Delhi District Court
State vs . Suresh Bali on 23 July, 2013
1
IN THE COURT OF MS. PRIYA MAHENDRA, METROPOLITAN MAGISTRATE
MAHILA COURT-02 (SOUTH WEST), DWARKA COURTS, NEW DELHI
FIR NO: 511/01
PS: NAJAFGARH
U/s: 498A/406/34 IPC
STATE VS. SURESH BALI
JUDGMENT
Date of institution : 24.12.2002
Name of the complainant : Smt. Maya
Name & address of the accused : 1. Accused Suresh Bali
S/o Sh. Kishan
2. Accused Kishan Lal
S/o Sh. Ram Lal Bali
3. Accused Kanta
W/o Sh. Kishan Lal
All R/o House no. 363, Hakikat Nagar,
Kingsway Camp, Delhi.
4. Accused Vishnu Dutta
S/o K.K. Dutta
5. Accused Nina Dutta
W/o Sh. Vishnu Dutta
Both R/o 469, Puchimabad, JNU, Delhi
Offence Complained of : U/s 498A/406/34 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date of announcing of order : 23.07.2013
BRIEF FACTS:-
1. The case of the prosecution is that the accused Suresh Bali (husband), Kishan Lal (father-in-law), Kanta (mother-in-law), Vishnu Dutta (nandoi) and Nina Dutta (nanad) subjected the complainant Manju to cruelty during FIR No. 511/01 State Vs. Suresh Bali 1/19 2 subsistence of her marriage with accused Suresh Bali solemnized on 04.12.1999 and thereby committed an offence under Section 498A IPC r/w Section 34 IPC. Further husband Suresh Bali committed breach of trust in respect of the stridhan articles of the complainant Rajni and thereby committed an offence under Section 406 IPC.
2. Story of prosecution:-
The criminal law was set into motion by the complainant by filing a written complaint before CAW Cell Nanakpura on 22.03.2001. In the complaint, she has stated that her marriage was solemnized with accused Suresh Bali on 04.12.1999 according to Hindu rites and ceremonies. Her parents solemnized the marriage with great pomp and show and spent an amount of Rs. 3 lacs in the marriage. They gave sufficient jewellery and articles as dowry as per the list of the articles filed by the complainant alongwith the compliant. However, the accused persons were not happy with the dowry received and started taunting the complainant for brining insufficient dowry from the very first day of the marriage.
After 10-15 days of her marriage, the husband of the complainant started beating and abusing the complainant. He started quarreling the complainant for compelling her parents to give Colour TV, scooter and fridge. The said demands were also repeated by her father in law and mother in law. Her sister in law used to tell the complainant to ask her parents to give one gold earring for her sister in law. The husband of her sister in law Vishnu Dutta also taunted the complainant that he has not been given anything in the marriage by her parents and her parents should give one gold ring and gold bracelet. The said demands were raised by her brother in law despite the fact that on the occasion of marriage, the parents of the complainant gave one gold chain to her brother in law. The parents of the complainant were unable to fulfill the dowry demands of the accused persons on FIR No. 511/01 State Vs. Suresh Bali 2/19 3 account of which the accused persons used to abuse her parents in filthy language. They also started casting aspersions on her character. Every day the husband of the complainant used to beat her after consuming alcohol and her father in law and mother in law also instigated him against the complainant. The complainant tried to commit suicide after 1 ½ years of her marriage on account of cruelty perpetrated upon her by accused persons. It is stated that sister in law alongwith her husband used to come matrimonial house after 4-5 days and instigate the husband of the complainant against complainant. The husband of the complainant and husband of his sister used to consume alcohol till late night and after consuming alcohol, assaulted and abused the complainant. On resistance of complainant, her sister in law also used to help them by forcibly holding her and she was mercilessly beaten by her husband and husband of her sister in law. In order to silence the complainant, they used to gag her mouth with cloth. The complainant was made not to eat anything and remain hungry for 2-3 days in her room. On the occasion of first holi her sister in law alongwith her husband came to her matrimonial house and she was mercilessly beaten up by all the accused persons. It is further stated that complainant has a daughter aged around 4 months and was born in her parents house as before her birth, her brother in law left the complainant in her mother's house in three wearing clothes after all the accused persons beaten her mercilessly. All the istridhan articles of the complainant are in her matrimonial house. Her husband did not bear the expenses of birth of her daughter and her parents borne all the expenses of the birth of her daughter.
