Delhi District Court
Smt. Ved Kumari vs State on 1 November, 2010
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal Revision No. 34/10
Unique case ID No. 02404R0237742010
1. Smt. Ved Kumari
Wife of late Sh. Sri Krishan Sharma
R/o RZ-12B, J-Block,
Old Roshanpura Extension,
Najafgarh, Delhi.
2. Amar Singh
Son of late Shri Jai Narain Sharma
R/o RZ-18B, J-Block,
Old Roshanpura Extension,
Najafgarh, Delhi.
.....Petitioners
Versus
State
.......Respondent
Date of institution of the case: 23/09/10
Arguments heard on: 01/11/2010
Date of Decision: 01/11/10
ORDER
This is a revision petition U/s. 397 of CrPC against impugned order dated 13/08/2010 of the learned Trial Court.
In brief, the charge-sheet has been filed against all the three accused persons U/s. 498A/406/34 of IPC. Vide impugned order, the learned Trial Court opined that there is prima facie case for framing charge U/s. 498A/34 of IPC against all the accused persons and there is prima facie case Cr. No.34/10 1/8 U/s. 406 of IPC against accused Dheeraj Kaushik and Ved Kumari.
Accused Ved Kumar and accused Amar Singh have challenged the impugned order on various ground.
It is contended that learned Trial Court has failed to appreciate the fact that during the proceedings, both the revisionists as well as accused Dheeraj Kaushik were admitted on anticipatory bail subject to payment of Rs. 2,25,000/- beside return of alleged dowry articles, which complainant has already collected and only after paying the above amount, the accused persons were admitted to anticipatory bail. It is further contended that necessary ingredients for framing of charge against the accused persons under both the sections are missing from the complaint. Neither there are any allegations regarding demand of dowry coupled with physical and mental harassment nor there are any allegations regarding entrustment of dowry articles to both the revisionists. It is further contended that the judgments relied upon by both the revisionists have not been considered in a correct perspective by the learned Trial Court. In support of these contentions, learned counsel for both the revisionists has relied upon following judgments:
i) Criminal Revision No. 88/2008/2002 titled as State Vs. Devender Kumar & Others;
ii) Criminal Appeal No. 949 of 2003 of Hon'ble Supreme Court of India titled as Neelu Chopra Vs. Bharti;
iii) Criminal Appeal No. 8 of 2002 of Hon'ble Supreme Court of India titled as Dilawar Balu Kurane Vs. State of Maharashtra;
iv) Criminal Appeal No. 1069 of 2004 of Hon'ble Supreme Court titled as State of Punjab Vs. Preitam Chand and Ors.;
v) DLT 179, Vol-II (2001) DMC 690 titled as Anu Gill Vs. State & Another;Cr. No.34/10 2/8
vi) (2003) 1 Femi-Juris C.C. 583 (Del) titled as Savitri Devi Vs. Ramesh Chand & Ors.;
vii) Criminal Appeal No. 837/09 and 838/09 titled as G.R. Lokanath & Others Vs. State of Karnataka;
viii) Criminal Revision No. 267/2008 of Hon'ble High Court of Delhi titled as Chander Kanta Lamba & Ors. Vs. State & Ors. and lastly
ix) Criminal M.C. No. 2645-53/2005 of Hon'ble High Court of Delhi titled as Sanjeev Kumar Aggarwal & Ors. Vs. State & Anr.
On the other hand, learned Addl. PP for State assisted by counsel for complainant submits that from the complaint, statements recorded U/s. 161 CrPC of the complainant and the witnesses, list of dowry articles and other statements of the complainant, prima facie offences U/s. 498A/406/34 of IPC are made out against the accused persons. In support of the same, counsel for complainant has relied upon following judgments:
i) 2009(2) JCC 891 titled as Ravi Kumar Vs. State (NCT) of Delhi & Anr.
ii) 2009 (1) JCC 11 titled as Dr. Amrit Lal Garg & Anr. Vs. The State.
iii)2008(4) JCC 2819 titled as Sanghi Brothers Vs. Sanjay Choudhary & Ors.
iv)2009(2) JCC 1514 titled as Dilawar Mir Vs. CBI I have considered the arguments of both the parties and have gone through the TCR with the judgments relied upon.
