JUDGMENT R. C. Deo Sharma, J. 1. THESE two connected applications under section 482 CrPC raise several common questions of law and fact and consequently they have been heard together and are proposed to be disposed of by a common judgment. The main parties in the applications are also common. 2. KUMARI Sunita (now Smt. Sunita Agarwal) daughter of opposite party no. 1 Prem Pal Agarwal was married to Pradeep Kumar Agarwal who is an applicant in both these cases and is son of Kailash Nath Agarwal/applicant no. 1. This marriage had taken place on 10-10-1978 at Lucknow. Prior to that the usual ceremonies of engagement and Tilak had also taken place. The matrimonial alliance, however, could not continue for long and it was alleged on behalf of opposite party no. 1 that the husband, father-in-law and mother- in-law of his daughter had been ill-treating and rather torturing his daughter with a view to elicit more dowry than was paid before, during or after the marriage. She was accordingly sent back to her parents' house with ordinary clothes on her person and a few more Sarees etc. but all the ornaments and other presents as also the cash offered to her and the bride-groom and the parents either as consideration of the marriage or otherwise had been retained. A demand was said to have been made by the opposite party no. 1 and his daughter for the return of the ornaments and other articles given in the dowry but nothing was returned and consequently alleging that the husband, father-in-law and mother-in-law of his daughter had mis-appropriated the property and had converted the same to their use, a complaint was filed under section 406 IPC by the opposite party no. 1 arraying all the aforesaid three persons as accused. This was registered as a Criminal Case No. 3021 of 1979 and the matter was pending in the court of Sri K. M. Lal Agarwal Special Judicial Magistrate, Lucknow. It is this complaint which the applicants in Criminal Misc. Case No. 676 of 1981 have sought to be quashed. The contention was that no offence whatsoever has been made out on the allegations made and it was abuse of the process of the court if the proceedings were allowed to continue. In the other case, namely, Criminal Misc. It is this complaint which the applicants in Criminal Misc. Case No. 676 of 1981 have sought to be quashed. The contention was that no offence whatsoever has been made out on the allegations made and it was abuse of the process of the court if the proceedings were allowed to continue. In the other case, namely, Criminal Misc. Case No. 2753 of 1981 the complaint filed by the opposite party was under sections. 3 and 4 of the Dowry Prohibition Act. After stating the facts relating to the marriage and disruption of the family life the complainant alleged that specific demands were made by the husband, his parents, sisters and other relations and almost under coercion and threat of displeasure during the performance of the marriage and thereafter the complainant had to meet the illegal demands and pay cash and offer various other articles as consideration for the marriage. The various types of property including the ornaments and clothes given as dowry or as presents were detailed in the schedules appended to the complaint. The applicants in this application therefore, alleged that the allegations made in the complaint did not make out a case under sections 3 and 4 of the Dowry Prohibition Act. It was also denied that any such demand was made as a matter of fact and contending that by filing the complaint the complainant was abusing the process of the court it was prayed that the complaint may be quashed. 3. COUNTER affidavits have been filed in both the cases on behalf of the opposite party no. 1 and a rejoinder-affidavit has also been filed in Cr. Misc. Case No. 2753 of 1981 relating to the Dowry Act. Learned counsel appearing in both these cases have been heard at considerable length. 4. THE main stress of the learned counsel appearing for the applicants in these cases has been on the point that assuming what the complainant had stated was correct and various ornaments, clothes and other articles had been given as presents to the bride, bride-groom and other members of the family, no case of entrustment of these articles to the accused persons could be said to have been made out on the allegations made in the complaint with the result that an offence under section 406 IPC could not be made out against them. It has not been denied that the ornaments, Sarees and other property which are meant for the exclusive use of the bride may constitute property belonging to her. But as regards the necessary ingredients for constituting an offence under section 406 IPC it was contended that there was no entrustment of these properties either to the husband or the father-in-law or mother- in-law of the bride and consequently any question of breach of trust or misappropriation of property could not arise. In other words, the contention was that even if any of the properties belonged exclusively to the bride she could have claimed to recover the same in a civil suit on proof of the necessary facts but the applicants could not be prosecuted for the offence under section 406 IPC. Reliance was placed on a Full Bench decision of the Punjab and Haryana High Court in Vinod Kumar Sethi v. State of Punjab, AIR 1982 Punjab and Haryana 372 (FB). After considering a large number of authorities on the point the court had held in that case that the concept of entrustment of property belonging to the bride or to the bride and husband jointly or to other members of the husband's family is absolutely incompatible with the true nature of the conjugal relationship between the husband and the wife and the concept of matrimonial home. Articles given at the time of the marriage or before or after the marriage as presents to the bride, the bridegroom or the parents of the bride-groom could fall into three categories. THE first category related to the property given to the bride and meant for her exclusive use and to this category would belong the ornaments, Sarees and other articles of personal use meant for the bride. THE second category related to property given for