Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 278 (JK)

Neeru Sharma v. Raj Kumar Sharma

2019-05-17

SANJAY KUMAR GUPTA

body2019
Judgment 1. This acquittal appeal has been filed by the appellant-Neeru Sharma against the judgment of acquittal dated 23rd April, 2005 passed by learned Judicial Magistrate 1stClass (Sub-Judge), Jammu on a complaint filed by the complainant/appellant herein and registered as File No. 11/Complaint dated 16th April, 2002, whereby the respondents have been acquitted of the charges under Sections 405, 406 Ranbir Penal code. 2. In the memo of appeal, it is stated that the trial court has failed to appreciate the evidence brought on record by the complainant/appellant herein in its right perspective and appears to have been swayed away by minor discrepancies. It is stated that trial court has totally misdirected itself in appreciating the evidence adduced by the appellant in support of her complaint. 3. The case of the appellant is that she was married to the respondent No.1 on 19th September, 1999 at Jammu as per Hindu Rites and Customs. It is stated that marriage of the appellant and the respondent No.1 was arranged marriage and the father of the appellant besides entertaining the marriage party, also gave dowry as per his financial status at the time of marriage. In addition to the dowry items, parents of the appellant presented numerous gifts and household items, which included the personal clothing and the jewelry of the appellant. It is further stated that all these items of clothing and jewelry were taken possession of by the respondents and remained with them till the appellant was turned out of her matrimonial home on 21st April, 2000. Thereafter, despite several efforts made by the parents of the appellant, the respondents did not take the appellant back to her matrimonial home. 4. Learned counsel for the appellant stated that the appellant was turned out of her matrimonial home merely after seven months of solemnization of her marriage. The parents of the appellant were making efforts to amicably settle the issue and persuading the respondents to take back the appellant, but the respondent No.1 filed a petition under Section 13 of the Hindu Marriage, Act seeking dissolution of marriage by a Decree of Divorce. The parents of the appellant were making efforts to amicably settle the issue and persuading the respondents to take back the appellant, but the respondent No.1 filed a petition under Section 13 of the Hindu Marriage, Act seeking dissolution of marriage by a Decree of Divorce. It is stated that in the said petition, on the basis of a report of Process Server that the appellant had refused to accept the summons, an ex-parte Decree of Divorce against the appellant and in favour of the respondent No.1 came to be passed by the learned Additional District Judge, (Matrimonial Cases), Jammu. The ex-parte decree of divorce was obtained by the respondent No.I only with a view to defraud the appellant of all items of dowry including her Stridhan presented to her at the time of marriage by the parents of the appellant as well as the respondents. It is contended that the appellant filed a complaint under Section 405/406 Ranbir Penal code against all the respondents for committing criminal breach of trust vis-a-vis her Stridhan which was registered as File No.11/complaint. The learned Judicial Magistrate 1st Class (Sub-Judge) Jammu after the perusal of the complaint and the preliminary statements recorded in support thereof took cognizance of the matter and summoned all the respondents for facing the trial. To support the factual averments made in the complainant, the appellant herself appeared in the witness box and examined her father Prem Chand, her mother Sudershan Sharma and Sh. Ashok Kumar. On completion of the evidence, the trial court was satisfied that the offences under Sections 405/406 Ranbir Penal code are prima facie made out against the respondents, as such, the learned trial court vide order dated 31.01.2004 charged the respondents for the aforesaid offences. 5. In defence the respondents also examined two witnesses, namely, Romesh Chander and Parveen Sharma. Thereafter, the trial court after hearing the arguments on behalf of both the sides vide order impugned dated 23.04.2005, recorded the judgment of acquittal in favour of the respondents. 6. 5. In defence the respondents also examined two witnesses, namely, Romesh Chander and Parveen Sharma. Thereafter, the trial court after hearing the arguments on behalf of both the sides vide order impugned dated 23.04.2005, recorded the judgment of acquittal in favour of the respondents. 6. Feeling aggrieved by the impugned judgment dated 23.04.2005, passed by learned Judicial Magistrate 1st Class, (Sub-Judge), Jammu appellant has challenged the same on the grounds that the learned trial court has failed to appreciate the evidence brought on record by the complainant in its right perspective and appears to have been swayed away by minor discrepancies; that the learned trial court has further erred in returning a finding that the appellant had failed to prove by leading any cogent evidence that the articles in the complaint had at all been given to the appellant at the time of marriage; that the learned trial court without any basis and reasoning has disbelieved the statement of the appellant that despite her demand, the dowry articles were never returned to the appellant and that the demand of the appellant was a casual and not intended to be final demand of her clothes and ornaments, is bereft of any reasoning; that the findings of learned trial court that mere refusal to return the entrusted property would not constitute any offence, unless there is volitional act on the part of the accused, by placing reliance on a decision of Hon’ble High Court in case titled Kailash Salathia vs. Kajal Salathia, is not borne out from the record of complaint; that under Section 405 RPC, no specific mode of entrustment is required to be proved. It is enough if the complainant proves that property owned by him/her is handed over to the accused for some purpose, which may not imply conferring of any property rights at all or that the accused had the dominion over the property regarding which breach of trust is alleged. 7. I have considered the rival contentions of parties; counsel for appellant has reiterated all grounds taken in memo of appeal, whereas counsel for respondents has supported the judgment. 8. Law with regard to appeal against acquittal is now well settled. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in AIR 2014 SC 2200 case titled “Muralidhar alias Gidda and Anr. Vs. 8. Law with regard to appeal against acquittal is now well settled. