Judgment :- 1. This case reveals the story of distrust and acrimony between a well-to-do couple. They fell out with each other and the husband took another girl as his second wife without divorcing the first one, seeking legal justification under the personal law which governs them. But the first wife did not remain silent, as she launched the prosecution against the husband for criminal breach of trust of the cash and gold entrusted to him. The husband denied the allegations generally, but owned that there was entrustment of part of the claim and contended that he had accounted it to the wife. The trial court accepted his defence and acquitted him. Untired by the tribulations in prosecuting a long drawn out legal battle, and undeterred by the acquittal, the first wife has come to the High Court with this appeal for which she had obtained special leave. 2. At the time of their marriage in 1975, the accused (husband) was a House Surgeon at Alleppey and the appellant was a girl around sixteen who was the youngest daughter in an affluent family in north Malabar. Friends and relatives of the bride presented her with fabulous marriage gifts which included gold coins as well as gold ornaments. The appellant's case is that she had taken ornaments weighing 16 sovereigns for her daily use and entrusted the balance to her husband for safe custody. The young couple shifted their residence to the first floor of a nursing home building at Irikkur and two children were born to them. In 1980, the accused raised a claim that his wife's share in her mother's properties should be given to her. The dispute over that claim was finally settled on the mediation of Sri. P. Mustaffa, a senior Advocate of Cannanore. As per the settlement, cash for Rs. 10,500/ -and gold for 221/2 sovereigns were given to the accused as custodian of his wife's properties. The feud between the couple took shape when the appellant got reports of her husband's flirtations with some female nurses in his nursing home. It grew up steadily both belching acrid fumes at each other, and finally snowballed into the present litigation. 3. 10,500/ -and gold for 221/2 sovereigns were given to the accused as custodian of his wife's properties. The feud between the couple took shape when the appellant got reports of her husband's flirtations with some female nurses in his nursing home. It grew up steadily both belching acrid fumes at each other, and finally snowballed into the present litigation. 3. The complaint filed by the appellant mainly revealed the allegation that the gold entrusted to the accused in 1975 and the cash and gold entrusted to him in 1980 have not been returned to her as he had misappropriated them. The Chief Judicial Magistrate, who framed a charge for the offence under S.406 of the IPC, finally found that there is no reliable evidence to prove the entrustment of gold during the post marriage days, and that the gold and cash received by him in 1980 were returned to the appellant. The accused was acquitted on the strength of those findings. 4. Sri. C.K. Sivasankara Panicker, learned counsel for the appellant argued that the trial Magistrate has committed grave error in coming to those findings. Sri. M. Ratna Singh raised a legal point without prejudice to his other contentions on merits that a husband or wife spending the wealth belonging to either of them would not amount to criminal breach of trust since such spending could have been for the common needs of the family. 5. The majority judgment in Pratibha Rani v. Suraj Kumar (AIR 1985 S.C. 628) has settled the law that a husband is liable to be visited with penal consequences for breach of trust, if he fails to return the cash or gold ornaments belonging to his wife. Their Lordships had disapproved the earlier thinking that the only remedy of the wife in such situation is to resort to civil proceedings. The Supreme Court has also held in the same decision that mere entrustment of property of the wife to the husband does not attract any of the essential ingredients of the partnership or constitutes any co-ownership. The following observations of the Supreme Court are important: "The mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. The following observations of the Supreme Court are important: "The mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. In the case of stridhan property, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust It cannot also be said that once a married woman enters her matrimonial home her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly mis¬appropriates the same. For instance, properties like jewellery, clothing, cash etc., given by her parents as gifts cannot be touched by the husband except in very extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoins that the husband must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would be liable to penal action under the present law of the land". There is no merit in the contention that those observations would only apply to Hindus since the decision considered the nature and character of 'stridhan' under Hindu Law. No doubt, the parties to the said decision were governed by Hindu Law. But the principles enunciated therein are not meant to be confined to Hindus alone. They apply with equal force to all husbands and wives whether they are Hindus or Muslims or Christians. There is absolutely no warrant to restrict the principles laid down therein to members of one community only. 6. According to the prosecution in this case, entrustments were made on two occasions. The first was in 1975 soon after the marriage and the second was in 1980. For the sake of convenience they will be referred to as the first and second entrustments respectively. Regarding the first entrustment, there is no documentary proof except Ext. P2 which is a list of articles written in the handwriting of a cousin of the appellant. Ext. For the sake of convenience they will be referred to as the first and second entrustments respectively. Regarding the first entrustment, there is no documentary proof except Ext. P2 which is a list of articles