The case was registered against the accused persons on the complaint dated 30/04/2007, wherein the complainant has alleged that the Cr. No.34/10 3/8 accused persons have been torturing her mentally and physically and pressurising her to bring more and more money and household gifts from her parents. It is also alleged that accused persons forced her to sign on the cheques and withdrew an amount of Rs. 95,832/- from her Saving Bank account. It is also alleged that accused persons demanded Rs. Five lac as gift from her parents on behalf of celebrating the birth of her son and gifts to the family members, which could not be fulfilled by her parents due to their financial constraints. Resultantly, she was manhandled, beaten and thrown out of the matrimonial house forcibly on 01/08/2006 with the warning that unless their demand of Rs. five lac is not fulfilled, then they will not accept her and her son.
Learned counsel for both the revisionists has contended that the complainant has not alleged anywhere that any dowry was demanded and the same is not coupled any mental or physical torture or harassment. To my mind, gift is a matter of voluntary giving and the same cannot be demanded. If anyone has demanded gifts, then certainly it cannot have any nature of gift and the same is demand and in circumstances, it can be said that this was the demand of dowry and nothing else.
Regarding the mental and physical torture/harassment, complainant has alleged that she was mentally and physically tortured and was pressurised to bring more and more money. Accused persons demanded Rs. five lacs on that account. When the same was not fulfilled, they threw the complainant and her son from the matrimonial house on 01/08/2006 with the warning that unless there demand is not fulfilled, they will not accept her and her son. In my opinion, throwing out the complainant with her son out of the matrimonial house and not accepting her and her son in the matrimonial house, in itself, is physical/mental torture and harassment. The same is coupled with the demand of Rs. five lacs, which could not be certainly termed as demand of gift, but from the circumstances, it is clear that it was a demand of dowry giving colour Cr. No.34/10 4/8 of the gift. So, the judgments relied upon by learned counsel for both the revisionists are not applicable to the facts and circumstances of the present case in respect of offence U/s. 498A of IPC. The contentions of learned counsel for both the revisionists are not acceptable that the demand of dowry coupled with mental and physical harassment and torture is missing from the complaint. So, prima facie offence U/s. 498A/34 of IPC is made out against all the three accused persons.
In respect of offence U/s. 406 of IP'C, certainly there are no allegations regarding entrustment of stridhan by the complainant to accused persons or any allegations of misappropriation of the same by the accused persons in complaint dated 30/04/2007.
Learned counsel for the complainant has drawn the attention of the court towards the list of stridhan, which was given during the CAW Cell proceedings by the complainant dated 06/06/2007. In reply to the same, one admitted list was given on 19/06/2007 by the husband of the complainant. Learned counsel for the complainant has further drawn the attention of the court towards the CAW Cell proceedings, wherein it is mentioned that admitted list given by the husband of the complainant is incomplete and she wants to take her stridhan according to her list. It is also mentioned in the final report of the CAW Cell that complainant is telling that her stridhan and jewellery are lying with her in-laws and as she has not received the same, so, she wanted legal action against them.
Learned Counsel for the complainant has also pointed out another application of the complainant dated 07/05/2007 in the CAW Cell proceedings, wherein she has requested that she be helped to settle the dispute as she wanted to live with her husband. Learned counsel has further contended that in fact the first complaint dated 30/04/2007 was given with a view to settle the matter only, so, nothing was alleged for offence U/s. 406 of IPC, but when the settlement did not take place, then complainant disclosed the facts Cr. No.34/10 5/8 about Section 406 of IPC. Learned counsel for the complainant has further contended that according to application dated 06/06/2007 of the complainant, she has requested that her stridhan be got returned from her in-laws.