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in AIR 2014 SC 2200 case titled “Muralidhar alias Gidda and Anr. Vs. State of Karnatka”, which read as under:— “10. Lord Russell in Sheo Swarup v. King Emperor AIR 1934 Privy Council 227, highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, “... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh v. State AIR 1952 SC 52 while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, “............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State AIR 1954 SC 1 , Madan Mohan Singh v. State of U.P. AIR 1954 SC 637 , Atley v. State of U.P. AIR 1955 SC 807 , Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 , Balbir Singh v. State of Punjab AIR 1957 SC 216 , M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 , Noor Khan v. State of Rajasthan AIR 1964 SC 286 , Khedu Mohton v. State of Bihar (1970) 2 SCC 450 , Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 , Lekha Yadav v. State of Bihar (1973) 2 SCC 424 , Khem Karan v. State of U.P. (1974) 4 SCC 603 , Bishan Singh v. State of Punjab (1974) 3 SCC 288 , Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228 , K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355 , Tota Singh v. State of Punjab (1987) 2 SCC 529 , Ram Kumar v. State of Haryana 1995 Supp (1) SCC 248, Madan Lal v. State of J&K (1997) 7 SCC 677 , Sambasivan v. State of Kerala (1998) 5 SCC 412 , Bhagwan Singh v. State of M.P. (2002) 4 SCC 85 , Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470 , C. Antony v. K. G. Raghavan Nair (2003) 1 SCC 1 , State of Karnataka v. K. Gopalkrishna (2005) 9 SCC 291 , State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and Chandrappa v. State of Karnataka (2007) 4 SCC 415 . It is not necessary to deal with these cases individually. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:— (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. 13. In ‘Ghurey Lal v State of U.P.” (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 9. 13. In ‘Ghurey Lal v State of U.P.” (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 9. In present case appellant/complainant filed criminal complaint against respondents, who are her husband and parents in law, for the commission of offences punishable under sections 405, 406 RPC; complainant has alleged that she got married with the accused No.1 on 19.09.1999 at Jammu as per the Hindu rites and customs; that accused No.2 and 3 are the parents of accused No.1 and all of them are the residents of Village Patli Tarore, Tehsil Samba. That at the time of marriage, the complainant’s parents gave dowry as per their capacity, besides incurring huge expenditure on elaborate arrangements of marriage at Prem Bhawan, Jammu. That besides numerous articles of dowry including gifts and house-hold items were given to the complainant at the time of departure of Doli. That the complainant was given/presented personal clothings and gold ornaments from both parental as wel1 as in-laws side. That all these articles were entrusted to the accused by the parents of the complainant in presence of relatives. That the attitude of the accused towards the complainant from the very beginning was indifferent and they treated her with cruelty as well as cursed her for not bringing adequate dowry. However, her parents were not in a position to meet their demands. So the accused hatched up a conspiracy to throw her out from the matrimonial house. Barely, after seven months of her marriage, she was finally turned out from the matrimonial house on 21.04.2000. That despite several efforts made by the parents, the accused did not budge and refused to take her back to the matrimonial house. That when she was turned out from the matrimonial home, all her clothes and ornaments presented to her at the time of marriage, were retained by the accused with the intention to mis-appropriate the same. That her parents on the one hand were making efforts for amicable settlement, but the accused on the other hand in connivance with the process serving agency got ex-parte decree of divorce against her, dissolving her marriage with the accused No.1. That the ex-parte decree was obtained primarily to misappropriate her ornaments, clothing and dowry articles. That her parents on the one hand were making efforts for amicable settlement, but the accused on the other hand in connivance with the process serving agency got ex-parte decree of divorce against her, dissolving her marriage with the accused No.1. That the ex-parte decree was obtained primarily to misappropriate her ornaments, clothing and dowry articles. That the ornaments and clothing given to her at the time of her marriage but accused have criminally misappropriated the same, as such, they are liable for commission of offences under Sections 405, 406 Ranbir Penal code. That despite several requests made by the complainant as well as her parents to the accused, latter have not bothered to return stridhan of the complainant etc. 10. After filing of this complaint, court below took the cognizance on 16.04.2002 and during course of trial, court below recorded following witnesses, the brief resume of whom is as under:— PW Complainant-Neeru Sharma has deposed that she got married with the accused No.l on 19.09.1999 at Prem Bhawan Jammu. That it was an arranged marriage in which besides parents of the accused, other persons also participated. That the Doli left on the next day morning at 6-7 A.M. That her parents gifted her ornaments and clothes which were handed over to her in-laws. That ornaments gifted her included Gold Nose Ring, Necklace, Ear rings, Bangles, finger rings etc. and clothes comprised of 21 Sarees, 31 Suits ,06 Shawls and 10 Sweaters, three Purses, 5 Sandals and Titan Wrist Watch and her in-laws also gifted her ornaments which included one Necklace, Earrings, 13 Bangles, Golden Chain, Locket, Tops and four Finger Rings. That all these articles were meant for her personal use and remained with her parents-in-law. That after the marriage she remained at her matrimonial home for brief period of 07 months and whenever she had to come to attend some functions, her mother-in-law used to give her ornaments and clothes as per the requirements. That her in-laws started maltreating her right from the day of her matrimonial life, as they were not satisfied with the dowry. That on 18.04.2000, the accused No.1 left her at parental house, but she again went to in-law house. However, on 21.04.2000, he was not present at the house when her mother-in-law left her at Kunjwani and her brother-in-law left her at parental house. That on 18.04.2000, the accused No.1 left her at parental house, but she again went to in-law house. However, on 21.04.2000, he was not present at the house when her mother-in-law left her at Kunjwani and her brother-in-law left her at parental house. That at the time when she was left at the parental house on 18.04.2000 and subsequently on 