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Daulat Mansingh Aher Vs. C.R. Bansi and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1286 of 1978
Judge
Reported in1980CriLJ1171
Acts Indian Penal Code (IPC), 1860 - Sections 107 and 211; Code of Criminal Procedure (CrPC) - Sections 178, 179, 202 and 482
AppellantDaulat Mansingh Aher
RespondentC.R. Bansi and Another
Excerpt:
.....raised by accused-petitioner - court held it has jurisdiction to try case as letter for demand of dowry was written from area under its jurisdiction - order challenged before high court - point raised was technical - no prejudice will be caused to accused nor on that count it could be said that trial is vitiated or will result in failure of justice - application dismissed. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a..........satpute, the learned counsel appearing for the petitioner contended before us that the alleged letter demanding dowry was written and posted from wadala where the accused resides and the said letter was received at agartala by the brother of the accused. therefore, according to the learned counsel, it will be the agartala court, which will have jurisdiction to try the complaint. he further contended that the complainant is a resident of andheri and, therefore, in any case, it will be the andheri court which will have jurisdiction and in no case the present metropolitan magistrate at dadar could have territorial jurisdiction to entertain and decide the present complaint. he also contended that even on merits, no prima facie case is made out, because the brother of the accused at.....
Judgment:

Dharmadhikari, J.

1. Respondent No. 1 C. R. Bansi, who is the father of Alka has filed the present complaint under section 4 of the Dowry Prohibition Act, 1961, in the Court of Metropolitan Magistrate, 29th Court, Dadar, Bombay. Before filing this complaint necessary sanction from the State Government was also obtained.

2. It appears from the record that the accused-petitioner filed an application dated 6th October, 1978 raising a contention that the said Court had no jurisdiction to entertain and try the case as the accused and the complainant were residing outside the jurisdiction of that Court. A contention was also raised that the complaint was barred by law of limitation and hence it was liable to be dismissed. These were the only contentions raised before the trial court. At this stage it is conceded by the learned Counsel that the complaint was filed within the period prescribed.

3. After hearing both sides, the learned Metropolitan Magistrate held that the complaint was filed within the period of limitation i.e. one year. He further found that the copy of the letter by which dowry was demanded shows that it was written from Bombay-31 and in view of the provisions of Sections 178 and 179 of the Code of Criminal Procedure, the Court has jurisdiction to try the case. The learned Magistrate further found that the local area of Bombay-31 comes within the jurisdiction of his Court and in view of this he dismissed the said application. It is this order which is challenged before us in this Criminal Application.

4. Shri Satpute, the learned Counsel appearing for the petitioner contended before us that the alleged letter demanding dowry was written and posted from Wadala where the accused resides and the said letter was received at Agartala by the brother of the accused. Therefore, according to the learned Counsel, it will be the Agartala Court, which will have jurisdiction to try the complaint. He further contended that the complainant is a resident of Andheri and, therefore, in any case, it will be the Andheri Court which will have jurisdiction and in no case the present Metropolitan Magistrate at Dadar could have territorial jurisdiction to entertain and decide the present complaint. He also contended that even on merits, no prima facie case is made out, because the brother of the accused at Agartala had no authority of power to demand dowry for and on behalf of the accused. It is pertinent to note that, such contentions were not raised before the trial Court.

5. So far as the first contention based on the challenge to territorial jurisdiction is concerned, in our opinion there is no substance in the said contention. As observed by the Supreme Court in State of Madhya Pradesh v. K. P. Ghiara, AIR 1957 SC 196 : 1957 Cri LJ 322, the venue of enquiry or trial of a case is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts therein are positively disproved, ordinarily the Court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under section 202, Criminal Procedure made in the complaint, it is quite clear that it is the case of the complainant that he received a letter from P. M. Aher his son-in-law and brother of the accused from Agartala. The said letter is dated 14th April, 1977 and was written to Shri P. M. Aher by the accused himself, in his own handwriting from Bombay demanding the dowry of Rs. 30,000/- from him and also transfer of the fields in the name of his son-in-law or father in marriage, with Alka, complainant's daughter.

