Chattisgarh High Court
Nand Kishore Pandey vs State Of Chhattisgarh on 7 June, 2021
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on:16.3.2021
Order delivered on:07.06.2021
Cr.M.P.No.1075 of 2019
1. Nand Kishore Pandey S/o Shri P.N. Pandey aged about 59
years, OccupationGovt.Servant
2. Sumit Pandey S/o Nand Kishore Pandey, aged about 30
years, Occupation - Businessman
3. Nitin Pandey S/o Nand Kishore Pandey, aged about 30
years, Occupation - Govt.Servant
4. Seema Pandey W/o Nand Kishore Pandey, aged about 54
years, Occupation - Homemaker
All above Resident of - H.No.826, Shobhapur Colony,
Near VFJ Factory, Jabalpur (M.P.)
Petitioners
Versus
1. State of Chhattisgarh through Police Station Mahila
Thana, Distt.Raipur (Chhattisgarh)
Respondent
2. Smt.Mansi Choubey W/o Rahul Pandey aged 29 years, R/o Kashi Apartment, Opposite Gitanjali Nagar, Raipur (Chhattisgarh) Complainant For Petitioners : Mr.Sankalp Kochar and Mr.Harsh Wardhan, Advocates For Respondent No.1: Mr.Sunil Otwani, Additional Advocate General with Mr.Ravi Bhagat, Deputy Government Advocate For Respondent NO.2: Mr.Kishore Bhaduri, Mr.Ashok Kumar Shukla and Mr.Pankaj Singh, Advocates Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order
1. This case was reserved for orders on 16.3.2021, but before order could be delivered, lockdown was clamped down by the District Collector w.e.f. 14.4.2021, 2 consequently, this Court was also remain closed and during the continuance of lockdown followed by closure of this Court, the summer vacation stepped in w.e.f. 5.6.2021, therefore, order is being pronounced today on reopening of this Court after summer vacation.
2. The petitioners herein, who are inlaws of respondent No.2, call in question legality, validity and correctness of the FIR and chargesheet submitted against them by the jurisdictional police/respondent No.1 for commission of offence under Sections 498A read with Section 34, 406, 420 and 506 of the Indian Penal Code (hereinafter called as 'IPC') and Section 4 of the Dowry Prohibition Act, 1961 (hereinafter called as 'the Act of 1961') in this petition filed under Section 482 of the CrPC.
3. Case of the prosecution, in brief, is that marriage of respondent No.2 was solemnized with son of petitioners No.1 and 4 Mr.Rahul Pandey on 8.2.2015 and thereafter out of their wedlock they were blessed with a girl child namely Kuhu @ Anvi Pandey on 21.10.2016 and it is the case of the prosecution that thereafter the petitioners as well as husband of respondent No.2 herein namely Mr.Rahul Pandey (he is not petitioner herein) started treating her with cruelty [which compelled respondent No.2 herein to live separately 3 from Rahul Pandey w.e.f. 27.7.2018] by demanding ₹ 1 crore or house at Jabalpur and thereafter on 7.4.2018, written complaint was submitted by respondent No.2 to Mahila Thana, Raipur, which was ultimately said to have been registered on 12.10.2018 and in between conciliation proceeding was undertaken for resolution of dispute between the parties and thereafter wheels of investigation started running and Crime No.41/2018 for the abovestated offences was registered against the petitioners and husband of respondent No.2 Mr.Rahul Pandey as statedabove and accordingly, they have been chargesheeted for the aforesaid offences. In the meanwhile, the present petitioners except husband Rahul Pandey have filed this petition seeking quashment of offences registered against them.