21.4.2000 she was having nothing except clothes worn. That all her clothes and ornaments were lying with her mother-in-law. That thereafter accused never came to take her back to the matrimonial house. However, they came to quarrel only. That during that period she met her husband at University Campus and also contacted the Sarpanch of the village of her in-laws. That she demanded her ornaments and clothes. However, accused never wanted to return the same, as their intentions were not good. That the accused had grabbed her ornaments and clothings, but were not ready to take her back. That the accused did not return her aforesaid articles as they were greedy people and accused No.1 had obtained a decree of divorce and she had heard that accused No.1 had solemnized another marriage. On cross-examination, she stated that proposal of their marriage was mooted by the maternal uncle and Aunt of accused No.1 about two months earlier to the marriage. That her parents arranged clothings and ornaments within two months. However, some articles were already with them. That some of the ornament given to her, were purchased from N. N. Jewelers as she accompanied her parents to select the same and those included Nose Ring, Necklace, a pair of Earring, two Bangles etc. That she did not know how much these ornaments were costed. However, the payment was made in her presence. That her mother, he cousin brother Vinay Sharma, his wife Anu had accompanied her to purchase the ornaments from the N. N. Jewelers. That during those days she alongwith her mother was putting up at home, so, they purchased ornaments from N.N. Jewelers, Jain Bazar Jammu. That other ornaments were purchased from different places by her parents, but the same were not known to her. That clothes were purchased from Rehari, Bishnah and some were purchased from Monalisa and Jugal Sons. However she did not accompany her parents to the shops of Monalisa and Jugal Sons. That other ornaments were purchased from different places by her parents, but the same were not known to her. That clothes were purchased from Rehari, Bishnah and some were purchased from Monalisa and Jugal Sons. However she did not accompany her parents to the shops of Monalisa and Jugal Sons. That the shop-keeper of Rehari from whose shop she purchased the clothes was not known to her. However, the shop was alongside the Hanuman Mandir. That she did not obtain the bills of the clothes as she never thought of coming to the court. That bills from Monalisa and Juga1 Sons are also not with her nor she was having the bills of N. N. Jewelers. That she did not know whether her parents were having bills of those shops. That aforesaid articles were handed over to her by her parents at Prem Bhawan, Jammu and same were kept in Attachi. That some of the ornaments and clothes were worn by her at that time. That on the third day of marriage, those clothes and ornaments were taken by her mother-in-law and she was left with two suits only and a nose pin. That all the clothes and ornaments were retained by her mother-in-law and whenever she had to attend function, her mother-in-law used to give her ornaments and clothes as per the requirement. That on 21.04.2000, when she left her matrimonial home, she was wearing nose pin only. Thatafter 21.04.2000, the accused No.2 and 3 came to her parental house 2-3 times, had meals and abused. That accused No.3 slapped her on head at her parental home and asked her to re-set her brain. Accused No.3 was accompanied by accused No.2 also. However, accused No.1 never visited her at parental house. That about eight months after 21.04.2000, she telephoned at the office of the accused No.1 and called him at University of Jammu. That they met at the following Saturday as per the time settled. That she asked the accused to take her back to the matrimonial home, and to provide her clothes and ornaments as per the requirement, as she had to attend the marriage of her cousin and the winter season was also to set. However, the accused refused and said that he would take her sometime later. That she asked the accused to take her back to the matrimonial home, and to provide her clothes and ornaments as per the requirement, as she had to attend the marriage of her cousin and the winter season was also to set. However, the accused refused and said that he would take her sometime later. That she filed this complaint on 16.04.2002 and at that time she has got knowledge of issuance of decree of Divorce against her. It was true that she lodged the complaint only after knowing about the Divorce and had there been no divorce, she would not have filed the same. That when her parents gave clothes and ornaments at Prem Bhawan, Suman Sharma,Vipin Sharma, Ved Kalyani Sharma, Tirath Ram Sharma, Sudesh Kumar Sharma, Subash Chander Sharma were present besides other people, whose names were not known to her. That she signed the complaint after reading the same. However, she did name the aforesaid persons as witnesses in the same. It was wrong that she had filed the complaint with a view to revenge as her marriage was broken one. That all these ornaments and clothings were lying with her mother-in law as she was the head of the family. That after 18th April, 2000 she went to her in-laws once, but was again turned out, on 21.04.2000. That thereafter she never went to her in-laws house to meet her mother-in-law. PW Prem Chand Sharma, who is the father of the complainant, has deposed that complainant got married with the accused No.1 on 19.09.1999 at Prem Bhawan Jammu. That he gave dowry as per his status and complainant was also gifted gold ornaments, clothings and other necessary items of day to day use. That the ornaments were comprised of one Nose ring, Earrings two pairs, two bangles, Neck-lace, finger rings etc. That clothings were comprised of 3l suits, 21 sarees, one Odani, six shawls, 10 sweaters, sandles, a wrist watch etc. That all these articles were meant for the use of the complainant. That accused also gifted ornaments to the complainant which comprised of gold locket, Necklace, Chain, 12 bangles, 04 finger rings, a pair of tops, besides clothes. That clothes and ornaments gifted by him were given to accused No.1 and his relatives. However, accused No.2 and 3 were not present there. That accused also gifted ornaments to the complainant which comprised of gold locket, Necklace, Chain, 12 bangles, 04 finger rings, a pair of tops, besides clothes. That clothes and ornaments gifted by him were given to accused No.1 and his relatives. However, accused No.2 and 3 were not present there. That these articles were given in presence of relatives namely, Vipin Sharma, Sansar Sharma, Shashi Kumar, Vinay Kumar and others. That accused started torturing the complainant barely 2-3 days after her marriage, for not bringing adequate