Xxxxxxxx Vs Xxxxxxxxx — Pension and Retirement Benefits | Karnataka HC (2022)

Xxxxxxxx Vs Xxxxxxxxx — Pension and Retirement Benefits | Karnataka HC (2022)

1 - CRL.P No. 100781 of 2022

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 26^TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON'BLE MS. JUSTICE J.M.KHAZI

CRIMINAL PETITION NO. 100781 OF 2022 (482-)

BETWEEN

1 . BRIJESH KHEMLANI

S/O DEEPAK KHEMLANI AGE. 34 YEARS, OCC. SERVICE, R/O.PAN PACIFIC SERVICED SUITES, 7500B BEACH ROAD, SINGAPORE 199592.

2 . SMT. HARSHA KHEMLANI

D/O. DEEPAK KHEMLANI, AGE. 60 YEARS, OCC. HOUSEWIFE, R/O. 1559/115, WATERMARK, TOWER-A. CHAROEN NAKHON ROAD, BANGKOK, THAILAND-10600

3 . MRS. KARISHMA KEWALRAMANI

W/O SHYAM KEWALRAMANI, AGE. 32 YEARS, OCC. HOUSEWIFE R/O. 299/10062, MASTERVIEW EXECUTIVE PLACE, CHAROEN NAKHON ROAD, SOI 34, KHLONG SAN, BANGKOK 10600, THAILAND

...PETITIONERS

(BY SRI.PRASHANT F GOUDAR, ADVOCATE)

2 -

CRL.P No. 100781 of 2022

AND

1 . THE STATE OF KARNATAKA, REPRESENTED BY SPP HIGH COURT OF KARNATAKA, DHARWAD BENCH, THROUGH MARKET YARD PS, BELAGAVI

2 . SMT. ASHWINI W/O BRIJESH KHEMLANI AGE. 29 YEARS, OCC. R/O. C/O. SHRI HARISH GULABANI ADARSHA 530, DOUBLE ROAD, HANUMAN NAGAR, BELAGAVI-590019

…RESPONDENTS

(BY SMT. GIRIJA S HIREMATH, HCGP FOR R1; SRI. SHIVARAJ S BALLOLLI, ADV., FOR R2)

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH AND SET-ASIDE THE CRIME NO.62/2021 (i.e.FIR) RECORDED BY APMC YARD POLICE STATION IN P.C. NO.85/2021 BEFORE THE IV JMFC, BELAGAVI AND THE P.C. NO.85/2021 AGAINST THE PETITIONERS ARRAYED AS ACCUSED NOS.1, 3, 4 FOR THE OFFENCES U/S 498A, 504, 506, 406, 420 R/W SECTION 34 OF IPC.

THIS PETITION HAVING BEEN HEARD AND RESERVED ON 09.09.2022, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioners, who are arraigned as accused No.1, 3 and

4, have filed this petition under section 482 of Cr.P.C. to

3 -

CRL.P No. 100781 of 2022

quash the proceedings initiated against them in Crime No.62/2021 as per the reference for investigation under Section 156(3) of Cr.P.C. by the Magistrate in P.C.No.85/2021 on the file of the IV Additional JMFC, Belagavi for the offence punishable under sections 498-A, 504, 506, 406, 420 read with section 34 of IPC.

It is the case of the petitioners that petitioner No.1 is the son of petitioner No.2 and elder brother of petitioner No.3. They are permanent residents of Bangkok, Thailand. The marriage of petitioner No.1 with respondent No.2 was solemnized on 14.03.2017. After the marriage, she joined the matrimonial home at Bangkok on 23.05.2017. During this period, she visited her parental home multiple times and all her travel expenses were born out by petitioner No.1. During this period she also traveled to Sidney, Australia on three occasions to visit her sister in the year 2017, 2018 and 2019. Once she also went to Russia with her brother and mother in February-2020. During this period, the brother of respondent No.2 also visited Bangkok on several occasions and stayed with petitioners.

4 -

CRL.P No. 100781 of 2022

2.1. Respondent No.2 was working with one Aydin Farhoudi, a Belgium National had launched Crypto Currency named Avesta. The father of respondent No.2 invested Rs.50 lakhs in the Crypto Currency project. Petitioners have alleged that the behavior of respondent No.2 with them was very rude. She was very much frustrated during Corona while working from home. They have alleged that the said Aydin Farhoudi defrauded many people and absconded. As an executive of the said company, respondent No.2 is also involved. Fearing if she returns to Bangkok she would also be arrested, respondent No.2 is not ready to come back to matrimonial home. She has removed all the jewels from the joint locker of herself and petitioner No.1. In order to get divorce from petitioner, she has filed a false complaint under section 200 of Cr.P.C. Without application of mind, the Trial Court has referred it to the jurisdictional police for investigation. The concerned police issued notice to petitioners and the father of petitioner No.1 Sri.Deepak Khemalani under Section 41-A of Cr.P.C. After receipt of the said notice, he died due to heart attack.