the joint use of the wife and the husband or even of the spouse and other members of the husband's family. This was like furniture, electrical gadgets and similar other things of common use. THE third category could be of presents to the husband or the parents-in-law or other members of the family which would be in the nature of articles given for their respective exclusive use. Now the third category of articles could very well constitute the individual property of the persons for whose use it was given. THE third category could be of presents to the husband or the parents-in-law or other members of the family which would be in the nature of articles given for their respective exclusive use. Now the third category of articles could very well constitute the individual property of the persons for whose use it was given. On this property the ownership or domain of the bride could be negatived. The rest of the property falling under categories nos. 1 and 2 was according to the Full Bench decision meant for the use of the bride or other members of the family as the case may be and over that the family would be considered to be in joint possession. This would be so even in respect of the property exclusively meant for the use of the bride and over which she had exclusive ownership because that was considered to be the true concept of matrimonial home. Even though the ownership in the ornaments and Sarees of the bride may remain with her but so far as possession was concerned, if it was brought to the family home the possession would be joint unless by express written agreement there was an entrustment of the property of the bride to other members of the family. The main emphasis was about the true concept of matrimonial home and it was because of the very nature of things in a matrimonial home that the possession should be regarded as joint and not exclusive possession of any one member even though the physical custody of the property may remain with any one or more of the members for the time being. The nature of custody and possession of the property could change by a specific mutual agreement indicating specific entrustment of the property to any particular member of the family. 5. A distinction was drawn between the possession of the spouse and the possession over property of other members of the family. The nature of custody and possession of the property could change by a specific mutual agreement indicating specific entrustment of the property to any particular member of the family. 5. A distinction was drawn between the possession of the spouse and the possession over property of other members of the family. Section 405 IPC which defines criminal breach of trust begins with the word Whoever (sic) of this word 'Whoever', it was found, were included parents-in-law, brothers-in-law and sisters-in-law and other close relations of the husband and these members being not covered by the presumption of joint-ness of custody over property in a matrimonial home would undoubtedly form a different category but even in their case the basic ingredients of entrustment or passing of dominion over property must be satisfied in order to bring it within the ambit of an offence under section 406 IPC. These members of the family would also not be presumed to be entrusted with the dominion over property nor would the mere factum of bringing the dowry or other articles forming traditional presents into the family home of the husband by itself constitute such entrustment or passing of dominion to those persons. It was found that the mere living together of the couple in the joint family could not be legal equivalent of entrustment per se of the individual property of the wife to the parents-in-law or other close relations within the family homestead. According to the Full Bench any such entrustment or passing of the dominion over the dowry to the relations of the husband could only be by a subsequent act of conscious volition. This must be specifically alleged and proved as a fact and the matter could not rest on presumptions simply because the parents-in-law were living with the spouse under a common roof. Accordingly it was further held that if an irate wife in a tantrum abandons the matrimonial home, the property does not in the eye of law become entrusted to the parents-in-law or other close relations of the husband. No presumption of entrustment or passing of the dominion over property could be raised in such a situation so as to come within the mischief of criminality for breach of trust. 6. No presumption of entrustment or passing of the dominion over property could be raised in such a situation so as to come within the mischief of criminality for breach of trust. 6. ANOTHER proposition of law laid down in the aforesaid Full Bench decision was that the same set of facts with relation to giving dowry or other presents could not constitute an offence under the Dowry Prohibition Act and at the same time under section 406 of the IPC. The distinction was based on the simple reason that dowry as defined in the Act does not include traditional presents or offerings made out of love and affection for the bride at or about the time of marriage but dowry constituted that property which was given as a consideration for the marriage. The definition of the term 'dowry' itself will make the position clear. If therefore any articles had been given as a consideration for the marriage, they cannot be said to be articles entrusted to a particular person with the option of calling them back on demand at any time. Any property given as consideration should in law be presumed to be given to the person from whom the obligation for which the consideration is paid flows. This would be inconsistent with the concept of entrustment which implies that the ownership remains in the person giving the property and he has a right to take back that property at an appropriate time from the person to whom it is for the time being entrusted. The Wo things therefore, cannot go together. If the circumstances and facts alleged constitute an offence of dowry the same facts would not constitute an offence under section 406 IPC. Learned counsel for the opposite party