dowry. That occasionally the accused used to leave the complainant and taunt her. That on 18.04.2000 when the accused No.2 returned from hospital, the accused No.1 started torturing the complainant on the plea that she had not rendered him any financia1help. That thereafter accused decided to turn out the complainant and on 18.04.2000 she was left with them. That they returned the complainant to Matrimonial home on 21.04.2000, the accused again turned out the complainant but had not returned her articles till date. That the complainant was having two suits, one nose pin when she returned to the parental home. That thereafter they did not demand all the aforesaid articles from the accused, as they always tried to send their daughter at her matrimonial home. That accused 2 and 3 visited them twice and he also visited their place for about 8 dozens time, with a view to arrive at some settlement, but without any success. That afterward he came to know that accused No.1 has solemnized 2nd marriage, but he could not believe. He had heard that divorce is not possible without the statement of the girl. That he lodged a complaint at Women cell. That he came to know that accused No.1 had obtained ex-parte decree against the complainant and thereafter they approached the Matrimonial Court for cancellation of the decree. That accused had not returned the articles belonging to the complainant till date. On cross examination, he stated that he retired as Teacher on 30.11.2002. That at the time of retirement he was getting Rs.14,000/- as Salary. That despite service he was having agricultural income as he owned 13 kanals of land. That his wife was also a Lecturer in the Education department. That ornaments were purchased by his wife. However, he did not know from which shop same were purchased. That he could not tell the value of the ornaments. That despite service he was having agricultural income as he owned 13 kanals of land. That his wife was also a Lecturer in the Education department. That ornaments were purchased by his wife. However, he did not know from which shop same were purchased. That he could not tell the value of the ornaments. That one or two items which were purchased from Miran Sahib were paid by him to the extent of Rs.5-6 thousand. That some of the clothes were purchased by him alongwith his wife and the remaining were purchased by the complainant. That he purchased about 10-15 suits, 4-5 Sarees from Purani Mandi, Jammu and which costed approx. 12-13 thousand. That he obtained the bills from the shopkeeper which he had not brought in the court, but could produce the same after searching for the same. The statement of the witness was deferred for the production of the bills. He was further cross-examined on 21.07.2003 and stated that he could not produce bills as same were not found. That he never lodged the report with the police about the demand of dowry by the accused, or harassment meted out to the daughter. That after 21.04.2000, the accused visited him twice or thrice and he visited the accused 10-12 times. That accused complained about the complainant all the times and told that she was fat and her walking style was also not proper. That accused No.2 intimated how the complainant walked. That he requested the accused all the times to bring back the complainant to the matrimonial folds and they always gave excuses. That there was no other discussion. PW Sudarshana Sharma, the mother of the complainant, has deposed that complainant got married with accused No.1 on 19.09.1999 at Prem Bhawan Jammu. That they gave sufficient dowry and they gave four pairs of rings, Necklace, one Nath, two Bangles, 2 finger rings, two nose pins, wrist watch besides a pair of anklets. That the complainant was given 21 sarees, 31 suits, 06 shawls 10 Sweaters, five pairs of Chappals, three purses, 01 Odani and a gold chain. That accused also gave 12 Bangles, one Nath, one chain, a Locke,t one Tikka, 04 finger rings, one pair of Earrings and a pair of Tops, besides clothings. That complainant remained with the accused for 07 months. On 18.04.2000, the complainant was turnout for the first time by the accused. That accused also gave 12 Bangles, one Nath, one chain, a Locke,t one Tikka, 04 finger rings, one pair of Earrings and a pair of Tops, besides clothings. That complainant remained with the accused for 07 months. On 18.04.2000, the complainant was turnout for the first time by the accused. That the complainant came to the parental house, but she was returned on the same day. That barely three days later she was again turned out on 21.04.2000 and since then she has been putting up with them. That at the time when the complainant was thrown out, all her ornaments and clothings mentioned herein above were retained by the accused. That accused No.1 obtained ex-parte decree of Divorce with respect to which complainant had filed an application for setting aside the same. That accused No. 2 and 3 also attended the Barat. That the ornaments and clothes were given to the elder sister of accused No.1. That all thesearticles were in the possession of the accused. On Cross examination, she stated that some of the ornaments given to her daughter were purchased from N.N. Jeweler and remaining were purchased from Miran Sahib.That she did not know which of the ornaments were purchased from Miran Sahib or N. N. Jewelers. That she was accompanied by the complainant and her sister’s son and daughter-in-law for purchasing the ornaments from N.N. Jeweler. That they obtained the bills of the ornaments which were not with her. That she purchased the ornaments from Verma Jeweler of Miran Sahib and from another jeweler whose names she could not tell. That she did not come to purchase the ornaments from Miran Sahib herself, but had sent one Ashok Kumar, who was the resident of her village. That she did not remember how much amount was paid to the Jeweler of Miran Sahib nor the bills were with her. That some clothes were purchased from Jugal Sons while others were purchased from other shop at Jammu. That she had gone alone perhaps to purchase the clothes from Jugal Sons. That she went once or twice to a Cloth merchant at Rehari and was accompanied by her daughter. It was true that she was not having the bills of the clothes nor she could tell how much amount was spent on purchasing these cloths. That she had gone alone perhaps to purchase the clothes from Jugal Sons. That she went once or twice to a Cloth merchant at Rehari and was accompanied by her daughter. It was true that she was not having the bills of the clothes nor she could tell how much amount was spent on purchasing these cloths. That all the ornaments and clothes were given by her to the elder sister of the accused, who was known as Guddi and her real name perhaps was Krishna. That at that time, her