Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 297 (GAU)

Munindra Nath Mahanta v. Niru Mahanta

2003-07-16

S.K.KAR

body2003
JUDGMENT S.K. Kar, J. 1. This is an application under Section 482 of Cr.P.C. with the object of getting the proceedings, registered as case No. C.R. 1828 of 2000 under Section 406, rule 34 of IPC, against the present petitioner by the respondent/opp. party quashed. Earlier in this context there was a revision petition before Additional District Judge, Nagaon, vide CM. No. 24(n) 2001, which was dismissed. 2. To be concise and precise the respondent herein before this court Smt. Niru Mahanta, filed a complaint against the present petitioners Manindra Nath Mahanta and Smt. Kalindi Mahanta stating that after the death of her husband they drove away her from the matrimonial home retaining properties belonging to her as she was the second wife of her husband married to him on death of the first wife, who died giving birth to three children, but she had none. That learned District Judge, Nagaon, appointed Respondent No. 2 as the guardian of the minor children and declared present respondent to the entitled of 1/5th share in the property left by her husband. That she demanded her share of property as per judgment of the district Judge but the accused persons refused to handover the properties and were trying dispose of/sale the same. That if the properties are not urgently recovered there is risk of same being misappropriated etc. 3. The complainant is support of the aforesaid complaint made following statement oath before the Court, I quote - "I have filed case against Munidra Nath Mahanta and Kalindi Mahanta. My husband's elder brother and my mother-in-law have not given the share of my husband's property to me. I am entitled to 1/5th the share of my husband's property vide order in Guardianship case No. 132/99 instituted by the accused passed by the learned District Judge, Nagaon, when I sought my share from the accused they drive me out without giving my share. I have taken shelter in my mother's house. I entitled to get 1/5th share of my husband's under mentioned properties." 4. On such statements being made before the court, the court pass the following order. "ORDER 19/01/2001 Complt. present along with one witness. Discharged the witness after examination. On consideration of materials against - accd. persons, namely, 1) Munindra Nath Mahanta, 2. Smti. I entitled to get 1/5th share of my husband's under mentioned properties." 4. On such statements being made before the court, the court pass the following order. "ORDER 19/01/2001 Complt. present along with one witness. Discharged the witness after examination. On consideration of materials against - accd. persons, namely, 1) Munindra Nath Mahanta, 2. Smti. Kalindi under Section 406/34 I.P.C. Issue summons to accused persons It also appears a fit case to issue S/W against the accused persons for recovery of items mentioned by the complainant. O/C - Jajari P.S. is directed to execute the S/W on being identified by the complainant and to give Zimma of seized items to a reliable third party on furnishing a bond of Rs. Five lakhs Comptt. shall take step. Fixed 17/2/2001. ap/report. Sd/- M. Das, Addl. C.J.M. Nagaon." 5. Against this order dated 19.10.2001 taking cognisance, there was a revision petition presented by the present petitioners before Session Judge for setting aside the same which was, however, dismissed and hence this petition under Section 482 of Cr.P.C. (statement repeated). 6. I have heard learned counsel appearing on both sides. Perused the impugned order and considered other materials in the connected case record that were called for. The offence of criminal breach of trust, violation of which is punishable under Section 406 of I.P.C. is defined by Section 405 of the penal code and the relevant portion of definition goes as hereunder - "405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express of implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust." Explanation 1. ******. Explanation 2. ******. A simple reading of definition of offence of criminal breach of trust, will show that there should be dishonest, misappropriation of the property consequent to entrustment or having domain over it and the offender should convert the same property to his own use or if he violates any direction in so far dealing with the trust etc. Explanation 2. ******. A simple reading of definition of offence of criminal breach of trust, will show that there should be dishonest, misappropriation of the property consequent to entrustment or having domain over it and the offender should convert the same property to his own use or if he violates any direction in so far dealing with the trust etc. in order to bring the accusation of committing criminal breach of trust. In the instant case there is no question of any trust being created or held by the, accused/The only accusation is that property left by the husband of the complainant was in custody of the accused persons, particularly accused No. 1, and he was making an attempt to dispose of the property. It will be important to note the following statement in the complaint petition - "Hence if the property are not urgently recovered there is a risk of same being misappropriated". Therefore, the complaint admits that any case of misappropriation is yet to take place. With the declaration of the share of the complainant (respondent of this case), the learned district Judge has directed that Niru Mahanta will get 1/5th of the share, both movable and immovable properties (Annx. 2). So the properties now is custody of either petitioners No. 1 or 2 are joint properties and required to be partitioned. There is no question of entrustment, under the facts and circumstances of this case. The petitioners and respondent have indefeasible and equal rights to the extent of their respective shares in the property. The allegations of breach of trust is, thus, entirely misconceived although it will not be denied that the remedies to the respondent is still open by way of action before competent civil court to recover the property by way of declaration of title and recovery of real possession etc. It is not desired, even if it is a fact that petitioners were not parting with the share of the respondent, that they will be made criminally liable for offence as defined under Section 405 I.P.C. One of the inherent power of High Court conceived by Section 482 of Cr.P.C. is "to prevent abuse of the process of any Court has held in more than one occasion that where dispute is essentially of civil nature, the party should not be allowed to agitate the same in criminal forum (KAM Anwal Ali v. Jonab Mohd. Noorullah Saheb 1987 (3) Crimes 482). 7. In the result, the petition is allowed. The impugned order dated 19.1.2001 is set aside and the entire proceedings registered as C.R. Case No. 1828/2000 stand quashed. 8. Notwithstanding the fact of quashing the proceeding as aforesaid the seizure of the property to the extent of 1/5th share, to which the respondent Niru Mahanta is entitled undisputedly and which has been separated by execution of search warrant by the criminal court and given in custody of a third person, will remain undisturbed till competent Civil Court is approached and it decides otherwise or till matter is amicably settled by the parties by intervention of well-wisher effecting partition, as the case may be. Petition allowed.