3. The charge sheet was filed in the court under Section 498A/406/34 IPC. The cognizance was taken for offence U/s 498A/406/34 IPC and accused FIR No. 511/01 State Vs. Suresh Bali 3/19 4 persons were summoned. The copies were supplied to the accused persons U/s 207 Cr.P.C. Vide order dated 08.12.2003, charge was framed against the accused Suresh Bali U/s 498A/406/34 IPC and other accused namely Kishan Lal, Kanta, Vishnu Dutta and Nina Dutta were served charged U/s 498A/34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case prosecution has examined 2 formal police witnesses and 2 public witnesses. I shall discuss the testimony of the public witnesses later in detail.
5. Brief testimony of official witnesses:-
PW-2, ASI Jai Pal Singh, is the Duty Officer and on 24.09.2001, at about 08.10 PM he received a complaint alongwith letter no. 354/ACP/CAW Cell Mark-X. He proved registration of FIR Ex. PW2/A. The accused persons opted not to cross-examine witness.
PW-3 SI Sunil Kumar, has stated that on 24.09.2001, he received complaint from CAW Cell and case was registered on 31.10.2001. Suresh and his father has produced istridhan articles in the police station and the same was seized vide seizure memo Ex. PW1/D. Same was handed over to the complainant and her father in view of the order passed by court. On 15.11.2001, the marriage card as produced by the complainant was seized vide Ex. PW3/A. The accused were arrested formally after getting anticipatory bail from the court.
In his cross-examination, he has stated that istridhan articles was produced by the accused persons on their own and not on notice U/s 160 Cr.P.C. He did not recorded statement of any neighbour from matrimonial home. He FIR No. 511/01 State Vs. Suresh Bali 4/19 5 stated that he is not aware that the parties have reached an amicable settlement in panchayat and as per the said settlement the accused has given Rs. 1 lac to the complainant. No document, receipt, bill of ownership of istridhan articles was handed over to him by the complainant. He denied the suggestion that he did not investigate the case properly. He stated that he is not aware that sister in law of complainant and her husband got married 15 years prior to the marriage of complainant. But he stated that he knows that they were residing separately in IIT. He admitted that parents in law of complainant are aged and even at the time of incident, were of old age. Prior to the complaint made to CAW Cell he never received any complaint from complainant and he cannot say if any other complaint prior to complaint made to CAW Cell, was lodged by the complainant against the accused person.
6. All the accused persons U/s 313 Cr.P.C asserted their innocence and stated that they have been falsely implicated. In his examination U/s 313 Cr.P.C the accused Suresh Bali stated that complainant always wanted him to stay in her parent's house as her mother was bedridden and on his refusal the complainant implicated him in a false complaint. Moreover, earlier an amicable settlement was reached between him, his family, complainant and family of complainant and he had even made payment of Rs. 1 lac to the complainant but she later on resiled from the said settlement after receiving payment. The accused Vishnu and Nina also stated in their examination U/s 313 Cr. P.C that they were residing with their family separately and their house was 32 Kms away from the matrimonial house of the complainant.
FIR No. 511/01 State Vs. Suresh Bali 5/19 6
7. The accused persons lead defence evidence and examined 3 witnesses in support of their case. DW-1, is accused Suresh Bali, DW-2 is accused Vishnu Datta and DW-3 is Jaspal Singh, neighbour of accused persons.