brother’s sister and sister-in-law were present besides other people including Raman Kumar and Ashok Kumar and others. That all these articles were given after counting and after being shown to all. That all these articles were packed in a Attachi. That there was another Trunk and they told Krishna to put all the remaining articles in the Trunk. That after 21.04.2000 accused No.2 and 3 visited them twice or thrice, but returned after talking irrelevant with the promise to visit again. That once she along with her husband and sister-in-law went to the house of the accused as Grandmother of the accused No.1 had expired and they went to offer condolence. Barring that visit they never went to the house of the accused. However, her husband visited 10-12 times after 21.04.2000. That when she went to condole the demise of Grandmother of accused No.l in Oct. 200l, the accused No.3 met her and she requested her to bring back the complainant to the marital fold. However, the accused No.3 did not reply. That she had not ever talked with the accused. That she did not know what transpired between her husband and accused as she never accompanied the former. PW Ashok Kumar has deposed that complainant’s parents and he belongs to the same village. That he attended the marriage of the complainant, but did not know her husband. That at the time of departure of Doli he was present there. That complainant’s parents gave a Trunk and Attachi which contained clothes and ornaments and all these articles were entrusted to the relatives of the Bridegroom. That the complainant had been putting up at her parental house since three years and he had come to know that complainant had some quarrel with her in-laws. That complainant’s parents gave a Trunk and Attachi which contained clothes and ornaments and all these articles were entrusted to the relatives of the Bridegroom. That the complainant had been putting up at her parental house since three years and he had come to know that complainant had some quarrel with her in-laws. That the complainant used to meet him in marriages and some other social functions in the village without wearing any ornaments. That the ornaments given to the complainant at the time of marriage were lying with her in-laws. On cross examination, the witness stated that at the time of departure of Doli all the relatives of the complainant were present there. That about an hour before the Doli left, the clothes etc. were put in the Trunk by the relatives of the complainant, but he did not know their names. That other articles were also packed by the complainant’s relatives in the Attachi. That no one else was known to him present at that time. That complainant’s parents handed over the Trunk and Attachi to the relatives of the Bridegroom who were the ladies. That after marriage the complainant used to visit her parental house and he used to meet her, but the complainant never complained of her in-laws. That the marriage was solemnized in April, 2000. That the complainant returned her parental home barely 2-3 months later. That he did not know when the complainant left her in-laws house for the last time, as she did not return in his presence. That he could not tell whether the complainant returned with her clothing and ornaments. That he did not tell how many suits, Sarees or ornaments were given to the complainant at the time of marriage. That he had come to depose at the instance of the complainant father. That he was not aware of the nature of the case. That he was told to depose whatever he had seen. That is the whole evidence produced by the complainant. Court below vide order dated 31.01.2004 after hearing both sides and after examining the evidence on record came to the conclusion that accused were prima facie liable for the commission of offence punishable U/s 406 Ranbir Penal code. So they were charged, accordingly, and the charges against them were read over and explained to them. However, the accused pleaded not guilty. So they were charged, accordingly, and the charges against them were read over and explained to them. However, the accused pleaded not guilty. The accused further opted not to further cross-examine the complainant or her witnesses, produced by the complainant; the statement of accused u/s 342 ?r.?.?. were recorded; they produced two witnesses, namely, Ramesh Kumar and Parveen Kumar Sharma in their defence. A brief resume of their statements is re-produced as under; DW Ramesh Kumar has deposed that accused No.1 was his friend. That the marriage of accused No.1 was solemnized on 19.09.1999, which was attended by him and he took the photographs of the marriage. That the marriage ceremony was performed at Prem Bhawan, Jammu and Doli left on the next day morning. That the parents of the accused attended the Barat, but they returned in the night itself and were not present at the time of departure of Doli. That at the time of departure of Doli, none of the relatives of the accused No.l was give any Attachi or Bag or Trunk by the complainant’s parents or relatives. However, a Brass Pot containing Gullara was given. On cross examination, the witness stated that Shagun was given on 18th of September 1999 at about 4 p.m at a Hall which was situated between Rehari and Sarwa1. That he did not know all the relatives of the complainant, so he could not tell how many relatives of the complainant were present at the time of Shagun ceremony. That he took snaps of Shagun ceremony. That no TV, Fridge or Scooter was given in the Shagun, but he did not know whether any finger ring or gold chain was given. That he did not know about the ring ceremony. That he could not say whether it was Hall or private residence. That in the ring ceremony, the complainant and accused No.1 gifted finger rings to each other. That his assistant Sanjay Kumar was also accompanying him. That the marriage ceremony was completed at about 12 Midnight. That Parveen Sharma and Shiv Raj were also there, besides other friends of the accused No.1 whose names were not known to him. That at the time of departure of Doli, relatives from both sides were present. That he did not know how many functions were attended by him after this marriage. That Parveen Sharma and Shiv Raj were also there, besides other friends of the accused No.1 whose names were not known to him. That at the time of departure of Doli, relatives from both sides were present. That he did not know how many functions were attended by him after this marriage. That he went by a Van which belonged to the relatives of the accused No.1. That at the time of Lagan one finger ring and Sandoor was given to the complainant. That he did not know whether any other clothes or ornaments were given to the complainant as Wari. That he took the photographs from the Hall upto the Boarding the vehicle at the time