4. In this petition filed under Section 482 of the CrPC, it is mainly pleaded that the petitioners are father inlaw, brothersinlaw and motherinlaw of respondent No.2 herein who have no direct connection with offence in question qua written complaint filed by respondent No.2 and her statement under Section 161 of the CrPC as main allegation has been made against husband Rahul Pandey and entire contents of the chargesheet would show that taking the contents of the FIR and consequent proceeding and chargesheet, no 4 offences under Section 498A read with Section 34 of the IPC and Section 4 of the Dowry Prohibition Act are made out against them as there is only specific allegation against husband Rahul Pandey, there is omnibus and general allegations against the petitioners and ingredients of offence under Section 498A/34 of the IPC are absolutely missing. It has been further stated that it is the case of false allegation against the petitioners as husband of respondent No.2 filed an application under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called as 'the Act of 1955') for restitution of conjugal rights on 25.4.2018, in which respondent No.2 appeared on 26.6.2018 and thereafter written complaint was pressed into service on 12.10.2018 as FIR has been registered as a counterblast by the complainant to come out from the proceeding under Section 9 of the Act of 1955, as such, it is a case of counterblast at the instance of respondent No.2. It has also been stated that husband of respondent No.2 Mr.Rahul Pandey and petitioners No.1 and 3 were never posted at one place together and they never lived together as fatherinlaw (petitioner No.1) and brotherinlaw (petitioner No.3) are also working in Police Department and they are posted in different places and their posting orders have been 5 filed to demonstrate that allegations are false and those documents are already on record and are of sterling quality and therefore, those documents deserve to be relied upon to hold that allegations are false and baseless. It has also been pleaded that ingredients of offence under Section 406 of the IPC are missing. Merely because the police has issued notice under Section 91 of the CrPC which is said to be refused by the petitioners, no offence under Section 406 of the IPC is made out as there is no entrustment and demand for return of Stridhan and it was not shown to be converted for his own use. It has also been pleaded that mere alleged refusal that too at the instance of the petitioners, no offence under Section 406 of the IPC is made out. Similarly, it has also been pleaded that no offence under Section 420 of the IPC are made out and ingredients of offence under Section 4 of the Act of 1961 are also missing as Mahindra XUV 500 car said to have been gifted by father of respondent No.2 was sold by the petitioners and Rahul Pandey and they have utilized the money for their own purpose, as such, prayer has been made to quash the entire proceedings registered for the aforesaid offences to secure the ends of justice.
5. Return has been filed by the private respondent as 6 well as by official respondent stating interalia that scope of interference under Section 482 of the CrPC is extremely limited and correctness and veracity of the prosecution case cannot be examined in proceeding filed under Section 482 CrPC particularly when primafacie offences under Sections 498A/34, 406, 506, 420 of the IPC and Section 4 of the Act of 1961 are made out against the petitioners. It has also been stated that facts pleaded and grounds raised herein, are all subjectmatter of trial and charges have to be proved by the prosecution during the course of trial and at this stage, it cannot be held that no prima facie offence is made out for trial, as such, the petition under Section 482 of the CrPC deserves to be dismissed.
6. Mr.Sankalp Kochar, learned counsel appearing for the petitioners, would submit as under:
(i) That, the petitioners are inlaws of respondent No.2 herein except husband and in written complaint filed by respondent No.2, there is no direct allegation or connection of the present petitioners in the aforesaid offences except general and omnibus allegations having no legs to stand.
(ii) That, taking contents of chargesheet and 7 document appended along with chargesheet as it is, aforesaid offences are not made out against the petitioners as direct allegation is against husband for demand of dowry of ₹ 1 crore / house of ₹ 1 crore at Jabalpur made by the complainant, as such, in absence of specific allegation and in absence of ingredient of demand of dowry and cruelty, prosecution against the petitioners deserves to be quashed. To bolster his submission, he would rely upon the judgments of the Supreme Court in the matters of Geeta Mehrotra and another v. State of Uttar Pradesh and another1, Preeti Gupta and another v. State of Jharkhand and another2, Swapnil v. State of Madhya Pradesh3 and Rashmi Chopra v. State of Uttar Pradesh and Another4 (Para24).
(iii) That, it is a case of false implication / counterblast pursuant to the proceeding initiated by son of petitioner No.1 under Section 9 of the Act of 1955 registered on 25.4.2018 before the Family Court, Jabalpur in which respondent No.2 appeared on 26.6.2018 and thereafter written complaint was made on 1 (2012) 10 SCC 741 2 (2010) 7 SCC 667 3 (2014) 13 SCC 567 4 2019 SCC OnLine SC 620 8 12.10.2018, as such, it is nothing but sheer abuse of process of the Court. He would rely upon the judgments of the Madhya Pradesh High Court in the matters of Rakesh Singh and another v. State of M.P. and others5, Harinarayan S/o Late Shri Balwant Parmar & Ors. v. Smt.Shewta Parmar 6, Prem Narayan and others v. Sushila Devi7 and Ritesh Chopda and others v. State of M.P. and Another8.