8. DW-1, Suresh Bali in his evidence admitted marrying to Manju but stated that she was showered love, affection and respect by him as well as his parents. In order to show good time spend by the complainant with him and his family, he placed on record the photographs of different occasions celebrated by the complainant with accused Suresh Bali and his family after marriage of the complainant in which the complainant was having nice time with his family as Mark P-1 to P-16. He further stated that his wife always insulted him and his family. She behaved in a very rude and arrogant manner and refused to perform household chores. She also insisted upon him to leave her old and sick parents and live with her in a separate house in her parental house. He always tried to persuade his wife to respect his family and not to insist deserting his old parents but she never relented. He aways tried to keep her happy and provided her all comforts according to his means. When his wife got pregnant, he provided her all comfort and medical care. During medical examination of his wife at Hans Charitable Hospital on 21.03.2000 it was revealed that she was suffering from decease HBSAG (hepatitis B). He got her treated from 21.03.2000 to 27.03.2000 and bear all the expenses of her treatment. Her wife confessed that she is suffering from said decease prior to her marriage. He placed on record the medical record of his wife as Ex. DW1/A to Ex. DW1/L. On 28.03.2000, the complainant abused and insulted him that he did not accede to her demand for living separately from her parents and she gave him a violent push thereby he fell down and sustained bodily pain. On 29.03.2000 at 11/11.30 AM she left alongwith FIR No. 511/01 State Vs. Suresh Bali 6/19 7 her parents with all her istridhan without informing him. He alongwith her parents and one Neeraj Sharda went to the house of parents of his wife and requested her to come back to matrimonial house and live with him but she refused. He and his family was insulted and was even thrown out of the parental house of complainant. On receiving notice from CAW Cell, he was shocked and attended all hearing in CAW Cell without any fail and repeated his offer to live with him. The complainant plainly refused. He borne all the expenses of delivery of her daughter born in October, 2000 and after her birth also convened a panchayat on 27.09.2001 for persuading her to return to the matrimonial house but she refused. On her refusal to cohabit with him, settlement was reached and it was agreed that as a full and final settlement he shall return the admitted list of articles and also pay an amount of RS. 1 lac to the complainant and his daughter. Accordingly, he paid her an amount of RS. 1 lac by way of two pay orders of Rs. 50,000/- each before Ld. ASJ, Sh. V.K. Jain and produced the certified copy of the said order as Ex. DW1/M (Colly.) and also returned the articles as per the admitted list. He borrowed an amount of Rs. 1 lac to honour the settlement but later on complainant retracted from the settlement. In order to harass him, she filed an application U/s 125 Cr.P.C. No maintenance was awarded to her but an amount of Rs. 1500/- per month was awarded to her daughter by Ld. MM and he challenged the said order. The Ld. ASJ, set aside the maintenance order granted in favour of her daughter after recognizing the settlement reached in the Mediation Cell and also the fact that it was fully complied by the accused persons. The order of Ld. ASJ was also produced as Ex. DW1/N. In this cross-examination, he denied the suggestion that photographs filed by him are false and fabricated. He denied the suggestion that his sister and her husband used to visit his house very frequently and this fact is FIR No. 511/01 State Vs. Suresh Bali 7/19 8 reflected from photographs as even they celebrated the birthday of their own daughter in his house. He voluntarily stated that in view of customary practice he and his wife were not allowed to go to the house of any relative being newly wed and therefore they celebrated the birthday of their niece in his house. He stated that the complainant started putting pressure on him for living separately at her parent's house after the occasion of lohri. He denied the suggestion that he is deposing falsely and he alongwith other accused subjected the complainant to cruelty in relation to demand for dowry. He admitted that his wife gave birth to his daughter while staying in her parent's house. He denied the suggestion that he never took his wife for medical treatment and all the medical documents produced by him Ex. DW1/A to Ex. DW1/L are false and fabricated and his wife was not suffering from any decease of Hebetates-B. He admitted that all the above said medical documents are of private clinic. His wife never told him that she was suffering from the Hebetates-B prior to his marriage. The doctors of the clinic where he took her for medical examination told him that the deceased suffered by his wife is an old decease. He also stated that he do not make any police complaint or complaint to any official authority when the complainant left his house with all her ornaments on 29.03.2000 without informing him.
