Delhi District Court
Sanghmitra vs State Page No. 1 on 1 October, 2012
1
IN THE COURT OF MS. NEENA BANSAL KRISHNA
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
Criminal Appeal No. 46/12
Sanghmitra
wife of Mr. Ghanshyam Soni
R/o K-97, D, Sheikh Sarai
New Delhi.
versus
State
....Respondent
FIR No. 1098/2002
under Section 406/498A/34 IPC
Police Station Malviya Nagar
Date of institution of the petition : 04.09.2008
Date of reserving judgment/order : 26.09.2012
Date of Order/ judgment : 01.10.2012
JUDGMENT:
1. This is the revision petition under Section 397 CrPC against the order dated 04.06.2008 filed by the complainant Sanghmitra vide which the ld Metropolitan Magistrate had discharged the accused/respondent no.1 under Section 406 IPC but had directed framing of charge under Section 498A IPC.
2. The facts, in brief are that the complainant was married to accused Ghan Sham Soni, who are Sub Inspector in Delhi Police , according to Hindu (Buddhist) rites and ceremonies on 28.02.1998. The complainant Sanghmitra had eventually made a complaint to the police Sanghmitra Vs State Page No. 1 CR No. 46/12 2 dated 06.12.1999 that she was subjected to torture and dowry harassment and on her complaint FIR under Section498A/406 IPC was registered. Eventually, the charge sheet was filed against accused under Section 498A/406/34 IPC. Ld. Metropolitan Magistrate took cognizance on 27.07.2004 and summoned the accused Ghan Shyam Soni, his father Mohan, his mother and five sisters ( since died). Vide impugned order on charge dated 04.06.2008, ld M.M. observed that no charge under Section 406 IPC was maintainable against any of the accused persons while they were liable to be charged for the offence under Section 498A IPC.
3. Aggrieved by the said order of discharge under Section 406nIPC, the present revision has been filed by the complainant.
4. Before considering the merit of this case, it would be pertinent to mention that the accused persons had filed a separate revision before the ld. Sessions Judge against the order on charge dated 04.06.2008 challenging the framing of charge under Section 498A IPC. All the accused persons were discharged under Section 498A IPC by ld Additional Sessions Judge vide order dated 04.10.2008 against which Criminal Revision has been filed before the High Court of Delhi, where the matter is still pending.
5. Ld. counsel on behalf of the complainant has argued that charge sheet had been filed under Section 498A/406 IPC. Even if the accused have been discharged under Section 498A IPC, the present revision against the order of discharge of the accused persons under Section 406 IPC is still maintainable as Section 498A IPC and Section 406 IPC are two are separate offences. If, it is prima facie shown that offence under Section 406 IPC was committed by the accused persons, then case can still be continued under Section 406 IPC. It is further argued that the complainant had given the list of dowry articles and had Sanghmitra Vs State Page No. 2 CR No. 46/12 3 alleged that her articles had not been returned to her at the time when she was thrown out of her matrimonial home. At the stage of framing of charge, this evidence is sufficient to make out a prima facie case under Section 406 IPC. It is further submitted that the question of limitation viz. 406 IPC does not arise as the dowry articles have still not been returned to the complainant as it is mentioned in the complaint itself that she was able to only bring back her motorcycle.
6. It is further argued that order of ld. M.M. is liable to be set aside and the accused are liable to face trial under Section 406 IPC. It has been pointed out by the ld. Addl PP that the accused persons have also been discharged under Sectiom 498A IPC by ld. Addl Sessions Judge and there is nothing pending before any Court and, therefore, revision petition itself has become infructious. ld. counsel for the complainant submits that even though the accused persons have been discharged under Section 498A IPC by ld. Addl. Sessions Judge, the revision is still pending before High Court of Delhi. More over, the offence under Section under Section 406 IPC was an independent offence and if it is shown that prima facie case was made out under Section 406 IPC, the accused persons can still be tried for the said offence independent of Section 498A IPC.