tried to make a distinction in respect of the property which was the exclusive property of the wife, as for example, ornaments and Sarees given for her personal use either by the parents or the husband and parents-in-law. Learned counsel for the opposite party tried to make a distinction in respect of the property which was the exclusive property of the wife, as for example, ornaments and Sarees given for her personal use either by the parents or the husband and parents-in-law. There is no doubt that such property would constitute the exclusive property of the bride and of which she can legitimately be said to be exclusive owner but the mere fact of ownership does not establish that the property if for the time being it remains in the hands of the husband or the parents-in-law, is in any legal sense entrusted to them so as to attract the criminality contemplated under section 406 IPC. Entrustment should be a conscious act which should be alleged and proved as a fact. If all is well in the family and the relations are cordial, it cannot be imagined that the ornaments or even personal Sarees of the bride if for the time being kept in the custody of the mother-in-law, could be said to have been "entrusted" to her. This is the normal state of affairs in a matrimonial home that the property belonging to any one of the members is kept in the house in the custody of any other member of the family and that is regarded as a joint possession of the members. By the mere presence of strained relations between the bride and others the nature of custody would not automatically change, nor would it stand converted into an entrustment within the meaning of the penal provisions of section 406 IPC. Something further is to be done in order to constitute entrustment of property. This would, however, not mean that the bride is remedyless. The property being her exclusively owned property she can certainly claim it back in case she so chooses after the relations get strained or even otherwise, but that remedy should be by a civil suit or in accordance with the provisions laid down in the Dowry Prohibition Act or Hindu Marriage Act, as the case may be. Learned counsel for the opposite party placed reliance on an earlier decision of the same High Court in Bhai Sher Jang Singh v. Smt. Virinder Kaur, 1979 CrLJ 493 . Learned counsel for the opposite party placed reliance on an earlier decision of the same High Court in Bhai Sher Jang Singh v. Smt. Virinder Kaur, 1979 CrLJ 493 . That decision has, however, been noticed in the Full Bench case of Vinod Kumar (supra) and by :and large the propositions of law laid down therein have been accepted as correct. The concept of matrimonial home and joint possession over property has, however, not been considered in Bhai Sher Jang Singh's case in the perspective in which it has been examined in its fullest details in the Full Bench case. Bhai Sher Jang Singh's case was decided on its own facts. Paras 1 and 3 of the report will show that there was a clear averment in the complaint that as a dutiful daughter-in-law she reposed full faith in her parents-in-law and had entrusted all the ornaments and other property to them for safe custody. Following observations in paras 12 and 14 of the report may also be noticed in this context : "...............When she makes an allegation in the complaint that either her husband or her parents-in-law had converted to their own use the ornaments forming the part of her stridhan which she bad entrusted to them, the court has to give legal effect to such allegation and to assume that such ornaments had been made the subject matter of criminal breach of trust..............." "...............There is a definite allegation in the complaint that the ornaments given to the respondent at the time of her marriage were entrusted by her to the petitioners, some of which they refused to part with when she made the demand.................." It was in these circumstances that the court in Bhai Sher Jang Singh's case refused to quash the complaint. 7. RELIANCE was also placed by the learned counsel on an unreported decision of this court rendered by a learned Single Judge in Cr. Misc. Application No. 3285 of 1980 connected with Cr. Misc. Application No. 3615 of 1981-Dr. Suresh Kumar Yadav v. Smt. Rekha Yadav decided on 20th November 1981. There too a specific averment was made in the complaint that the ornaments, clothes and other articles were entrusted to the accused persons. In the instant case, however, there is no such clear averment and all that can be relied upon in this context is contained in para 15 of the complaint. There too a specific averment was made in the complaint that the ornaments, clothes and other articles were entrusted to the accused persons. In the instant case, however, there is no such clear averment and all that can be relied upon in this context is contained in para 15 of the complaint. It reads like this "15. That the aforesaid articles and belongings which as Streedhan of the complainant's daughter totality amounting to Rs. 41,497/- which was given to the complainant's daughter from her parents to the complainant's daughter, at Lucknow and was entrusted to the accused persons in the manner aforesaid and thereby the accused persons carried dominion over the said property in the manner aforesaid illegally and dishonestly in order to misappropriate and convert the aforesaid property to their own use in utter violation of direction of law and illegally and willfully did not return to the complainant's daughter and thereby illegally retained by the accused persons and have committed criminal breach of trust in doing so." 8. THE averment is too vague as there is nothing in the complaint to indicate the manner aforesaid referred to in para 15. If there is anything relevant in this connection it may be in para 5 preceding and para 16 following where it was said that the accused persons carried the property with them to Biswan or that the articles and belongings in its entirety were taken away by the accused in their custody with no right of their own and dishonestly misappropriated. This did not in any manner constitute entrustment within the meaning of section 405 or 406 IPC. In the context of facts of the instant case therefore, the law laid down by the Full Bench in the case of Vinod Kumar is to be preferred and with respect to the learned Judges deciding the case, if I may say so, I agree with the observations made in that case. 9. IT has not been disputed that the opposite party no. 1 has on almost similar allegations already filed a complaint under the Dowry Prohibition Act against all these three applicants and some other persons, being their close relations, and that complaint is still pending and is also the subject-matter of proceedings under section 482 CrPC in the connected Cr. Misc. Case No. 2753 of 1981. 