of leaving the Hall. DW Parveen Sharma has deposed that accused No.1 was his friend from childhood. That accused No.1 was got married with the complainant on 19.09.1999. That he attended the Barat. That the marriage ceremony started 10-15 p.m. and continued for 1 ½ hours. That he stayed with accused No.1 along with other friends at Prem Bhawan. That on the next day morning the Doli left at about 7 a.m. That at the time of departure of Doli one brother-in-law of accused No.l and DW Ramesh Kumar were present. However, parents of accused No.l had already left in the night itself. That the sister of the accused No. l has also left before departure of Doli. That at the time of departure of Doli complainant’s parents and relatives were present, but no Attachi, Trunk or box was given to accused No. 1 or his relatives at that time. That the complainant’s parents gave Metalic pot which contained Gullara. On cross examination, he stated that he was an employee of Sheep Development Board. That he has come to depose at the instance of accused No.1.That DW Ramesh Kumar was also his friend. That other friends who witness the marriage were Shiv Raj Singh, Suresh and Sardari Lal. That at the time of Lagan and Sapat, he was sitting beside accused No.1. That the complainant was bearing artificial jewelry. That the complainant was also wearing Jai Mala, so he could not say what was wore beneath. That at the time of lagan the accused No.1 made the complainant wear finger ring and Tikka and both these items were of gold. That the complainant was bearing artificial jewelry. That the complainant was also wearing Jai Mala, so he could not say what was wore beneath. That at the time of lagan the accused No.1 made the complainant wear finger ring and Tikka and both these items were of gold. That sisters and one or two brothers-in-law of the accused No.1 were also present at that time, but they left before 4.30 a.m. However, one brother-in-law of accused stayed there. That before Lagan he left an Attachi, containing Wari before Pandit and Purohit, which was given to the girls sitting behind, and they were the relatives of the complainant. That Attachi in question contained clothes but he did not see those clothes. That he could not say whether it contained any ornaments. That he left by Maruti Van and Gullara Pot was also kept in that Van.That the car of the couple was driven by the brother-in-law of accused No.1. That no luggage was kept in the Car of the Bridegroom. That he attended the reception, but did not talk to the complainant. That he did not know about the ornaments wore by the complainant. That accused No.1 had solemnized 2ndmarriage with Sushila. That at the time of second marriage, he had gone to Amritsar, so he did not remember the date of marriage. That he was not invited in the second marriage. 11. The court below after conclusion of trial and hearing the parties, acquitted the accused/respondents on the grounds that Entrustment of property to accused and its mis-appropriation or conversion for their own use or dishonestly using or disposing of that property, have not been proved. Further, court below has also held that complaint failed to prove the fact that she has ever made any demand to accused for return of properties in question. Court below further held that complainant failed to produce the evidence with regard to purchase of articles in question. 12. Relevant findings of court below reads as under:— “To summarize, the complainant has deposed that articles of jewelry and clothes gifted at the time of marriage by the parents were entrusted to her in-laws at the time when the Doli was about to depart. That all these articles were remained with her mother-in-law during her seven months stay at the matrimonial house. That all these articles were remained with her mother-in-law during her seven months stay at the matrimonial house. That on 21.4.2000, when she was thrown out she had nothing except the clothes she wore. That the accused had retained all the belongings, but had refused to take her back to the matrimonial home. That she met accused No.1 at University and demanded her belonging and also called on the Sarpanch of their village. However, the accused never wanted to return her belongings, as they were having bad intentions and were greedy people. But when cross-examined she has stated that she met her husband the accused No.1, she asked him to take her to the matrimonial home and to provide her clothes and ornaments as per the requirement, as she had to attend function and the winter season was also approaching. PW Prem Chand, while corroborating the statement of complainant regarding the items gifted to her, has deposed that all those articles were entrusted to the accused No.1 and has specifically stated that accused No.2 and 3 were not present there at that time. That on 21.4.2000, the accused turned out the complainant and did not care to take her back till date. That they did not demand the articles from the accused as their efforts were to settle the complainant at her in-laws-house. That accused came 2-3 times and he also visited them about a dozen times, but all their efforts failed to materialize. That afterward they came to know that accused had solemnized second marriage. That accused have retained personal belonging of the complainant till date. This witness has categorically stated that no demand was ever made by them to the accused for returning the belonging of the complainant , but has simply stated that accused had not returned the same despite the fact that accused No.1 has solemnized the second marriage. PW Sudarshana Sharma, the mother of the complainant, has also corroborated about the gifting of items enlisted by the complainant. That the complainant was thrown out from the matrimonial house on 21.4.2000 by the accused without returning her belongings till date. That all these items and clothing were entrusted to elder sister of accused No.1at the time of departure of Doli, and were still in the possession of the accused. That the complainant was thrown out from the matrimonial house on 21.4.2000 by the accused without returning her belongings till date. That all these items and clothing were entrusted to elder sister of accused No.1at the time of departure of Doli, and were still in the possession of the accused. On cross examination, she has stated that clothing and ornaments were entrusted to the elder sister of accused No.1 Mst. Guddi, whose real name was Krishna. That at the time of entrustment, her brother, sister -in-law, nephew Sanjay Sharma and other relatives were present. That all these articles were not counted at the time of giving the same to Krishna and some of these articles were wore by the complainant. That all these articles were packed in an Attachi. However, Trunk was also given to