Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 91 (JK)

Satinder Kour v. S. D. Singh

2005-03-30

S.K.GUPTA

body2005
1. Through the currency of this revision, the complainant seeks the reversal of order dated 31.3.2003, drawn by the learned Judicial Magistrate Ist Class (Sub-Judge), Jammu, in a complaint entitled Satinder Kour versus S.D.Singh for the offences under sections 405/ 406 RPC, whereby the trial court has dismissed the complaint and discharged the respondent. 2. The case set up by the petitioner-complainant in her complaint, in brief, may be noticed. 3. That it was the love marriage of the complainant- petitioner with the respondent performed on 26.8.1995. The marriage between the parties was registered with the Tehsildar, Jammu. The respondent, soon after the marriage, proceeded for IPS training and joined the training Institute by making a wrong statement that he is still unmarried. At the insistence of the respondent, after the joining of Institution, another function was solemnized in Delhi to cover-up the wrong statement made by the respondent before the authorities of the Institution that he was unmarried at the time of joining the Institution. The complainant further stated to have received several gifts both at Jammu and Delhi from her relatives, friends and mother at the time of marriage which were exclusively meant for her use after the marriage. This was the stridhana of the complainant and she never parted with her possession or dominion over the articles described in the list annexed with the complaint. It is further asserted that the respondent was never made to possess the said articles. The respondent, after sometime, started maltreating the complainant for want of bringing sufficient dowry and turned her out of the matrimonial house. All the articles belonging to the complainant as her stirdhana remained with the respondent and demands were made at various times for the return of the stridhana, but without any positive response and the respondent intentionally and willfully retained the said property. The complainant further stated to have never entered into an agreement with the respondent by virtue of which the respondent was either entrusted with the property or domain over the said property, thus, he dishonestly misappropriated the stridhana of the complainant and he has committed the offence of criminal breach of trust. 4. The trial court entertained the complaint of the complainant and issued the process against the respondent- accused for offences under sections 405/406 RPC. 4. The trial court entertained the complaint of the complainant and issued the process against the respondent- accused for offences under sections 405/406 RPC. In sustenance of the allegations made in the complaint, the evidence produced by the complainant was recorded and the trial court after hearing the arguments held that the evidence provided by witnesses, including that of the complainant is qualitatively and quantitatively insufficient that the ˜stridhana™ property claimed by the complainant to be belonging to her was ever entrusted to the respondent or respondent had any dominion over the said property which he has dishonestly misappropriated or converted the same to his use, so as to satisfy the essential ingredients of the offences under sections 405 and 406, RPC, dismissed the complaint and discharged the accused-respondent by its impugned judgment and order dated 31.3.2003, which became the subject matter of challenge in this revision. 5. In support of the averments made in the complaint, the evidence assembled by the complainant consisted of the statement of her mother, Iqbal Kour, Tarvinder Kour and T.J.S. Modi, besides her own statement as a witness. 6. The complainant stated that her marriage with the respondent was as per their own choice in which the parents of the accused and other relatives did not participate. The complainant further stated to have accompanied the respondent to Hyderabad where the latter had gone to pursue his training. She lived with the respondent at the National Police Academy, Hyderabad. In order to socialize the marriage between the parties, a function was performed at Greater Kailash Delhi on 17.12.1995. The respondent thereafter left for his training at Hyderabad and advised the complainant not to reveal to any one about the factum of their marriage. A reception of marriage was organized in Dogra Hall, Jammu on 20.2.1997 as the respondent had come back to Jammu after the completion of his IPS training. It is also in the evidence of the complainant that she accompanied the respondent to Udhampur and thereafter to Kathua where the respondent stood transferred after month and lived with him. The complainant stated that on 25.6.1997 the respondent ran away from the house and left the complainant in Kathua. Her stridhana consisted of certain gifts and articles received from her mother and other relatives, the description whereof is given in the list annexed with the complaint. An amount of Rs. The complainant stated that on 25.6.1997 the respondent ran away from the house and left the complainant in Kathua. Her stridhana consisted of certain gifts and articles received from her mother and other relatives, the description whereof is given in the list annexed with the complaint. An amount of Rs. 1,40,000/- as ˜Shagun™ was also given to her. She also stated that during reception held on 20.2.1997, gold Jewellery, two diamond rings, Sarees, Suits and Pashmina Shawls were also received by the complainant as gifts from friends and relatives. All these gifts alongwith ˜Shagun™ amount of Rs.1,40,000/- were taken to the house of respondent after reception. She further stated that an amount of Rs. 1,40,000/- was handed over to the accused by the complainant which the accused had not returned back alongwith other articles indicated above to her, despite demands were made at several times. When the accused-respondent went to Delhi, the complainant stated to have been driven out by her in-laws after a merciless beating and the accused who was in possession of cash of Rs.1,40,000/- and stridhana property dishonestly, misappropriated the same. However, in her cross-examination, the complainant deposed that in the absence of the accused, she had brought her articles from Kathua as per the list prepared in the presence of an ASI. To