1 has on almost similar allegations already filed a complaint under the Dowry Prohibition Act against all these three applicants and some other persons, being their close relations, and that complaint is still pending and is also the subject-matter of proceedings under section 482 CrPC in the connected Cr. Misc. Case No. 2753 of 1981. As already observed, it has also been found in Vinod Kumar's case that an offence under the Dowry Prohibition Act and under section 406 IPC both could not be made out on the basis of the same set of facts and the basis for this observation lies in the definition of the word 'dowry' in section 2 of the Dowry Prohibition Act. The main thrust in the definition of the term 'dowry' is on the fact that the property which is the subject-matter of dowry should be given or agreed to be given at or before or after the marriage as a consideration for the marriage. By way of explanation to the definition of the term 'dowry' it has been clarified that any presents made at the time of the marriage in the form of cash, ornaments, clothes or other articles would not be demed to be dowry within the meaning of the term unless they were made as consideration for the marriage. If, therefore, any article has been given as dowry it should be a consideration for the marriage and naturally it could not be said to be a property entrusted to another within the meaning of section 405/406 IPC. In this view of the matter, the complaint under section 406 IPC was clearly not maintainable at least in respect of articles which can be the subject-matter for constituting an offence under the Dowry Prohibition Act. IT may also be observed in this connection that all the property detailed in the schedules to the complaint is not such which could be said to be dowry within the meaning of the Dowry Prohibition Act but as regards that property also which is outside the definition of the term 'dowry' the fact remains that in view of the decision in Vinod Kumar's case with which I respectfully agree, it cannot be said that the property was entrusted within the meaning of section 405/406 IPC to the husband or the parents-in-law of Smt. Sunita although the civil remedy was certainly available to her. 10. 10. REGARDING the other complaint under (he Dowry Prohibition Act, learned counsel appearing for the applicants in that case has argued that looking to the definition of the term 'dowry' in section 2 and the ingredients of the offence under sections 3 and 4 of the Dowry Prohibition Act an offence could not be said to have been made out on the allegations made in the complaint. A reference to the complaint which is Annexure 1 to that application would indicate that the demand for the dowry was made at various stages. In the first instance, a demand for a large size Kelvinator fridge was made at the time of the Goad ceremony. A demand for Rs. 15000/- cash and certain Sarees etc. for the mother-in-law was said to have been made on the occasion of the Tilak ceremony. This amount was, however, reduced to Rs. 5000/- on the intervention of an Advocate who was; a friend of the complainant's family. Again, at the time of Bidai ceremony i.e. before the bride was to leave the parents home, various demands were made to the tune of more than Rs. 40000/- in cash and kind. The demands were partly satisfied on the various occasions during Goad, Tilak, marriage and Bidai but not fully and this resulted into the strained relations between the bride and her father on the one hand and the bride-groom and his parents on the other. Ultimately, it ended in the departure of the bride to her parent's house in ordinary wearing apparel with a few more Sarees etc. in her attache case but no ornaments or other articles of personal use given to the bride were returned to her by her in laws. On the facts alleged, therefore, an offence is prima facie made out. The contention that an offence would not be made out: unless the parties had agreed to pay and give cash and various articles as consideration for the marriage, is no more available in view of the recent pronouncement of the Honourable Supreme court in L. V. Jadhav v. Shankerrao, AIR 1983 SC 1219 . The matter has been set at rest and looking to the allegations made in the complaint an offence is prima facie made out so as to sustain the maintainablity of the complaint. The rest is a matter of proof by appropriate evidence. The matter has been set at rest and looking to the allegations made in the complaint an offence is prima facie made out so as to sustain the maintainablity of the complaint. The rest is a matter of proof by appropriate evidence. In the circumstances, therefore, there is absolutely no justification for quashing the complaint for an offence under the Dowry Prohibition Act instituted after duly obtaining the sanction of the District Magistrate under the proviso to section 4 of the said Act although the other complaint under section 406 IPC against the three applicants based on the averments as it deserves to be quashed as it would amount to abuse of the process of the court if the applicants are prosecuted for that offence. In the result, therefore, Criminal Miscellaneous Case No. 676 of 1981 is allowed and the proceedings in Criminal Case No: 3021 of 1979- Prem Pal Agarwal v. Kailash Nath Agarwal and others u/sec. 406/109/114 IPC pending in the court of the Special Judicial Magistrate, Lucknow, are quashed. 11. CRIMINAL Miscellaneous Case No. 2753 of 1981 is however dismissed. The stay orders earlier granted shall stand vacated.