7. Ld. counsel on behalf of the other accused persons has argued that there is no infirmity in the order of ld Metropolitan Magistrate who had rightly observed that mere submission by the complainant that she was not permitted to take her articles when she was turned out of her matrimonial home on 08.09.1999 and that she was only able to fetch motor cycle on 07.05.2002, would not make out an offence under Section 406 IPC. There were no averments made by the complainant that she had demanded the return of her articles from the accused persons or that Sanghmitra Vs State Page No. 3 CR No. 46/12 4 they had refused to return her articles. Ld counsel had further argued that in the present case the charge sheet had been filed beyond the period of limitation and the cognizance itself was bad. This has already been observed by ld. Additional Sessions Judge in his order dated 04.10.2008 while discharging the accused persons under Section 498A IPC. Once the ld. Additional Sessions Judge has given a finding that the cognizance in itself that was taken in this case was beyond period of limitation and was bad, nothing more survives in the present revision, which also arises from the same charge sheet. The ld Metropolitan Magistrate could not have taken the cognizance beyond the period of limitation, and therefore the accused have been rightly discharged. There is , therefore, no merit in the present revision which is liable to be dismissed.
8. I have heard the arguments and have perused the record. My observations are as under:
9. It has been very rightly observed by the ld. Metropolitan Magistrate in her impugned order that only averments made by the complainant in the complaint were that she had left her matrimonial house on 06.12.1999 and thereafter with the help of police she had been able to fetch motorcycle from the house of her husband/accused Ghan Shyam Soni on 07.05.2002.
10. The offence of criminal breach of trust is when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it or converts its to his own use as was explained by the Supreme Court in the case of Sushil Kumar Gupta Vs Joy Shanker Bhattacharyajee AIR 1971 SC 1543.
Term "entrustment" entail facts as stated here under:
i) entrustment may arise in "any manner" whether or not it is Sanghmitra Vs State Page No. 4 CR No. 46/12 5 fradulent, and
ii) must have acquisition or dominion over the property ( Superintendent Remembrancer of Legal Affairs, West Bengal Vs S.K. Roy( 1974)4 SCC 230).
11. In the context of dowry articles being handed over to the in- laws it was explained in the case of Sher Jang Singh and another Vs Smt . Virender Kaur 1973 Cri.L.J. 493( P&H) that it might be that some of the articles which have been presented to her are for the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that her husband or her parents-in-laws have converted them for their own use the ornaments which she had entrusted to them thenit would be sufficient for the Courts to assume that such ornaments were the subject matter of criminal breach of trust.
12. In Basudev Patra Vs Kanhai Lal Halder AIR 1949 Cal. 207, the High Court of Calcutta had observed that the illustration of Section 405 IPC clearly shows that the property comes into the possession of the accused either by any express entrustment or by some process placing accused in a position of trust. If the ornaments are handed over to the accused by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after they have been used for the purpose for which they were handed over to them, this amounts to entrustment.
13. This ratio was fully proved in Velji Raghavji Patel Vs State of Maharashtra AIR 1965 S.C. 1433 wherein it was explained that in order to establish " entrustment of dominion" over property to an accused person, mere existence of that person"s dominion over property is not enough. It must be further shown that said dominion was the result Sanghmitra Vs State Page No. 5 CR No. 46/12 6 of entrustment.
14. The term "entrustment" was explained in State of Gujrat Vs Jaswantlal Nathalal (1968) 2 SCR 408 by the Supreme Court thus:
...........the expression "entrustment" carries with it the implication that the person handed over any property or on whose behalf the property has handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.
15. It is not only the dominion over the articles which is required to be shown for constituting an offence under Section 406 IPC. It is further required to be established that there was misappropriation of the goods. When would this offence under Section 406 IPC be completed was explained in the case of Avtar Singh and another Vs Kirpal Kaur Criminal Misc No. 2144-M of 1979 decided by Punjab and Haryana High Court on 16.08.1979, it was held that where certain thing are lying in trust with the person, offence of dishonest misappropriaiton would be committed on the date the demand for return of the entrusted articles is made and the same is declined.