9. DW-2 Vishnu Dutta, stated that he is the jija of accused Suresh Bali. He also deposed on the lines of accused Suresh Bali. He further stated that at the time of marriage of complainant with accused Suresh Bali and during the time she stayed in her matrimonial house, he was residing at JNU which was 30-35 Kms away from the matrimonial house of the complainant and in order to substantiate the same, he also produced the documents Mark-A. He also stated that he never FIR No. 511/01 State Vs. Suresh Bali 8/19 9 interfered in the life of the complainant and her husband and the complainant falsely implicated him as he is Government servant.
In his cross-examination, he has stated that he attended the marriage of the complainant with accused Suresh Bali. He was not asked to see the dowry articles given to the complainant in her marriage. He had performed all the ceremonies of marriage which are required to be performed by a jija as was jija of the bride-groom. He knew family of complainant prior to her marriage with accused Suresh Bali. He denied the suggestion that complainant always willing to stay in her matrimonial home and to carry all her marital responsibilities. He also stated that he and his wife only occasionally visited the house of accused Suresh Bali on occasions, festivals, etc. He admitted that complainant had never asked Suresh Bali to leave his old parents ant to start living with her parents as ghar jamai in his presence. He denied the suggestion that documents Mark-A are false and fabricated. He stated that he does not remember any date, time or month when he alongwith other accused persons tried for amicable settlement. He stated that once settlement was arrived at between the complainant and accused Suresh Bali and their families in the chamber of their lawyers and pursuant thereto Rs. 1 lac was also paid to the complainant. Later on, the istridhan articles as per the admitted list were deposited in PS Najafgarh. He stated that he does not remember as to what articles were deposited in his presence. He does not remember now the articles which were deposited in PS Najafgarh. Jewellery was also deposited in police station but he cannot say what jewellery articles were deposited in police station. He denied the suggestion that he is not able to give the description of jewellery article deposited in police station as no jewellery articles of complainant was deposited in the police station by accused Suresh Bali.
FIR No. 511/01 State Vs. Suresh Bali 9/19 10
10. DW-3, Jaspal is the neighbour of accused Suresh Bali. He deposed that the inlaws of complainant always treated her well but the behavior of complainant towards her husband and his family was rude. She used to never work in matrimonial home. Whenever he had conversation with accused Suresh Bali, he used to tell him that complainant is asking him to leave his old parents and reside at her parent's house as gharjamai. The accused Suresh Bali refused for the same and his parents were old and he had no money to live separately. He always tried to convince the complainant for not raising such unreasonable demands but she never relented. On 29.03.2000, while he was watering the plants and washing his car, he saw complainant alongwith her parents going on a scooter alongwith two briefcases. He asked complainant as to where she was going. She told him that she is taking all her clothes and jewellery and going to her parent's house and never come back. He tried to convince her but she flatly refused. On several occasions, the accused went to the house of the complainant to convince her to come back but she refused. He also deposed that sister in law of the complainant married 13-14 years prior to the marriage of the accused Suresh Bali and was living separately. One panchayat was also held on 29.09.2001. He also deposed regarding the amicable settlement reached in the said panchayat as deposed by Vishnu Dutta.
In his cross-examination, he admitted that in his presence the complainant never asked accused Suresh Bali to leave his old parents and for compelling him to live at her parent's house. He does not remember the date, time or year when he tried to convince the complainant for not raising such unreasonable demands. He was present in panchayat and it was held in afternoon on 29.09.2001. The settlement reached there was not reduced into writing. He cannot tell the make of two briefcases carried by complainant on 29.03.2000. On FIR No. 511/01 State Vs. Suresh Bali 10/19 11 29.03.2000, when complainant told him that she is going permanently, he also asked her father to come in his house for having talk but her father stated that he would come later. He was not present in police station when accused persons deposited istridhan articles of the complainant as per admitted list. He does not remember any date, time, month or year when accused Suresh Bali went to the house of parents of complainant to convince her. He knows the name of sister of accused Suresh. His sister used to visit her parental house on very few occasions. He denied the suggestion that he is deposing falsely at the instance of accused Suresh Bali being his neighbour on account of sharing very cordial relationship with him and he is an interested witness.