5 -

CRL.P No. 100781 of 2022

2.2. Respondent No.2 has issued legal notice to petitioner No.1 to agree for mutual consent divorce by paying Rs.1 Crore as permanent alimony, return Rs.50 Lakhs allegedly given by her father which was in fact the investment made by him in Crypto Currency. In order to force the petitioner No.1 to agree for the divorce, a false complaint is filed and hence, sought for quashing of the criminal proceedings.

Respondent No.1 has appeared through learned

HCGP.

Respondent No.2, who is the complainant and wife of petitioner No.1 has appeared through counsel and filed objections denying the allegations made in the petition. On the other hand, she has pleaded that she was harassed and ill-treated by demanding dowry of Rs.1 Crore, and Rs.50 Lakhs paid by her father was in fact part of the said demand. Though respondent No.2 admits that she was working in the company of one Aydin Farhoudi, but she claims that she was introduced by petitioner No.1 and she was made to work in the said company. She has nothing to do with the alleged scam committed by Aydin Farhoudi. She denied that on false

6 -

CRL.P No. 100781 of 2022

allegations she has filed a private complaint and that the learned Magistrate without any application of mind has referred it for investigation in violation of the directions given by the Hon’ble Supreme Court in the case of Priyanka Srivastava and another Vs. State of Uttar Pradesh and others¹ (Priyanka’s case). The allegations made against the petitioners are required to be established at the Trial and prays to dismiss the petition.

During the course of arguments, the learned counsel for petitioners argued and submitted that the learned Magistrate has not applied judicial mind before referring the complaint to the jurisdictional police for investigation. The complaint averments does not attract the provisions of Section 498-A, 504, 506, 406, 420 read with section 34 of IPC. Rs.50 Lakh sent by the father of respondent No.2 is investment made by him in the company of one Aydin Farhoudi of Belgium i.e. in the Crypto Currency named “Avesta”. After the said Aydin Farhoudi cheated several persons and left Bangkok, respondent No.2 fearing that she may also be proceeded against in respect of the

1 (2015) 6 SCC 287

7 -

CRL.P No. 100781 of 2022

said Crypto Currency Scam, has left Thailand. Making demand for permanent alimony and return Rs.50 Lakh, which is in fact invested by her father and with other terms, she is seeking divorce by mutual consent. By way of arm twisting, she has chosen to file a false complaint and same is being referred by the Trial Court for investigation and therefore, the petitioners are entitled for quashing of the proceedings. In support of his contentions, the learned counsel for petitioners has relied upon the following decisions:

i) Priyanka Srivastava and another Vs. State of Uttar Pradesh and others² (Priyanka’s case)

ii) Vikram Johar Vs. State of Uttar Pradesh and another³ (Vikram’s case)

iii) Babu Venkatesh and others Vs. State of Karnataka and another⁴ (Babu’s case)

iv) Sri. Sathya Sai Central Trust and another Vs. Sate of Karnataka and another⁵ (Sathya Sai Trust’s case)

v) Geeta Mehrotra and another Vs. State of Uttar Pradesh and another⁶ (Geeta case)

2 (2015) 6 SCC 287

3 (2019) 14 SCC 207

4 (2022) 5 SCC 639

5 2021 (6) Kar.L.J.667

6 (2012) 10 SCC 741

8 -

CRL.P No. 100781 of 2022

vi) Kahkashan Kausar @ Sonam and others Vs. State of Bihar and others⁷ (Kahkashan’s Case)

vii) Mohammed Shameer Vs. State of Karnataka and another⁸ (Shameer’s Case)

viii) Prabhavati Gujar and another Vs. State of Karnataka and others⁹ (Prabhavati’s case)

On the other hand, learned counsel representing respondent No.2 argued and submitted that when respondent No.2 stayed with petitioners at Bangkok, she was harassed and ill-treated by the petitioners for additional dowry and unable to bear the ill-treatment, she returned to her parents’ house. She got issued a legal notice to the petitioner No.1 and as the concerned police refused to receive the complaint, she filed a private complaint, which is being referred by the Magistrate to the jurisdictional police for investigation. The learned counsel for respondent No.2 further submits that the allegations made in the complaint are required to be established during trial and this is not a fit case for quashing the proceedings. In support of his contention, the learned counsel for respondent No.2 has relied upon the following decisions:

7 (2022) 6 SCC 599

8 2022 (3) KCCR 2485

9 (2022) 2 Kar.L.J.444

9 -

CRL.P No. 100781 of 2022

i) Jeffery J. Diermeier and another Vs. State of West Bengal and another¹⁰ (Jeffery’s case)

ii) State of Orissa and others Vs. Ujjal Kumar Burdhan¹¹ (Ujjal Kumar’s case)

iii) Teeja Devi @ Triza Devi Vs. State of Rajasthan and others¹² (Teeja Devi’s case)

iv) Munshiram Vs. State of Rajasthan and others¹³ (Munshiram’s case)

v) XYZ Vs. State of Gujarat and another¹⁴ (XYZ’s case)

vi) Rashmi Tondon and another Vs. The State of Karnataka and another¹⁵ (Rashmi’s case)

vii) Mr. Vijaykumar S/o. Late Mahalingappa Vs. The State by Lingadahalli P.S. and another¹⁶ (Vijaykumar’s case)

Heard the arguments and perused the records.

