IMPORTANT POINT
The court emphasized the importance of complying with the preconditions for seeking investigation under Section 156(3) of Cr.P.C. and highlighted the protection under Section 465(2) of Cr.P.C., stating that violation or non-compliance of the preconditions would not make the investigation and the final report thereof non-est.

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) by the 1st accused in Crime No. 1911/2018 of Vaikom Police Station, Kottayam, now pending as C.C. No. 878/2019 on the files of Judicial First Class Magistrate Court-I, Vaikom. The prayer in the petition is to quash Annexure B final report and all proceedings in C.C. No. 878/2019.

2. Heard the petitioner in person, who alleged to have committed offence punishable under Section 406 of Indian Penal Code (‘IPC’ for short). The learned Public Prosecutor also was heard. Perused the relevant documents.

3. The crux of the case is as follows:

As per Annexure-A complaint, vide CMP No. 8213/2018, the wife of the petitioner/1st accused set criminal law in motion under Section 190 read with Sections 200 to 204 of Cr.P.C. before the Judicial First Class Magistrate Court-I, Vaikom, alleging commission of offence punishable under Section 406 of IPC by the accused. The allegation in the complaint is that the marriage of the 1st accused and the complainant was fixed on 08.04.2012 at St. Xavier’s Church, Kuruppunthara, Vaikom. Later marriage was solemnised on 14.04.2012 as per the religious rituals and the marriage also was registered. At the time of the marriage proposal, the accused herein demanded 75 sovereigns of gold ornaments and Rs. 50 lakh adjusting the same towards the family share of the complainant. Accordingly, Rs. 25 lakh was handed over on the date of betrothal and another Rs. 25 lakh was kept in fixed deposit in the joint names of the complainant and the 1st accused on condition that the same would only be used for the benefit of the complainant and children to be born in the wedlock. Further 75 sovereigns of gold ornaments were also given. The further case is that Rs. 25 lakh was deposited at Co-operative Bank, Pallippurathussery, Vaikom Taluk on 04.04.2012 by 25 separate fixed deposit receipts each of Rs. 1 lakh, in the joint names of the complainant and the 1st accused. It was alleged that the gold ornaments were entrusted with the 1st and 2nd accused as trustees. The specific allegation is that the F.D. receipts of 25 Nos. (Rs. 1 lakh each) were encashed by the 1st and 2nd accused without the knowledge and consent of the complainant and thereby committed breach of trust. Further the gold ornaments were also misappropriated. Police investigated the crime as directed by the Magistrate under Section 156(3) of Cr.P.C. and Annexure B final report was filed alleging commission of offence under Section 406 of IPC by the accused.

4. Now the petitioner would submit that no ingredients to attract offence under Section 406 IPC is made out and the complaint was filed without opting the alternative remedies available under Section 154(1) and 154(3) of Cr.P.C. Hence filing of private complaint and cognizance thereof were illegal and the same are liable to be quashed. In this connection decision reported in Babu Venkatesh and Others vs. State of Karnataka and Others, MANU/SC/0214/2022 : (2022) 5 SCC 639 is pointed out, where the Apex Court held as under:

“3. This Court has clearly held that, a stage has come where applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

4. In an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156(3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.

5. This Court has further held that, prior to the filing of a petition under Section 156(3) of the Cr.P.C. there have to be applications under Section 154(1) and 154(3) of the Cr.P.C. This Court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. Wi