6. In para 3 of the complaint, the complainant had made a reference as to how the marriage was being settled and he was busy with making preparations for the marriage. Thus from the averments made in the complaint, it is quite clear that the letter was written by the accused from Bombay on 14th April, 1977. It is not disputed before us that the accused resides at Wadala in Bombay and the letter was written and posted from that place. It is also not disputed that Wadala is within the local jurisdiction of Bombay-31. Obviously therefore the alleged letter demanding dowry was written and sent from Wadala, Bombay-31. This letter though addressed to Shri P. M. Aher, brother of the accused, P. M. Aher in his turn forwarded the same to the complainant. It is the case of the complainant that by this letter the dowry was demanded, either directly or indirectly. The complainant is residing at Andheri and he received the said letter at Andheri.

7. It is well settled that while dealing with such question under the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, normally it will have to be presumed at this stage, that the averments made in the complaint are true. If this is so then obviously in the present case on the allegations made in the complaint it could be said that the demand was made from Wadala, Bombay-31 from where the letter ws written and posted and also at Andheri where the letter was received by the complainant. In this view of the matter in our opinion, the learned Magistrate was right in coming to the conclusion that his court had jurisdiction in view of the provisions of Sections 178 and 179 of the Code of Criminal Procedure.

8. In support of his contention Shri Satpute was relying upon a decision of Madras High Court in AIR 1948 Mad 292 : 49 Cri LJ 335. In re T. M. Sivaprakasam Pillai and a decision of Allahabad High Court in ILR (1894) 16 All 389, Queen-Empress v. Sheo Dial Mal. However, the said decisions are obviously distinguishable on facts. In T. M. Sivaprakasam Pillai's case the Madras High Court was concerned with an offence under section 211 I.P.C. and in that context it was held that offence under section 211 was complete when letter reached its destination, and not thereafter. In Queen-Empress v. Sheo Dial Mal's case the Allahabad High Court was dealing with a case under section 107 I.P.C. i.e. abetment; and in that context the High Court held that the offence of abetment by instigation is complete as soon as the contents of such letter became known to the addressee and therefore such offence is triable where the letter is received. Such is not the position in the case before us.

9. Section 4 of the Dowry Prohibition Act, 1961, reads as under :

'If any person, after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both; Provided that no court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government may, by general or special order, specify in this behalf.'

What is made punishable under this provisions is the demand itself, whether direct or indirect, from the parents of a bride or bridegroom. On the averments made in the complaint the demand is made by the accused by writing a letter from Wadala, Bombay-31. This demand was made through his elder brother who is the son-in-law of the complainant and resides at Agartala. From Agartala the said letter of demand was forwarded by the son-in-law of the complainant to Andheri, Bombay where the complainant is residing. Therefore the demand by accused was not made at Agartala. He had only used the good offices of his elder brother to forward the letter. Instead of writing a direct letter to complainant demanding dowry, the demand was made through the elder brother, who is residing at Agartala. Still the demand is by accused and is made from Wadala at Bombay. The demand became complete when the complainant received letter at Andheri, Bombay. Hence the dowry was demanded at Bombay. The offence was party committed at Wadala, Bombay, from where dowry was demanded. It was also partly committed at Andheri, Bombay, where the complainant received the demand letter. It is further alleged by the complainant in the complaint that the marriage of Alka which was almost settled, could not take place due to the demand of dowry made by the accused. This consequential result or consequence of the demand also took place at Bombay. Wadala is within the local jurisdiction of Metropolitan Magistrate, Dadar. Letter of demand was actually sent from Wadala, Bombay. Hence in any case it can safely be said that offence as alleged is partly committed at Wadala also. Though a contention was raised before the trial court that neither accused nor complainant are residing within the jurisdiction of Dadar Court, now it is an admitted position that accused resides at Wadala.

10. Even if it is held that offence became complete when complainant received letter at Andheri, Bombay, still it will the triable by Bombay Court. Whether it is Dadar or Andheri Court will not make any difference. On the other hand we are told that Dadar Court is nearer to the residence of accused. The point raised is too technical and no prejudice will be caused to the accused nor on that count it could be said that trial is vitiated; or will result in failure of justice. Hence there is no substance in this contention.

11. So far as the merits of the case are concerned, in our opinion, this is not the stage wherein, it could be gone into. The trial is at the threshold and the evidence is yet to be recorded. In these circumstances it will not be fair nor proper to scrutinise the merits of the matter and then reach a final conclusion at this stage in itself. The accused will have an ample opportunity to put forward his defence before the trial court. He is at liberty to raise all such contentions which he is entitled to raise in his defence before the trial court. In the view which we have taken, there is no substance in this criminal application. The Criminal Application fails and is dismissed.

12. At this stage an oral request is made for grant of leave to file an appeal to the Supreme Court of India. Leave refused.

13. Application dismissed.


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