the same effect is the statement of Mst. Iqbal Kour, the mother of the complainant, so far as it relates to the marriage of choice between the complainant and the accused, posting of accused at Udhampur and Kathua after the completion of the training and gifts in the shape of Sarees, Suits and Jewellery to the complainant at the time of marriage and ˜Shagun™ and the function was organized in Delhi. PW Iqbal Kour, however, stated that on the receipt of telephonic message from the parental house of the accused at Kathua informing that the complainant was un-well, she proceeded to Kathua and brought the complainant to Jammu from Kathua on 30.6.1997. It is also in her statement that when the complainant went to the house of in-laws in Jammu, she was driven out. The statement of this witness stands contradicted by the complainant as the latter stated least about her mother ever visited to Kathua and brought her to Jammu in an un-conscious condition. It is also in her statement that when the complainant went to the house of in-laws in Jammu, she was driven out. The statement of this witness stands contradicted by the complainant as the latter stated least about her mother ever visited to Kathua and brought her to Jammu in an un-conscious condition. This witness, however, did not state any thing about the entrustment of the articles which were stridhana of the complainant to the accused-respondent, who had dishonestly misappropriated and did not return to the complainant, despite repeated demands. 7. Another witness produced in the case by the complainant is Tanveer Kour, the sister of the complainant. She had, however, given the detail of the articles given to the complainant in the ˜Bidhai Ceremony™, including cash which had been taken by the complainant to her in-laws house. She, however, stated that in reception ceremony performed on 20.2.1997 their relatives had given ˜Shagun™ amount to the accused-respondent. It is also in her evidence that the complainant informed her about the demands made by the in-laws for dowry and also about the physical chastisement. Her evidence is to the effect that she accompanied her mother to Kathua along with her husband when they learnt that the complainant is un-well and on reaching there they found the complainant lying un-conscious in the house and the accused was not present which is at variance with the statement of the complainant as the latter had not said any thing in her statement on oath. The witness also stated to have been informed by her mother about the complainant to have been turned out from the matrimonial house by her husband and is staying at Jammu with her parents. Along with her husband she when visited Kathua, the accused-respondent misbehaved with them. The witness, however, in her corss-examination expressed her ignorance as to what articles were brought by the complainant alongwith her from Kathua. This witness also did not state any thing about the entrustment of the ˜stridhana™ articles of the complainant to the accused nor any thing is found in her testimony that the accused dis-honestly misappropriated the ˜stridhana™ of the complainant. 8. Similarly, T.J.S. Modi was examined as witness by the complainant. He also stated that during Shagun� and thereafter when Bidhai Ceremony� took place on 16.2.1997, the cash amount, Jewellery and other things were given as gifts to the complainant. 8. Similarly, T.J.S. Modi was examined as witness by the complainant. He also stated that during Shagun� and thereafter when Bidhai Ceremony� took place on 16.2.1997, the cash amount, Jewellery and other things were given as gifts to the complainant. He also stated to have gone with her sister to Kathua and found the complainant unconscious and the accused was not available in the house at that time. The witness further stated that the dowry articles and the gifts given to the complainant at the time of ˜Shagun™ and Bidhai Ceremony� are in the house of the accused- respondent. He also admitted that a divorce petition has also been filed by the accused-respondent. There is nothing found in the evidence of this witness that the complainant had ever entrusted ˜stridhana™ articles to the accused-respondent and the latter misappropriated same with dishonest intention or converted it to his own use. 9. The entire gamut of evidence including that of complainant only pertains to the gifts, cash and Jewellery given to the complainant at the time of Shagun� and Bidhai Ceremony�. The witnesses as well as the complainant have stated least about the handing over of the ˜stridhana� articles to the accused-respondent and the entrustment of the property of the complainant which the latter had misappropriated or converted to his own use with dishonest intention. The complainant in her cross-examination stated to have brought all the articles from Kathua in the absence of the accused, list of which was prepared in the presence of an ASI and thereafter she had no contact with the accused. 10. If this be the position, it is not understandable as to when did she make a demand for return of the ˜stridhana™ articles, if at all these were entrusted by the complainant to the accused and the latter did not return and dishonestly misappropriated or converted the same to his own use. 11. Even the statement of the complainant that she never parted with her possession or dominion over the properties described in the list and the accused was never made to possess the said articles exclusively, patently contradicts her stand of ˜stridhana™ given to the accused- respondent which the latter on demand did not return and dishonestly misappropriated the same. 12. 11. Even the statement of the complainant that she never parted with her possession or dominion over the properties described in the list and the accused was never made to possess the said articles exclusively, patently contradicts her stand of ˜stridhana™ given to the accused- respondent which the latter on demand did not return and dishonestly misappropriated the same. 12. There is, in fact, not a shadow of evidence found on record that there was ever entrustment of ˜stridhana™ property to the accused which has been dishonestly misappropriated by the latter and refused to hand over the same when demands were made in this respect several times by the complainant. The conclusion reached by the trial Court, on the perusal, assessment and appreciation of the evidence adduced by the complainant in support of the averments made in the complaint, that there is not an iota of evidence to prove the entrustment of ˜stridhana™ articles to the accused-respondent which the latter dishonestly misappropriated and committed a criminal breach of trust, in my view, does not suffer from any infirmity legal or factual, inviting interference in revision. 