16. Full Bench of High Court of Punjab and Haryana in the case of Vinod Kumar Sethi and others Vs. State of Punjab AIR 1982 Punjab 372 had observed that between the husband and the wife there is always a jointness of control and possession of the properties of the spouse within the matrimonial home and that it goes against the very concept of entrustment of his or her property by one spouse to the other. Mere handing over of the articles of dowry to the husband and other Sanghmitra Vs State Page No. 6 CR No. 46/12 7 relatives adt the time of marriage does not constitute entrustment in the sense of the word used in the Section 405 IPC and it does not amount to passing of dominion over those articles to them. Such entrustment can only be by subsequent conscious volition but in the absence of such an act, the allegations of breach of trust cannot be sustained.
17. In the present case, there are no averments what so ever to show that the complainant had ever entrusted her articles to the accused persons or that she had demanded them back despite which her articles were not returned. Merely not taking her goods at the time of leaving her house would not be sufficient to even prima facie make out the case under Section 406 IPC.
18. Similar facts as under consideration in the present case arose for consideration in the case of Jagjit Singh Vs Ravinder Kaur II(2004) DMC 599( J&K) wherein also the wife had claimed that various dowry articles had been given to her at the time of marriage and that she was not treated well by the accused persons i.e. her husband and family members after her marriage and they made dowry demands and finally she was turned out of her matrimonial home without her dowry articles being returned to her. It was observed that these averments in itself were not sufficient to constitute an offence under Section 406 IPC.
19. In this context it would also be pertinent to mention that the allegations made in the complaint are only upto 06.12.1999 while cognizance in the present case has taken on 27.07.2004 i.e. beyond of period of three years. The charge sheet has been filed under Section 498A IPC and 406 IPC which are both punishable by sentence of maximum three years for which the limitation provided is of three years. The cognizance , therefore, has been taken beyond the period of limitation ie after about five years of commission of alleged offence. It is Sanghmitra Vs State Page No. 7 CR No. 46/12 8 no doubt, true that when the charge sheet is filed before ld M.M. beyond period of limitation their exists power under Section 473 CrPC to condone such delay in filing of challan on showing sufficient reasons, but in the present case, neither any application was moved by the prosecution for condonation of the delay nor was the delay condoned at the time of taking cognizance. Section 190 CrPC read with Section 468 and 473 CrPC shows that the question of condonation of delay has to be considered and decided by the ld M.M. at the time of taking of cognizance of the offence itself and not subsequent thereto. The bar contained in section 468 CrPC is absolute and cannot be ignored except by express order of condonation of delay.
20. In the case of Arun Vyas Vs Anita Vyas AIR 1999 SC 2071, it was observed that if cognizance is taken in a complaint barred by limitation, no charge in such matter can be framed and the accused is entitled to be discharged. It was further observed that in case cognizance is taken in a time barred challan, the appropriate stage for the accused to plead his discharge is the stage of framing of charge, he need not wait till the completion of the trial. The ld M.M. would not commit any illegality in considering the discharge of the accused at the stage of framing of charge, if the facts so justify.
21. In the present case, ld MM could not have condoned the delay in filing the challan at the stage of framing of charge as it was had already become time barred. Once the cognizance itself was bad being barred by limitation, the charge could not have been framed under any of the sections and the accused were entitled to be discharged. The accused are ,therefore, also entitled to discharge on the ground of charge sheet being barred by limitation.
22. There is no merit in the present revision and same is hereby Sanghmitra Vs State Page No. 8 CR No. 46/12 9 dismissed.
23. Trial court record be returned along with copy of this order.
24. Revision file be consigned to record room.
Announced in the open
court on 01.10.2012 ( Neena Bansal Krishna )
Additional Sessions Judge-01
Sanghmitra Vs State Page No. 9
CR No. 46/12