pack the remaining articles, if any. That after 21.4.2000, accused No.2 and 3 visited her place twice or thrice, talked irrelevant and left with the plea that they would again come. That once she also along with her husband, sister-in-law went to the house of the accused in Oct 2001, to offer condolence on the demise of accused No.1’s Grandmother. That she met the accused No.3 and asked her to bring her daughter to her matrimonial home, but the latter did not reply and besides that they had no discussion. According to the PW Ashok Kumar, he has attended the marriage of the complainant with the accused No.1 and stayed for the night. That at the time of departure of Doli, the complainant was given a Trunk and an Attachi. That the Trunk was containing clothes and Attachi was also containing clothes and jewelry. That all these articles were entrusted to the relatives of the accused. That the ornaments given to the complainant were retained by the accused. On cross-examination, the witness stated that clothes were put into the Trunk about one hour earlier about the departure of Doli by the complainant’s relatives, but their names were not known to him. That the parents of the complainant handed over that Trunk and Attachi to the relatives of the accused who were ladies. That he could not tell how many suits and Sarees were given to the complainant. That the parents of the complainant handed over that Trunk and Attachi to the relatives of the accused who were ladies. That he could not tell how many suits and Sarees were given to the complainant. Having considered the evidence with regard to the entrustment of ornaments and clothing to the accused, the complainant has made a statement in generalized term that the articles mentioned by her were entrusted to her in-laws as against her specific allegation in the complaint that same were entrusted to the accused. She has further deposed that after marriage, all these jewelry items and clothing remained in the custody of accused No.3 and whenever she had to attend a function, she used to get the clothings and ornaments from her mother-in-law as per the requirement. PW Prem Chand has specifically stated that at the time of entrustment, the accused No.2 and 3 were not present and he handed over all the clothing and ornaments to the relatives (sister and brother-in-1aw) of the accused No.1. PW Sudarshana has named only one sister of accused, whom these articles were entrusted and PW Ashok Kumar has another version. According to him, all these items were entrusted to the ladies from the accused side there. Secondly, according to the complainant, all these articles were put in the Trunk, but according to PW Sudarshana, Trunk was also given in addition to the Attachi to put all those articles which were left after packing the Attachi. PW Ashok Kumar has further made modification by deposing that clothes were put in the Trunk and ornaments and some cloths were put in the trunk and ornaments and some clothings were packed in the Attachi. As evident from the evidence, there is no direct evidence as to the entrustment of the articles enumerated by the complainant to the accused. All that could be inferred from the evidence on record at best could be the entrustment of these articles to the relatives of the accused at the time of departure of Doli and assumption of charge by accused No.3 over those articles afterwards.” 13. These findings of court are neither perverse nor suffer from any infirmity of law with regard to appreciation of facts. These findings of court are neither perverse nor suffer from any infirmity of law with regard to appreciation of facts. In order to prove that an offence under Section 405 Ranbir Penal code is committed, two elements are essential, namely, entrustment with property or dominion over any property and dishonest misappropriation or conversion of such property. The offence is completed only when second ingredient is completed and not before that. Mere retention or entrustment does not make an offence. In the case in hand, complainant had only alleged that property in question was entrusted with accused. There is no specific allegation or evidence on record that the said property has been misappropriated or converted or used or disposed of by accused in violation of any direction given by the complainant. 14. The further finding of court below, reads as under:— “There is another aspect of the matter that needs to be appreciated. The complainant when cross-examined about shops and show rooms from where these articles were purchased and about all the payments made therefor, has named some jewelry items, purchased from N.N. Jewelers, Jain Bazar Jammu by her mother and cousin’s wife. That other ornaments were purchased by her parents from other different shops/places which were not known to her. As regard the clothes, she has stated some were purchased from the show rooms of Monalisa and Jugal Sons and shops at Rehari and Bishnah. That she did not know where the show rooms of Jugal sons and Monalisa were, as the clothes were purchased by her mother. That the payment to the N. N. jeweler was made by her mother in her presence, but she did not know how much amount was paid. That the purchase from the shop at Rehari and Bishnah were made by her alone. That she was not having the bills of all these purchases nor she was aware whether her parents were having any of these bills. According to PW Prem Chand all the ornaments were purchased by the complainant and his wife, so he could not tell the value of the ornaments. That one or two items were purchased from Bishnah for Rs.5-6 thousand. That for purchasing the clothes, he accompanied his wife. That about 10-15 suits and 4-5 sarees were purchased from Purani Mandi for Rs.10-12 thousand. That other clothes were purchased by the complainant. That one or two items were purchased from Bishnah for Rs.5-6 thousand. That for purchasing the clothes, he accompanied his wife. That about 10-15 suits and 4-5 sarees were purchased from Purani Mandi for Rs.10-12 thousand. That other clothes were purchased by the complainant. This witness also could not produce any of the bil1 of these purchases. According to the PW Sudarshana Sharma, the ornaments were purchased from N.N. Jewelers and from Miran Sahib. So she could not tell which ornament was purchased from which shop. That she did not go to the Jeweler’s shop at Miran Sahib, but had sent to PW Ashok Kumar, who was the resident of her village. That she did not remember how much payment was made to the jeweler at Miran Sahib. That clothes purchased by her from Juga1 sons. That she did not accompany her daughter for purchasing any clothes but perhaps she once accompanied her to a shop at Rehari. That she could not tell how much amount was spent on purchasing clothes. PW Ashok Kumar has not mentioned