11. It is stated by Ld. APP for State that prosecution has succeeded in brining home the guilt of accused person beyond reasonable doubt. On the other hand, Ld. Counsel for accused persons vehemently argued that the accused persons are innocent. It is argued by him that the evidence of complainant is full of omissions and improvements. In view of improvements made by her, her evidence has lost the credibility and cannot be relied on to give finding of guilt against the accused persons. There are significant and major inconsistencies and contradictions in the evidence of two star witnesses of the prosecution i.e. PW-1 complainant and her father. The said inconsistence seen in the light of improvements made by the complainant, are sufficient to extend benefit of doubt to the accused persons. The prosecution has also failed to prove the guilt of accused U/s 406 IPC and even basic ingredients of Section 406 IPC are not established by the prosecution.
FIR No. 511/01 State Vs. Suresh Bali 11/19 12 Brief reasons for decision of the case:-
12. I shall discuss the detailed testimony of public witnesses examined by the prosecution in the foregoing paras.
13. I shall first decide the guilt of accused Nina Dutta(sister in law) and her husband accused Vishnu Dutta for an offence U/s 498A/34 IPC:
The evidence of complainant and her father qua these two accused persons is discussed here. The complainant admitted in her evidence that accused Nina and Vishnu got married 12-13 years before her marriage was solemnized with accused Suresh Bali. She denied the suggestion that they alongwith their two children used to reside in Staff Quarters, JNU. She admitted that Vishnu was working in JNU. She is not aware that his two children were studying in Central School, JNU. The father of the complainant also admitted in his cross examination that the marriage of accused Vishnu Dutta and Nina Dutta was solemnized prior to the marriage of his daughter but he stated that he does not know whether the same was solemnized 12 year before the marriage of his daughter. The father of the complainant admitted that accused Vishnu at the time of marriage of complainant was residing in JNU Staff Quarters and was having two children. But stated that he also used to reside at matrimonial house of his daughter. He stated he does not know exactly when the accused Vishnu Dutta and Nina Dutta used to reside in the matrimonial house of his daughter. He stated that he does not know whether the children of accused Vishnu Dutta and Nina Dutta were studying in school or not. Thus, the evidence of complainant PW-1 and her father PW-4 reflect that they have not given consistent reply regarding the residence of accused Nina Dutta and Vishnu Dutta. The complainant PW-1 denied that they were residing with their children in staff FIR No. 511/01 State Vs. Suresh Bali 12/19 13 Quarters JNU but her father PW-4, on the other hand, admitted that they were residing in JNU Staff Quarters. This contradiction also manifest that the complainant and her father have not come clean regarding the residence of the said two accused persons at the time of matrimonial discord between the complainant and her husband Suresh Bali. The defence evidence also shows that accused Nina and Vishnu were residing separately at considerable distance from matrimonial house of the complainant. The Dw3 also stated during his cross- examination that accused Neena Dutta used to come to her parent house on very few occasions. They were also having children at that time. In theses circumstances, it is very unlikely that they were present very frequently at the matrimonial house of the complainant to inflict cruelty on her.
In the complaint Ex. PW1/B, the complainant has stated that accused Nina Dutta and Vishnu Dutta used to visit her matrimonial house very frequently in the gap of around 4-5 days and perpetrated cruelty on her. Pertinent to note here that in her evidence she stated that the said accused persons used to reside with her in her matrimonial house alongwith her husband. Thus, she completely changed her version and stated that they were living in her matrimonial house in her evidence in direct contradiction to what was stated by her in her complaint. This inconsistency is very significant as the sister in law of the complainant was admittedly married 12-13 years before the marriage of the complainant.
Complainant also stated in her evidence that on the first day of her marriage, accused Nina told her that she had to run this marriage (gadi chalani hai). The complainant has not so stated in her complaint Ex. PW1/B. The complainant has made very vague and general allegations against accused Nina in her complaint Ex. PW1/B except that she stated that the accused Nina specifically demanded from her one pair of earring. But she has not given any FIR No. 511/01 State Vs. Suresh Bali 13/19 14 such evidence in her deposition in the court. The complainant also stated that on 27.03.2000, accused Vishnu Dutta and Nina Dutta beaten her but on being confronted with her complaint Ex. PW1/B she accepted that she has not stated about incident of 27.03.2000 anywhere in her complaint Ex. PW1/B. Even otherwise, the complainant has made very general, vague and unspecific allegations against accused Nina and Vishnu without any specific date, time, year, place or occasion of cruelty. So, the said general and vague allegations are not sufficient to give the fining of the guilt against these two accused persons who were married prior to the marriage of the complainant and were living separately.
