The central legal point established in the judgment is that in a matrimonial dispute, the offence of theft under Section 380 IPC requires the presence of dishonest intention and exclusive possession of the movable property, which was not established in this case.

VIPIN SANGHI, J.

1. The petitioner has preferred the present writ petition to seek the quashing of FIR 1250/2015 registered under Section 380 IPC at PS Bindapur and the proceedings arising therefrom. The petitioner also seeks the quashing of the order dated 11.01.2016 passed by the learned MM, Dwarka Courts in the said case, whereby NBWs were issued against the petitioner/accused.

2. The background facts may be noted. The aforesaid FIR has been registered on the complaint made by the petitioner’s wife. The petitioner and respondent No. 2 (as per amended memo of parties) were married on 16.01.2012 at Kolkata. The petitioner and the complainant jointly purchased the property bearing no. U-66, Subash Park, Uttam Nagar on 18.11.2013. A copy of the sale deed has been placed on record, which is in the joint names of the petitioner and respondent No. 2.

3. It appears that matrimonial disputes arose between the parties. The petitioner states that respondent No. 2/complainant without informing him left the matrimonial home along with her parents by taking all her belongings, gold ornaments, gifts of the petitioner and grocery articles on 11.07.2015. The petitioner lodged a complaint with PS Bindapur vide DD 14A in this respect. Respondent No. 2 filed a divorce petition vide Mat No. 239/2015 sometime in August 2015 before the District Judge, Sealda, West Bengal under Section 27 of the Special Marriage Act.

4. The petitioner claims that on 08.08.2015, the complainant came to the house of the petitioner and abused him and also threatened the petitioner to file a complaint under Section 498A IPC. The petitioner reported the said threat to the local police vide DD 35A. On 31.08.2015, the petitioner intimated PS Bindapur that he is shifting from Delhi to another city and hence he is locking the flat at Uttam Nagar while taking away all his belongings via Movers and Packers.

5. On 02.09.2015, respondent No. 2 filed the complaint in question on which FIR 1250/2015 was registered at PS Bindapur under Section 380 IPC. The allegations made by the complainant in the said FIR read as follows:

“Dear Sir, request you to please take immediate action against my husband Mr. Subhajit Banerjee resident of U-66, Subhash Park, 2nd Floor, New Delhi-110059, I have filed the matrimonial suit for the dissolution of marriage in West Bengal Kolkata. Today, when I returned back from office, I found that he had locked the iron door, (new lock) somehow I managed to break the lock with the help of a mechanic and when went inside, I found that all my belongings i.e. bed, cloths, almirah, documents, pan, passport, jewellery, washing machine, oven, microwave, all educational certificates, fridge, dressing table, inverter, gas geyser, AC, Fan, lights, sandals, everything from head to toe has been stolen. I don’t have a single cloth to wear, signed cheques of my father and me. He has theft, robbed everything, broken my room lock. I am alone here in Delhi and till Saturday 29th August, 2015 everything was in place. On Sunday I was at my friends place as he threatened me of life. I called my parents and they are supposed to come on 1st September, 2015. I have lodged many complaints, have done medical also as I was very badly beaten by him even if he has informed the police station for his departure to the P.S. who has given him the authority to break my room lock and take all and belonging without information. Request you to please take strict action immediately. Please initiate the proceedings against Subhajit upon treating this complaint as a FIR against him. Husband Mr. Subhajit Banerjee S/o Shanti Banerjee, 7838356967. Thanking you, Doyel Chakraborty 7838293608, U-66, Subhash Park, 2nd Floor, Near Shukar Bazar Chowk, Delhi-59.”

6. The submission of learned counsel for the petitioner is that on a reading of the FIR, no offence under Section 380 IPC is made out against the petitioner. This is for the reason that the premises in question was jointly owned and possessed