Learned counsel has further pointed out that statement of the complainant recorded U/s. 161 CrPC dated 28/05/2008, wherein she has alleged that her stridhan was in possession of her mother in law Ved Kumari and her husband Dheeraj Kaushik, who have refused to handover the same.
So, in all, as pointed out by learned counsel for the complainant, these are the allegations for offence U/s. 406 of IPC. Certainly at the first hand, complainant did not make any allegations regarding offence U/s. 406 of IPC in complaint dated 30/04/2007 and later on, the list of dowry articles was given and some applications were given. Even the statement recorded U/s. 161 CrPC is of May, 2008 i.e. after about one year of the original complaint, on which, this case has been registered. Although, all these statements and other proceedings can be read in continuation of her complaint, but the question is whether complainant entrusted her stridhan to the accused persons. It has not been alleged by the complainant anywhere in any complaint/applications or in any statement. Simply complainant has stated that it was in possession of accused Ved Kumar and accused Dheeraj Kaushik. That may be, but mere possession cannot be termed as entrustment.
Further, the other requirements of Section 405 of IPC deal with criminal breach of trust, is that, whosoever being in any manner entrusted with property, or with any dominion over property, then certainly, as alleged by the complainant, accused Ved Kumari and accused Dheeraj Kaushik were having dominion over the property i.e. stridhan of the complainant, which she left behind, when she was thrown out of her matrimonial house, as alleged by her on 01/08/2006. It is admitted fact that complainant has requested for return of stridhan to the police only and she never demanded her stridhan from the accused persons. So, it cannot be said as to whether accused persons were Cr. No.34/10 6/8 willing to return the stridhan or were refusing to return the same.
Another necessary ingredient of Section 405 of IPC i.e. criminal breach of trust is that whosoever entrusted with the property or any dominion over the property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property. There are no allegations in the complaint that accused persons dishonestly misappropriated her stridhan or converted the same to their own use because complainant after marriage went to her matrimonial house with her stridhan and it was kept there. Simply the accused persons were having dominion over the same being the in-laws of the complainant, but it was lying there. So, neither they dishonestly misappropriated the same nor converted the same for their own use. Even it cannot be said that the accused persons dishonestly used or disposed of any stridhan of the complainant. Mere allegation that the stridhan of the complaint was in possession of accused Ved Kumar and Dheeraj Kaushik is not sufficient. No date for entrustment has been given. Even it is not alleged that any entrustment was made. It is also not alleged as to when complainant demanded her stridhan back from the accused persons and when they refused to give the same. If there is any shortcoming in the list of stridhan and admitted list, then both the parties are making counter allegations against each. In support of the same, I rely upon Criminal M.C. No. 2645-53/2005 titled as Sanjeev Kumar Aggarwal & Ors. Vs. State & Anr. , wherein it has been held that "
"The basis requirement to bring home the accusations under Section 405 is to prove con-jointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it.
"In the present complaint, a sweeping statement has been made by the complainant that her istridhan was entrusted to the family of her husband.Cr. No.34/10 7/8
There are no clear and specific allegations about the entrustment of istridhan to any of the present petitioners. Complainant has not specifically mentioned as to which item of dowry was entrusted to which of the present petitioners.
In view of the same, prima facie offence U/s. 406/34 of IPC is not made out against accused Ved Kumari.
Accordingly, the order of the learned Trial Court regarding prima facie case for framing of charge U/s. 498A/34 of IPC against the accused persons is upheld. The same does not suffer with any illegality or irregularity. The second part of the impugned order is set aside regarding prima facie case made out for offence U/s. 406 of IPC against the accused Ved Kumari as the same is not sustainable in the eyes of law, as discussed above.
The revision petition is allowed accordingly. Accused Ved Kumari is discharged for offence U/s. 406 of IPC.
The revision petition is disposed of as above. TCR be sent back with the copy of the order. Parties are directed to appear before learned Trial court on 03/11/2010.
File of revision petition be consigned to record room. Announced in Open Court on dated 1st of November, 2010 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi Cr. No.34/10 8/8