anything about being deputed to purchase any ornament as stated by PW Sudarshana. It has come in the evidence of PW Prem Chand that he had retired as teachesr from Education department and his wife PW Sudarshna Sharma was also serving as Lecturer in the Education department and complainant is their elder daughter. So both these witnesses are well literate. PW Prem Chand did not purchase any ornament and accompanied his wife only once for purchase of 10-15 suits, 4-5 Sarees from the shop at Purani Mandi. PW Sudarshana has not made any mention about the purchase from Purani-Mandi, rather she has named show rooms of Jugal sons. As regard the ornaments, she has not been able to recollect which items were purchased from N.N. Jewelers. So here is the case, when well-educated parents solemnizing the marriage of their elder daughter could not concur even on the shop from where the clothes were purchased. As regard the ornaments the father stayed away, but deputed a co-villager to make purchases for him. Whereas the mother could not state, which articles were purchased by her, when she herself is stated to have purchased the same from N. N. Jewelers, Jain Bazar, Jammu. As regard the ornaments the father stayed away, but deputed a co-villager to make purchases for him. Whereas the mother could not state, which articles were purchased by her, when she herself is stated to have purchased the same from N. N. Jewelers, Jain Bazar, Jammu. So the evidence of these witnesses that articles listed in the complaint were at all given to the complainant at the time of marriage comes under serious clouds of doubt and cannot be accepted reality.” 15. This observation of court below is also not perverse as existence of ‘Stridhan’ must be proved by way of bills, when there is a specific version that complainant purchased the items from specific shop/s and obtained bills; if bills are not produced then this fact can be proved by calling the seller of these items from concerned shop/s. In present case, neither bills have been proved nor any concerned person/s from said shop/s have been produced. 16. Next court below has held that ‘Having carefully considered the evidence on record and believing for a moment that all the articles enlisted in the complaint were gifted to the complainant and same were entrusted to the accused, but there is no evidence as to the demand of the same by the complainant and consequent refusal by the accused. Believing for a moment the evidence led by the complainant despite all short comings in it, even then refusal to return is not enough, unless it is coupled with the element of dishonestly volitional act. Therefore, the ingredients necessary for constituting offence punish-able U/s 406 Ranbir Penal code are clearly lacking. Rather, it seems that present complaint is the outcome of failure of matrimonial relations of the parties extenuated by the solemnization of the second marriage by the accused No.1.’ 17. I have carefully gone through the complaint, in which, general allegations have been made in para no.7 that complainant was turned out of her matrimonial home and all personal clothing’s of the complainant and ornaments presented to her at the time of marriage by her parents have been retained by accused with an intention to misappropriate the same. The same aversion has been made in para 9 that despite several request made by complainant and her parents to return the dowry articles ,the accused have not bothered to do needful. The same aversion has been made in para 9 that despite several request made by complainant and her parents to return the dowry articles ,the accused have not bothered to do needful. Even in para no.11 which deals with cause of action, it has been stated only that marriage took place and properly was entrusted at Jammu, so court has jurisdiction. No date, time and year has been mentioned as to when articles were given and when she demanded the same are totally missing in complaint. Even in para no.11 there is no mention of date of demands of dowry articles. 18. In 2010 Cr.L.J 448 SC in case titled Neelu Chopra and another Vs. Bharti, it has been held as under:— “4. We have seen the complaint very carefully. From a bare reading of the complaint it is apparent that the problem started barely after six months of the marriage. In paragraph 3 of the complaint, it is stated that all the accused came to complainant’s parents house at Gidderbaha and asked her parents to give the complainant more gold and other articles as dowry otherwise they would leave the complainant there and Rajesh would be married second time. In paragraph 4, the complaint is against Rajesh in the sense that the accused Rajesh asked the complainant to hand over the ornaments and clothes to his parents lest they are lost in the way. On reaching to Delhi when the ornaments were asked back by the complainant, they were not returned back. When we see the complaint as a whole it is basically against the accused Rajesh. All the allegations are against Rajesh. There is undoubtedly some reference to the present appellants, but what strikes us is that there are no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description and as to the date when the ornaments were asked back and were refused. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. What strikes us more is that even in paragraph 10 of the complaint where the complainant says that she asked for her clothes and ornaments which were given to the accused and they refused to give these back, the date is significantly absent. It seems from the order taking cognizance that the learned Magistrate has mentioned about the version of the complainant is supported by Bhagwati and Dharampal to the fact that the ornaments were entrusted to Krishan Saroop and Rajesh while clothes were entrusted to Rakhi and they refused to hand over the same. Even their statements could not be better than the vague complaint. Even about the clothes, the date on which they were handed over to Rakhee who happens to be the daughter of the present appellants and the other details are very significantly absent. It was also the version of the complainant that she was beaten in support of which she has filed a certificate from AIIMS hospital, New Delhi. However, in the complaint, it is not seen as to on which date she was beaten and by whom. It is significant to note that the matter against the Rakhee, the 4th original accused has already been dropped as she was in fact not even the resident of the same house. 5. In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants. 6. The High Court has merely mentioned that the allegation in the complaint is of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. ...” 19. For what has been discussed above, this appeal is devoid of any merit. It is dismissed, accordingly.