From the complaint averments, legal notice, reply

notice and rejoinders issued by the parties, it is evident that while respondent No.2 alleges that petitioners ill-treated and harassed her demanding dowry and also they have cheated her and also committed criminal breach of trust, petitioners have alleged that the behavior of respondent No.2 while she

10 (2010) 6 SCC 243

11 (2012) 4 SCC 547

12 (2014) 15 SCC 221

13 (2018) 5 SCC 678

14 (2019) 10 SCC 337

15 Criminal Petition No.6638 of 2021 DD 10.05.2022

16 Crl.P.No.3163/2021 C/w Crl.P.No.4322/2021 DD 01.09.2022

10 -

CRL.P No. 100781 of 2022

was living in the matrimonial home was very rude and inspite of taking good care of her and giving her all liberty to visit India and other countries, while she was staying in her matrimonial home and also in fact her family members also visited her, ultimately making false allegations, she has filed false complaint.

8.1. In the reply notice, the petitioners have alleged that respondent No.2 was having illicit relationship with Aydin Farhoudi and she is also part of fraud committed by him and after he fled from the country, she also left Bangkok and in order to get divorce, as an arm twisting measure, she has filed this complaint.

8.2. At the outset, the main ground urged by the petitioners for quashing the proceedings is that before filing the private complaint, petitioner has not complied with the directions given by the Hon’ble Supreme Court in Priyanka Srivastava’s case and in fact, she has also not filed any affidavit as required under section 154(3) of Cr.P.C. and without application of mind, the Trial Court has simply referred the matter to the jurisdictional police for investigation who in turn have issued notice under section

11 -

CRL.P No. 100781 of 2022

41-A of Cr.P.C. In fact, the petitioners have secured anticipatory bail.

8.3. In Priyanka Srivastava’s case while discussing

the tendency of falsely implicating the family members of the husband and any other type of cases, referring to section 154 of Cr.P.C. the Hon’ble Supreme Court has held that in case of cognizable offences, it is for the complainant to approach the concerned police and file complaint. If the concerned police fail to accept the complaint and proceed with the matter, then referring to the same, the complainant is required to approach the Higher Police Officers and file the complaint along with proof of complaint being filed before jurisdictional police only on the failure of Higher Police Officers also to take action, they are required to file private complaint under section 200 of Cr.P.C. and seek reference to police under section 156(3) of Cr.P.C. However along with the said complaint, they are required to produce copies of the compliant given to the jurisdictional police and also to the higher police officer along with proof of having given such complaint and it should be accompanied by an affidavit regarding the failure of the concerned police and superior

12 -

CRL.P No. 100781 of 2022

police officer to take action. Then only they can maintain application under section 156(3) of Cr.P.C.

8.4. Only after perusal of these materials, the jurisdictional Magistrate can refer the complaint to the police for investigation. Admittedly, in the present case, this procedure is not followed. Though in the complaint at Para XVII, the respondent No.2 has alleged that she approached the jurisdictional police i.e. APMC Police to file her complaint, however the concerned police requested her to come after two days and did not take complaint even after she approached them after two days and therefore she is filing the complaint. However, along with the complaint, she has not produced the copy of the complaint so given to the concerned police and also proof of having given such complaint. Admittedly, she has not approached the Higher Police Officer alleging that the jurisdictional police have failed to take her complaint and act in accordance with law.

8.5. Secondly, she has also failed to file her affidavit swearing to these facts. The Magistrate without application of mind and in ignorance of Priyanka Srivastava’s case has mechanically referred the matter for investigation under

13 -

CRL.P No. 100781 of 2022

Section 156(3) of Cr.P.C. to the concerned police, who in turn have registered the case and issued notice under section 41-A of Cr.P.C. to the petitioners. The very fact that respondent No.2 is not fair in her approach, indicates that in all probabilities by way of arm twisting method she has chosen to file private complaint to pressurize the petitioners to yield for her terms and conditions of securing divorce. There is also allegation by the petitioners that respondent No.2 was having illicit relationship with Aydin Farhoudi and this fact was brought to their notice by the wife of Aydin Farhoudi. These aspects are required to be examined at the divorce proceedings that may be initiated between the parties. At this stage, by not following the mandatory provisions of Section 154 and 156 of Cr.P.C. and the directions given by the Hon’ble Supreme Court in Priyanka Srivastava’s case, I hold that the continuation of these proceedings would amount to abuse of process of the Court.

8.6. Thus, from the above discussions, I hold that this

is a fit case to quash the proceedings. Of course, the parties are at liberty to agitate their dispute before the Family Court

14 -

CRL.P No. 100781 of 2022

or any other Forum available to them under law. Hence, I proceed to pass the following:

ORDER

The criminal petition is allowed.

The impugned proceedings in Crime No.62/2021 of APMC Yard Police Station, Belagavi (P.C.No.85/2021) on the file of the IV JMFC, Belagavi, as against the petitioners herein is hereby quashed.

In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/JUDGE

YAN