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Allahabad High Court · body

2010 DIGILAW 2798 (ALL)

NAVEEN KUMAR SHARMA v. STATE OF U. P.

2010-09-14

ASHOK SRIVASTAVA

body2010
JUDGMENT Hon’ble Ashok Srivastava, J.—List has been revised. None is present either from the side of the revisionists or from the side of opposite party No. 2. Learned A.G.A. is present. I have heard learned A.G.A. and perused the records. It is evident that both the Courts below have held that the facts of the case are undisputed. 2. A brief mentioning of relevant facts appears necessary. The marriage of revisionist No. 3 was settled with one Manoj s/o opposite party No. 2. The ring-ceremony was solemnized and a number of articles including ornaments were given to revisionist No. 3 at the time of the ring-ceremony. A date of marriage was fixed. Thereafter it came to the knowledge of revisionist No. 3 and her parents that the landed property as was stated to be in the ownership of Manoj was much less and that he was running a liquor shop and there may be a possibility that he may be a possibility that he may be a drunkard. Therefore, the bride side broke the marriage settlement. 3. Feeling aggrieved by their action the opposite party No. 2 filed a complaint case before the learned Magistrate who recorded the statements under Sections 200 and 202 Cr.P.C. Thereafter, the learned Magistrate dismissed the complaint expressing the opinion that “giving” of cash, ornaments, clothes and other articles at the time of the ring ceremony does not constitute entrustment as defined under Section 405 I.P.C. Feeling aggrieved by the dismissal order the opposite party No. 2 preferred a Criminal Revision No. 408 of 2002 in the Court of learned Sessions Judge, Aligarh which was transferred to the Court of 4th Additional Sessions Judge. The learned Addl. Sessions Judge allowed the revision with the direction that all the revisionists be summoned and tried under Section 406 I.P.C. by the Court of learned Magistrate. Hence the present revision. 4. To constitute an offence under Section 406 I.P.C. the ingredients of Section 405 I.P.C. should be satisfied. The learned Addl. Sessions Judge allowed the revision with the direction that all the revisionists be summoned and tried under Section 406 I.P.C. by the Court of learned Magistrate. Hence the present revision. 4. To constitute an offence under Section 406 I.P.C. the ingredients of Section 405 I.P.C. should be satisfied. The relevant portion of Section 405 I.P.C. is quoted as under : 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 or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits ‘criminal breach of trust’. 5. A perusal of the above Section, it is evident that the ingredients, in order to constitute a criminal breach of trust are : (1) entrusting a person with property or with any dominion over property (2) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) or any legal contract made, touching the discharge of such trust. 6. It has been so held by the Apex Court in the matter S.W. Palanitkar v. State of Bihar, 2002 SCC (Crl) 129 and Kailash Kumar Sanwatia v. State of Bihar, 2003 (7) SCC 399 . 7. Now let us examine the facts of the case in hand. It is a matter of common experience that at the time of ring ceremony or Var Raksha or matrimonial engagement both the sides give cash, clothes, sweets, dry fruits, fruits, ornaments and other articles to each other. These things may be called gifts, presentations, articles of dowry or donatio ante nuptias. Giving such things by one party to other on such occasions does not entail the intention that the articles may be taken back by the person who gives it from the person who receives the same. These things may be called gifts, presentations, articles of dowry or donatio ante nuptias. Giving such things by one party to other on such occasions does not entail the intention that the articles may be taken back by the person who gives it from the person who receives the same. In most of the cases such transfer of possession of the article is coupled with the idea to transfer the ownership of such thing to the receiver. In such cases there is no expectation on the part of the donor that he will take the articles back from the donee. As a matter of fact on such occasions the recipient becomes the owner of gifted articles as the donative intention of the donator is clear to either of the parties. In case of “entrustment”, as it appears under Section 405 I.P.C., the ownership of the article or property entrusted never passes to the person who receives the same and normally it remains with the person who hands it over to the recipients. 8. In such circumstances, in the instant case, by no stretch of imagination, it can be said that the articles given to the revisionists from the side of opposite party No. 2 were “entrusted” to the former by the latter. Therefore, I am of the view that the revision has got force and it should be allowed. 9. In the facts and circumstances of the present case it cannot be said that opposite party No. 2 is remedy less. He can sue the other party for damages or for an equitable remedy. If he can prove that the revisionists had criminal intentions from the very beginning to dupe and cheat him, provisions are there in the Criminal Law of which opposite party No. 2 can take recourse. But in the instant case, keeping in view the facts and the evidence led by opposite party No. 2 before the learned Magistrate under Sections 200 and 202 Cr.P.C. no case under Section 406 I.P.C. is made out. The revision is allowed. The impugned judgment and order dated 21.3.2003 passed by the learned 4th Additional Sessions Judge, Aligarh in Criminal Revision No. 408 of 2002 is hereby quashed and set aside and the discharge order passed by the learned Magistrate dated 11.7.2002 is restored. —————