written in the handwriting of a cousin of the appellant. Ext. P2, even if it can be acted on, only shows the items received as marriage presents. It does not show that they were entrusted to the accused for safe custody. The Chief Judicial Magistrate has made the following comments about this aspect: "From the evidence of P.W.1 and her conduct, her cultural background etc., it is apparent that she is not likely to part with such large quantity of gold without securing a receipt from the accused. Who gave her 101 sovereigns worth ornaments and who made those ornaments are matters to be explained by the prosecution., As per Ext. P2, P.W.1 might have received some gold coins or ornaments. That does not mean that they were entrusted with the accused". The former part of the aforesaid comment cannot be sustained for the reason that the connubial life during the early months went on very smoothly and hence no receipt would ever have even been contemplated by the spouses for anything which the husband received from the wife. Even the accused has no case that he passed any receipt for the lavish help received by him from his brothers-in law for starting the nursing home. The idea of insisting on formal receipts might have arisen only at the later stage when the spouses attached more importance to material possessions than sentiments. However, the evidence regarding the first entrustment is not sufficient in criminal case to hold that the same has been proved beyond reasonable doubt. 7. The second entrustment is admitted by the accused. Ext. P3 is a document signed by the accused and attested by two witnesses in which he had acknowledged receipt of Rs. 10,5000/- and gold ornaments weighing 221/2 sovereigns. He received them on behalf of his wife. Appellant has given evidence that the accused had not returned them. The burden is on the accused to prove that he had accounted them. No doubt that the said burden need be discharged by preponderance of probabilities. Accused relies on Ext.D2 receipt admittedly signed by the appellant to prove that he has returned the gold ornaments. Ext. D2 does not bear any date. The burden is on the accused to prove that he had accounted them. No doubt that the said burden need be discharged by preponderance of probabilities. Accused relies on Ext.D2 receipt admittedly signed by the appellant to prove that he has returned the gold ornaments. Ext. D2 does not bear any date. Appellant has a case that her husband asked her to write Ext. D2 since such a receipt was needed to produce before the Income Tax authorities. There is difficulty to believe that Ext. D2 would have been the type of receipt which the accused would have wangled from his wife if the intention was to create a document for returning the gold covered by Ext. P3. The recital in Ext. D2 is the following: It must be borne in mind that Ext. P3 does not contain any recital that the husband received any gold from the wife for the purpose of pledging them. If the idea of the accused was to have a formal document to evidence the return of the gold covered by Ext. P3, the form and content of the receipt would have been much different from Ext. D2. A close reading of Ext. D2 would suggest that the accused had pledged some ornaments received from the appellant and those ornaments were returned to her. There are circumstances to suggest that the accused would have sold away some gold ornaments belonging to his wife. Ext. P6 is the copy of the returns submitted by the accused before the Income Tax authorities for the year ended with 31-3-1984. He had shown in that return that a sum of Rs. 46,294/- was obtained by him by sale of gold effected on 3-6-1983. Whose would have been those ornaments? The accused made an attempt to show that they were the ornaments of his mother. Ext. P18 (a copy of the written statement filed by the accused on 28-10-1985 in a civil suit filed against him by his sister) shows that the accused had not received any gold ornaments which belonged to his mother at any time. In all probabilities the gold ornaments, the sale of which is mentioned by the accused in his Income Tax returns, would have been those which he got as per Ext. P3. 8. In all probabilities the gold ornaments, the sale of which is mentioned by the accused in his Income Tax returns, would have been those which he got as per Ext. P3. 8. It is for the accused to show that he had accounted the cash and gold received as custodian of his wife as per Ext. P3. Ext. D3 is a pass book for Savings Bank Account No. 3311 in the name of the appellant. It shows cash remittance of Rs. 10,500/- on 25-8-1980. On that day the account holder had a credit balance of Rs. 14,693/-. On 5-11-1980, a sum of Rs, 14,500/- had been withdrawn from that account. Ext. D3 is the sheet-anchor for the accused to show that the cash was remitted by him in her account. Learned counsel for the appellant pointed out that the said pass book was produced by the appellant during cross-examination of P.W.1 and hence she could not say as to how such an account came into being in her name. The accused did not take any step to get down the cheque or withdrawal slip by which the said amount was withdrawn on 5-11-1980. The answers given by P.W.1 when she was confronted with Ext. D3 for the first time in cross-examination indicate that she was not aware of any such remittance and withdrawal. The accused should further prove that the amount was withdrawn by the appellant herself. Learned counsel for the accused has submitted that the said proof can be given without difficulty. 9. Interest of justice requires that an opportunity should be given to the accused to adduce further evidence in discharge of his burden to show that the cash and gold received by him as per Ext. P3 had been accounted by him. I, therefore, allow this appeal and set aside the order of acquittal and remit the case to the trial court for affording the accused that opportunity. I make it clear that no de novo trial is necessary. After receiving the additional evidence if adduced the case can be disposed of afresh by the trial court. Allowed.