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Tripura High Court · body

2017 DIGILAW 12 (TRI)

Abha Chakraborty v. State of Tripura

2017-01-09

S.TALAPATRA

body2017
Judgment and Order : 1. Heard Ms. S. Deb Gupta, learned counsel appearing for the petitioner as well as Mr. R. C. Debnath, learned Addl. P.P. appearing for the State and Mr. R. Dutta, learned counsel appearing for the respondent No. 2. 2. The respondent No.2, the accused who has been chargesheeted by the police for committing offence punishable under Section 406 of the IPC in connection with Manubazar P.S. Case No. 52 of 2013. 3. The complainant (PW-1) is the estranged wife of the respondent No. 2. For some matrimonial discord, the complainant was allegedly forced to leave the matrimonial home and after her leaving the matrimonial home, she went to bring the property exclusively owned by her. But since the respondent No. 2 did not returned her property she lodged a complaint in the Court of the Sub-divisional Judicial Magistrate, Sabroom, who in turn sent the complaint under Section 156(3) of the IPC for investigation and thus Manubazar P.S. case No. 57 of 2013 was registered and was taken up for investigation. 4. As stated, after investigation, the police report was filed chargesheeting the respondent No. 2 under Section 406 of the IPC. In due course, the charge was framed and was denied by the respondent No. 2. As a result, it reached for trial. 5. The prosecution has adduced as many as 9 witnesses along with some documents, such as the complaint lodged by PW- 1, namely, Smt. Abha Chakraborty, the petitioner herein. In the complaint, the petitioner herein had simply stated that on 22.06.2013 she along her elder brother went to the house of the respondent No. 2 for taking back all those articles which were given in her marriage. But the respondent No. 2 used slang language and drove them out by raking up assault. 6. The petitioner has admitted in the cross-examination that she did not submit any cash memo of those articles. Even she could not reveal who are the persons living in the neighbourhood. Thus, the prosecution had tried to establish the charge. But finally one of the prosecution witnesses namely, Ashim Chakraborty had categorically stated that even though he was present in the marriage ceremony but he did not see any furnitures, articles or money given to the respondent No. 2. 7. The prosecution did not re-examine the said witness. Thus, the prosecution had tried to establish the charge. But finally one of the prosecution witnesses namely, Ashim Chakraborty had categorically stated that even though he was present in the marriage ceremony but he did not see any furnitures, articles or money given to the respondent No. 2. 7. The prosecution did not re-examine the said witness. However, PW-2, Smt. Madhabi Chakraborty [mother of the PW-1], and PW-4, Sri Dipankar Chakraborty [the brother of the PW-1] have categorically stated that a sum of Rs. 50,000/- and articles like dressing table, tea table, kusum table and 21 inch colour TV with dish antenna, 6 vori gold ornaments, utensils, bags and baggages, two piri, one VIP were given to Srikanta. In this statement, there is no variation that all these materials were given to Srikanta, the respondent No. 2. 8. The other witnesses are formal witnesses and only PW-3 is the Pradhan of Krishnanagar gaon panchayat. He did not support the prosecution’s case. Finally, on appreciation of the evidence, the trial court [the SDJM, Sabroom, South Tripura] has observed as under: “The articles which were seized are of such a nature which is generally given during marriage as a part of a gift and the prosecution has failed to show that it forms part of “Stridhan” as there is no plea existing tabulation of such articles made by the either of the victim at the time of marriage. Also it is clear that such articles are still in existence and there is no evidence on record that any part of it has been sold or disposed of otherwise by the accused causing personal gain to him or wrongful loss to the victim.” 9. On such premises, the respondent No. 2 was acquitted from the charge. Being aggrieved, the complainant has preferred an appeal under proviso to Section 372 of the Cr. PC in the Court of the Sessions Judge, South Tripura, Belonia by filing a Criminal Appeal No. 09 of 2016, which was dismissed by the impugned judgment and order dated 20.07.2016 affirming the finding of the trial court in the following words: “11. On perusal of the above prosecution evidences, I find that, no list of ‘Streedhan’ as well as no cash memo or voucher in support of ‘Streedhan’ is exhibited. Only there is oral evidence of PW-1 and her relatives. On perusal of the above prosecution evidences, I find that, no list of ‘Streedhan’ as well as no cash memo or voucher in support of ‘Streedhan’ is exhibited. Only there is oral evidence of PW-1 and her relatives. From the independent witnesses, who were present at the time of marriage, I find, they did not see the giving of any ‘Streedhan’ to the accused Srikanta Bhattacharjee. So, I find that, the question of entrustment of ‘Streedhan’ under Section 406 of IPC to the accused is not made out or proved by the prosecution. It is the burden lies upon the prosecution to prove that ‘Streedhan’ was entrusted with the accused and the accused has misappropriated such ‘Streedhan’ after demand of getting back is made.” 10. It is apparent from the analogy given by the Appellate Court that to constitute an offence under Section 406, the essential requirement could not be established by the prosecution. There is no evidence about the criminal breach of trust, which has been defined under Section 405 of the IPC. 11. The criminal breach of trust if paraphrased would mean an offence where there must be entrustment, there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him that amounts to a criminal breach of trust as defined by Section 405. The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust. 12. In this case, the first part is not relevant. The probative value of the evidence placed by the prosecution is related to whether in any manner property belonged to the complainant was converted, disposed or used with ulterior motive not to restore the custody of the property to its owner. 13. There was no evidence to show contrariwise, according to both the courts below, the finding is concurrent in nature. The trial court has stated that virtually there was no claim of Streedhan. 13. There was no evidence to show contrariwise, according to both the courts below, the finding is concurrent in nature. The trial court has stated that virtually there was no claim of Streedhan. The testimonies of PWs-1, 2 and 4 do reflect state that at the time of the marriage ceremony, from the house of the bride, those properties were given to the bridegroom, the respondent No. 2. This categorical statement, as is referred, cannot have any deterring effect to presumption in favour of the respondent No. 2. If the foundation was laid in the manner that it was a simple gift for ensuring welfare of the bride, then also, ‘streedhan’ could have been inferred by way of presumption but on the face of the statement made by the PWs-1, 2 and 4 even that presumption cannot be drawn by the Court. 14. As a result, the custody or entrusting dominion of the property to have the control with the respondent No. 2 cannot be presumed. This Court does not find any ‘palpable illegality’ or ‘glaring perversity’ in appreciation of the evidence. Unless those two components are established usually in the revision, the High Court is not inclined to reverse the concurrent finding made by the trial court and the appellate court. As such, this Court is constrained to hold that this revision petition does not have any substance and accordingly this petition falls through and is accordingly dismissed. Return the LCRs forthwith.