JUDGMENT AND ORDER :

1. Mr. B.D. Das, learned Sr. Counsel for the petitioner and Mr. C. Baruah, learned counsel for the respondent were heard.

2. This petition under Section 482 CrPC has been filed praying for quashing the complaint and the criminal proceeding in CR Case No. 224/2016, arising out of such complaint pending in the Court of learned Judicial Magistrate, First Class, Dhemaji.

FACTUAL BACKGROUND

3. The respondent Laxmi Gupta was wedded to Om Prakash Sahu (since deceased) on 11.05.2014. However, they could not pull on together smoothly and the marital boat moved into rough weather giving rise to various litigations between the parties. The respondent Laxmi Gupta lodged a complaint against the husband and other members of his family under Section 406/420/34 IPC, on the basis of which CR Case No. 48/2014 was registered. It was alleged in the said complaint that the parents of the complainant gave him Rs. 1,60,000/- as gift at the time of marriage. The said amount was given for purchasing furniture and a motorcycle respectively and the money was entrusted to the husband of the complainant. But, the husband of the complainant did not purchase those articles. Subsequently, the husband of the complainant in connivance with other members of the family demanded further Rs. 2,00,000/- and the complainant was subjected to torture for such demand. Eventually, the complainant was thrown out of the matrimonial home forcing her to take shelter in her parents house. It was also stated in the complaint, that besides Rs. 1,60,000/- the other articles narrated in the complaint were also given to the complainant and all those articles and money were retained by her husband and other members of the family and the articles were refused to be returned. Therefore, the complainant lodged the complaint aforementioned. Learned Judicial Magistrate upon receiving such complaint took cognizance and issued process.

4. The four accused persons named in the complaint filed a criminal petition under Section 482 CrPC before this Court praying for quashing the complaint, as in the meantime, the husband of the complainant died. The said criminal petition was registered as Crl. Pet. No. 98/2015 by this Court. While issuing notice of motion, this court passed an interim order staying further proceeding of CR Case No. 48/2014. The said criminal proceeding having been stayed, the complainant/respondent filed another complaint on the same set of facts and allegation under Section 406/493 IPC, which was registered as CR Case No. 224/2016. The present criminal petition under Section 482 CrPC has been filed for quashing the second complaint and the CR No. 224/2016 arising out of the second complaint. Although, in the earlier complaint, the husband was also made an accused, in the subsequent complaint, the husband was not made a party because in the meantime he had expired.

5. The respondent by filing a counter affidavit stated that the earlier complaint in CR No. 48/2014 was dismissed for default by order dated 31.10.2015, because of absence of both the parties, as the stay order passed in Crl. Pet. No. 98/2015 was never communicated to the learned Magistrate and therefore, the complaint in CR No. 48/2014 was no longer pending and the CR No. 224/2016 arose out of a subsequent complaint. There is however, no dispute with regard to dismissal of CR Case No. 48/2014

ARGUMENTS OF THE LEARNED COUNSEL

6. On the above factual matrix, learned Sr. Counsel, Mr. B. Das placing reliance on a decision of Himachal Pradesh High Court in H.P. Agro Industries Corporation vs. M.P.S. Chawla, 1998 (92) CompCas 686 HP and T.T. Anthony vs. State of Kerala, (2001) 6 SCC 181, submitted that dismissal of the complaint resulted in acquittal of the accused/ petitioners and therefore such order of dismissal was amenable to appeal under Section 378 (4) CrPC and no second complaint on the same set of facts is maintainable. The Himachal Pradesh High Court while dealing with the consequence of dismis

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