ORDER

Date : 16.10.2023 Heard Mr. A.K. Sahu, learned counsel for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State/respondent No.1.

2. This is an application under Section 482 Cr.P.C. praying for quashing the impugned order dated 13.05.2022 passed by the JMFC, Lakhimpur, at North-Lakhimpur in C.R.(W) Case No. 43/2021, wherein the learned Magistrate took cognizance against the petitioner under Section 406/352 IPC and summons were issued.

3. The brief facts of the case is that the petitioner is the wife of the respondent No. 2, who has filed a complaint case against the petitioner along with her parents alleging that from the date of their marriage, the petitioner had a hatred feeling towards the respondent No. 2 as because the petitioner had love affair with somebody else prior to her marriage and the parents of the petitioner solemnized her marriage with the respondent No. 2 forcefully against her will. In spite of having such illicit relationship with somebody else, the respondent No. 2 advised the petitioner to remain as his wife. Accordingly, the petitioner remained in the house of the respondent No. 2 for a month. Thereafter, she went to her matrimonial house and involved in an illicit relationship with her paramour and asking the respondent No. 2 to give her divorce. On being denied to give divorce, the petitioner became angry and started to create nuisance in the house of the respondent No. 2.

4. It was also alleged that the petitioner has sold out the ornaments given to her on the day of marriage. After nine months of their marriage, a male child was born out of their wedlock. According to the petitioner, the child born to her is not of the respondent No.2 and accordingly sought for a divorce. It was further alleged that the peititoner had been in the house of her parents since 16.10.2021 and informed the respondent No.2 that she had left the house of the respondent No. 2 and at the time of leaving the house of the respondent No. 2, the petitioner committed theft of money amounting to Rs.90,000/-. Subsequently, a complaint case was filed by the respondent No. 2 against the petitioner and her parents.

5. On receipt of the complaint case, the learned JMFC, recorded the statement of the complainant under Section 200 Cr.P.C. and one Amina Khatum as well as mother of the respondent No. 2 under section 202 Cr.P.C. and on consideration of their statements, learned Magistrate took cognizance of the case against the present petitioner and summons were issued to her.

6. Learned counsel for the petitioner has submitted that the allegations made in the complaint case are absolutely false and concocted one. The complaint petition was filed with an ulterior motive to deprive the petitioner from her legitimate claim. The petitioner has filed an application under Section 125 Cr.P.C. against the respondent No. 2 claiming maintenance for herself and her child before the court of learned SDJM, Biswanath much prior to filing of the complaint case. The learned SDJM as an interim measure allowed maintenance of Rs.2000/- to the petitioner to be paid by the respondent No. 2. In order to avoid the order of maintenance, the respondent No.2 filed the complaint in question with a manufactured story.

7. It is also the submission of learner counsel for the petitioner that the learned JMFC ought not to have taken the cognizance of the commission of an offence under section 406 IPC as there is not a single whisper in the complaint or in the statement of the witnesses recorded under section 202 Cr.P.C., to the effect that the money alleged to have been stolen was entrusted to the petitioner. In order to attract the offence under section 406 IPC, the basic ingredient is to entrust the money or property to the accused. In the instant case, the very basic ingredients of the said section is missing and as such the impugned order of taking cognizance under section 406 IPC is not sustainable in law.

8. The learned counsel f