13. It is well settled that the properties gifted to the bride before the marriage, at the time of marriage or at the time of giving farewell or thereafter, are her ˜stridhana™ properties. It is her absolute property with all rights to dispose of at her own pleasure. The husband has no control over her ˜stridhana™ property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, ˜stridhana™ property does not become a joint property of the wife and the husband and the latter has no title or independent dominion over the property as owner thereof. 14. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 RPC are entrusting any person with property or with any dominion over property; the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged. The expression entrustment� carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, its import is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. It is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out there from. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the ˜stridhana™ property or dominion over her ˜stridhana™ came to be made to the husband or any other member of the family or the accused person, as the case may be as is held by the Apex Court in case entitled Rashmi Kumar versus Mahesh Kumar Bhada, (1997) 2 SCC 397. The majority view of the judgment in case entitled Pratibha Rani versus Suraj Kumar, (1985) 2 SCC 370, has extensively considered the words entrustment� of and dominion� over the property. 15. In Velji Raghavji Patel versus State of Maharashtra, 1965 (2) SCR 429, the Apex Court held that in order to establish entrustment or dominion over the property to an accused, mere existence of that person™s dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. 16. The final question which falls for determination is that whether the complainant has made out any prima facie case of entrustment in respect of ˜stridhana™ property by handing over the same to her husband, i.e., accused- respondent. It must be further shown that his dominion was the result of entrustment. 16. The final question which falls for determination is that whether the complainant has made out any prima facie case of entrustment in respect of ˜stridhana™ property by handing over the same to her husband, i.e., accused- respondent. A reading of the complaint indicates that the statement of the complainant and the evidence of the witnesses assembled on record clearly indicate that it was a love marriage between the parties. The complainant resided with the respondent wherever he remained posted, viz., Udhampur and Kathua. It is also in the evidence of the complainant that the accused ran away from the house at Kathua and she returned to Jammu to her mother™s house with some articles on the same day. It is also in her statement that when she visited the house of the parents of the accused, she was driven out after giving her physical chastisement. It is further elicited from her statement that she had brought articles from Kathua in the absence of the accused and did not remain in contact with the accused thereafter. 17. The complaint further discloses that the complainant never parted with the ˜stridhana™ property and same remained in her possession exclusively and so has been admitted by the complainant in her testimony in the Court. The evidence produced by the complainant when taken in its entirety runs contrary to the allegations in the complaint that she had entrusted ˜stridhana™ property to the accused and the latter did not return the same despite repeated demands and, thus, dishonestly misappropriated and converted it into to his own use and thereby committed criminal breach of trust. A mere statement of the complainant that the ˜stridhana™ articles were lying in the house when she was turned out from Kathua, would neither prima facie amount to entrustment of ˜stridhana™ articles to the accused nor the misappropriation of the ˜stridhana™ articles belonging to the complainant by the accused- respondent. 18. The Court at the time of taking cognizance of the offence and framing the charge, it is fairly settled legal position, has to consider the averments made in the complaint and the evidence adduced in order to find out as to whether the offence has been made out. 18. The Court at the time of taking cognizance of the offence and framing the charge, it is fairly settled legal position, has to consider the averments made in the complaint and the evidence adduced in order to find out as to whether the offence has been made out. The court can sift and weigh the evidence with regard to the offence made in the complaint and the evidence produced only to a limited extent to satisfy itself and to come to a conclusion as to the existence of prima facie case for framing of the charge. 19. As regards scope of sections 227/228 of the code of Criminal Procedure, the Apex Court in case Satish Mehra versus Delhi Administration & anr., 1996(3) Crimes 85 (SC), held as under:- Held : When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible: is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is sufficient ground for proceeding�. Further held: The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court (sick ) out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.� 20. In the back drop of the aforesaid facts and circumstances of the case and the settled legal position, the grounds taken by the complainant in the revision and further vouched by Mr. K.S. Johal, learned counsel for the complainant, are not tenable being factually frail and legally infirm and, thus, cannot be accepted. 21. Considered from this perspective and bestowing with my anxious consideration, I unhesitatingly reach the conclusion that there is no sufficient ground to proceed with trial in the case. The revision, in such event, thus, possesses no merit and is, accordingly, dismissed. The record of the trial court shall be remitted back forthwith.