So, they are acquitted for offence punishable U/s 498A/34 IPC.
14. Whether prosecution succeed in establishing guilt of accused Suresh Bali, Kanta and Kishan Lal u/s 498A/34 IPC:
Regarding the accused Suresh Bali, Kanta and Kishan Lal, the complainant has again made only general, unspecific and vague allegations against them that they used to beat her. She also stated that they used to cast aspersions on her character. Her husband Suresh Bali raised the demand of colour TV, Fridge and Scooter. She has again failed to give any time, date, month, year, place or occasion for raising such dowry demands or accusations by said accused persons. The father of the complainant also failed to give any time, date, month or year when the complainant/her daughter told him about the harassment meted out to her for not brining sufficient dowry. Thus, the allegations for demand of dowry by the accused persons and consequent harassment of complainant are general, vague and indistinct.
The complainant also stated that the said accused persons alongwith other co-accused beaten her on 28.03.2000 in relation to demand for dowry. The FIR No. 511/01 State Vs. Suresh Bali 14/19 15 said assertion was found missing in her complaint made to CAW Cell Ex. PW1/B with which she was duly confronted and she failed to give any reason for the omission. The complainant also stated in her evidence that accused Kanta used to tell her that she fulfill the demand of her daughter as she has only one daughter, but no such statement has been made by her in her complaint Ex. PW1/B for which she was duly confronted. The father of the complainant stated in his evidence that the complainant tried to commit suicide on account of cruelty heaped on her by the accused persons but no such evidence was given by complainant in her testimony. The IO also admitted that the accused Kanta and Kishan Lal are aged and even at the time of incident, were of old age. Thus, the accused inlaws were having old age at the time of incident.
Moreover, the complainant has also filed the application before CAW Cell after one year of leaving her matrimonial house. In her evidence, she explained the said delay by saying that she was threatened not to disclose the harassment and maltreatment done to her. However, even the said explanation was also missing in her complaint Ex. PW1/B and is by way of an improvement. The father of the complainant PW-4 stated that he did not file complaint to any police or other authority when the complainant disclosed to her regarding her harassment by accused persons for dowry demands, without giving any reason for not filing any such complaint.
Thus, the complainant has made material improvements in her testimony and late filing of complaint in CAW Cell has also not been explained cogently by the complainant.
The evidence lead by defence further shows that the complainant reached an amicable settlement after registration of this case and also under the said settlement, received istridhan articles and jewellery and an amount of Rs. 1 FIR No. 511/01 State Vs. Suresh Bali 15/19 16 lac. The said settlement was also relied on by Ld. ASJ vide order dated 01.06.2004 Ex. DW1/N and while affirming the sanctity of said settlement, the Ld. ASJ also held that the said amount was paid towards the maintenance of daughters of the parties and the daughters of the parties is not entitled to any separate order for maintenance. The complainant resiled for the said settlement without any plausible cause.
In view of the aforesaid reasons, the prosecution failed to establish the guilt of accused Suresh Bali, Kanta and Kishan Lal beyond reasonable doubt and they are acquitted for offence punishable U/s 498A/34 IPC.
