald allegation of demand of transfer of Crl.M.C.6997 of 2016 13 property standing in her name in favour of the petitioner herein, either in the complaint or in the subsequent statement of the de facto complainant or the statement of any of the witnesses, there is any mention regarding the property where it lies or the survey number or the document by which it has been purchased in the name of the de facto complainant. It has also come out that the de facto complainant had been living with the 1[st] accused for a long period after marriage in 2001 till 2013 in foreign country and it is after return in 2013, this complaint has been filed. Petitioner, the mother-in-law who was aged 67 years at the time of filing the Crl.M.C in the year 2016. The discrepancy with regard to the allegations in the complaint, Annexures-I and II, also have been discussed in the earlier paragraphs. 13. On evaluating the entire records, including the complaint as well as the subsequent statement of the witnesses, I am of the view that the materials collected by the prosecution, is not sufficient to prima facie attract an offence under Section 498A against the petitioner/2nd accused who is the mother of the 1[st] accused. So also even if the trial is allowed to be continued, the possibility of entering this case to a conviction as against the Crl.M.C.6997 of 2016 14 petitioner is also very remote. Hence the entire further proceedings against the petitioner/2nd accused is liable to be quashed for securing the ends of justice. 14. In the result, Crl.M.C allowed. All further proceedings against the petitioner/2nd accused in C.C.1500/2015 on the file Judicial First Class Magistrate Court-I, Kollam, is hereby quashed. Sd/- M.R.Anitha, Judge Mrcs/13.12. Crl.M.C.6997 of 2016 15 ## **APPENDIX OF CRL.MC 6997/2016** PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE AFFIDAVIT FILED ALONG WITH IN CMP NO.5796 OF 2013 ANNEXURE II TRUE COPY OF COMPLAINT AS CMP NO.7627 OF 2013 DATED 9.7.2013 ANNEXURE III TRUE COPY OF AFFIDAVIT FILED ALONG WITH IN CMP NO.11234 OF 2013 ANNEXURE IV TRUE COPY OF COMPLAINT AS CMP NO.14531 OF 2013 DATED 26.12.2013 ANNEXURE V CERTIFIED COPY OF FINAL REPORT IN CRIME NO.1985 OF 2013 OF ANCHALAMOODU POLICE STATION ANNEXURE VI TRUE COPY OF STATEMENT GIVEN BY 2ND RESPONDENT BEFORE THE INVESTIGATING OFFICER.