15. Whether guilt of accused Suresh Bali U/s 406 IPC is proved:
In the complaint, complainant has stated that she was left in her paternal house by accused Vishnu in three wearing clothes and all her istridhan is in her matrimonial house. She reiterated the same in her evidence. She stated that during investigation of case she has received part of her istridhan articles Ex. PW1/D, her remaining istridhan articles are in possession of accused Suresh Bali. She demanded her istridhan articles back from accused Suresh Bali but accused Suresh Bali replied that he has already paid her after selling the said articles and now he cannot give anything. She also demanded dowry articles in Women Cell through an application. PW-4, father of complainant, deposed on the same lines as her daughter. He stated that all the dowry articles and istridhan articles were not returned and only few of the dowry articles were returned in police station. On the other hand, the accused persons have stated that the settlement was reached between the parties and accused persons paid an amount of Rs. 1 lac to the complainant towards full and final settlement of all her claims besides returning her dowry articles as per the admitted list. He has also filed the certified copy of order FIR No. 511/01 State Vs. Suresh Bali 16/19 17 passed by Ld. ASJ on 01.06.2004 Ex. DW1/M, recognizing the said settlement and on the strength of said settlement, refusing maintenance U/s 125 Cr. P.C to the complainant and her child.
Coming to Section 406 IPC,Section 406 IPC deals with criminal breach of trust. Section 406 IPC reads as under:-
"whoever commits criminal breach of trust shall be punished with imprisonment of either description for a terms which may extend to three years, or with fine, or with both"
Section 405 IPC defines criminal breach of trust. The relevant portion of the definition reads as under:-
"405 Criminal breach of trust - Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescriting the mode in which such trust is to be charged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits "criminal breach of trust".
As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, his dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation FIR No. 511/01 State Vs. Suresh Bali 17/19 18 tantamount to conversion of articles by the accused to their own use and consumption. The bare perusal of complaint Ex. PW1/B and evidence of complainant PW-1, there is no specific statement qua entrustment of any articles in favour of any accused. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that all her dowry articles have not been returned. From the aforesaid piece of evidence even the basic requirement of entrustment having been made in favour of any of the accused is not established.
The prosecution has not produced any photograph or receipt/bill to prove the exchange/possession of stridhan and jewellery articles at the time of marriage. The complainant simply stated in her evidence that neither her nor her father had produced any bills/receipts to prove exchange of jewellery articles, to the police without giving any explanation why such receipts/bills were not handed over to prove exchange of jewellery and other istridhan articles by the complainant to accused Suresh Bali. There is mandate of provision of 2 of Dowry Prohibition Act and in view of judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152 for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side. The complainant in her evidence during her cross-examination again failed to give any explanation for not producing the list of dowry articles prepared at the time of marriage even though she claimed that such list was prepared but not signed by any party.
The accused has also stated that after returning istridhan and jewellery articles to complainant in a CAW Cell as per the admitted list, he also paid Rs. 1 lac to the complainant towards full and final settlement as per the settlement reached from which she later resiled. The accused Suresh Bali has FIR No. 511/01 State Vs. Suresh Bali 18/19 19 also filed in his evidence U/s 315 CR.P.C the certified copy of order of Ld. Sessions Judge recording the payment of Rs. 1 lac to the complainant and return of admitted istridhan articles to the complainant in CAW Cell as Ex. DW1/M (colly.) and order dated 01.06.2004 of Ld. Sessions Judge, Ex. DW1/N recognizing the settlement reached between the parties at the time of hearing appeal U/s 125 Cr.P.C. The prosecution has failed to give any explanation for the same and the said settlement is binding on the parties as the order dated 01.06.2004 has attained finality being not challenged by the complainant. Moreover, it is important to note that the IO admitted that the accused on their own brought the stridhan articles in CAW cell for returning the same to the complainant without any notice for IO. This also shows that the intention of accused was not to retain the stridhan articles of the accused. Apart from that, it is also pertinent to note that the father of complainant in his statement made to police has not stated that the entire istridhan articles of her daughters have not been returned and he failed to give any reason for the omission in his statement. In view of the aforesaid reasons, the guilt of accused Suresh Bali U/s 406 IPC is not proved beyond reasonable doubt by the prosecution and he is acquitted for offence punishable U/s 406 IPC.
ANNOUNCED IN THE OPEN COURT (PRIYA MAHINDRA)
ON 23rd JULY 2013 METROPOLITAN MAGISTRATE
MAHILA COURT-2/DWARKA
NEW DELHI
FIR No. 511/01 State Vs. Suresh Bali 19/19