(iv) That, prima facie no offence under Section 406 of the IPC is made out as there is no entrustment of property to the present petitioners and even there is no demand for alleged stridhan by respondent No.2 herein and there is no allegation that alleged stridhan of respondent No.2 has been used by the petitioners for their own use and alleged notice issued by respondent No.1 under Section 91 of the CrPC and alleged refusal to appear in the said proceeding would not constitute offence under Section 406 of the IPC. The complainant/respondent No.2 has never demanded alleged stridhan from the petitioners and therefore, in the light of judgments of the Supreme Court in the matter of 5 2013 SCC OnLine MP 3187 6 2013 SCC OnLine MP 5912 7 2016 SCC OnLine MP 8791 8 2019 SCC OnLine MP 619 9 Sardar Singh v. State of Haryana9 and S.W.Palanitkar and others v. State of Bihar and another10, no offence under Section 406 of the IPC is made out.
(v) That, even otherwise there is no intention of cheating from its inception, as such, no offences under Section 420 of the IPC and Section 4 of the Act of 1961 are made out. He would further submit that at the relevant point of time, petitioner No.1 (fatherinlaw) and petitioner No.3 (brotherinlaw) were never posted with his son Rahul Pandey, therefore, allegation under Section 498A/34 of the IPC is an afterthought to implicate the petitioners. Transfer and posting orders of the petitioners as filed are governmental records and authenticity of those documents have not been disputed and therefore, they can be relied upon to hold that charges are baseless and deserve to be quashed. Finally, he would rely upon the judgments of the Supreme Court in the matters of Rajiv Thapar and others v. Madan Lal Kapoor11 and Prashant Bharti v. State (NCT of Delhi)12, as such, the petition under 9 (1977) 1 SCC 463 10 (2002) 1 SCC 241 11 (2013) 3 SCC 330 12 (2013) 9 SCC 293 10 Section 482 of the CrPC deserves to be allowed and prosecution against the petitioners deserves to be quashed.
7. On the other hand, Mr.Sunil Otwani, learned Additional Advocate General for respondent No.1/State, would submit that after due investigation the petitioners have been chargesheeted for the aforesaid offences and primafacie material collected are sufficient to put the petitioners at trial and they are standing trial also, but taking into consideration the material available on record, it cannot be held that no prima facie case against the petitioners for standing trial is made out. He would further submit that jurisdiction of this Court under Section 482 of the CrPC is extremely limited as FIR and chargesheet cannot be quashed particularly when there is sufficient evidence available on record to put the accused persons to trial. He would rely upon the judgment of the Supreme Court in the matter of Taramani Parakh v. State of Madhya Pradesh and others13 to buttress his submission that allegation of cruelty is question of fact to be established during trial, as such, the FIR and charge sheet deserve to be quashed.
8. Mr.Kishore Bhaduri, learned counsel for respondent 13 (2015) 11 SCC 260 11 No.2/complainant, would submit that after due investigation, the jurisdictional police has submitted chargesheet against the petitioners and one co accused Rahul Pandey in which there are serious allegations against the petitioners not only for treating respondent No.2 with cruelty, but they also demanded dowry to the extent of ₹ 1 crore or house of ₹ 1 crore at Jabalpur and Mahindra XUV 500 gifted to her by her father was sold by Rahul Pandey in collusion with the petitioners and they have misappropriated the amount instead of giving the sale proceeds to respondent No.2, which clearly attracts the offence under Sections 406 and 420 of the IPC. He would further submit that despite notice under Section 91 of the CrPC issued by respondent No.2 for return of stridhan, the petitioners refused to accept notice issued by respondent No.2 and even dared not to return stridhan belonging to respondent No.2, as such, it is clear case where offence under Sections 420 and 406 of the IPC are made out. He would rely upon the judgments of the Supreme Court in the matters of Pratibha Rani v. Suraj Kumar14, Mohd. Allauddin Khan v. State of Bihar15, M/s IOCL v. M/s NEPC India Ltd16, J.P. Sharma 14 (1985) 2 SCC 370 15 (2019) 6 SCC 107 16 AIR 2006 SC 2780 12 v. Vinod Kumar Jain17, Renu Kumari v. Sanjay Kumar18 and State of Orissa v. Saroj Kumar Sahoo19 to buttress his submission. He would further submit that all submissions raised on behalf of the petitioners relate to question of fact, that can be considered during the course of trial and that cannot be considered at this stage and that too in proceeding under Section 482 CrPC as all ingredients of the aforesaid offences are available to put the petitioners to trial, as such, it is the case where the petition deserves to be dismissed relegating them to join trial as for this or that reason they have not joined trial and at this stage, despite the fact that chargesheet has been filed, the trial is not progressed for last two years, as such, it is not a fit case where jurisdiction under Section 482 of the CrPC can be exercised, as such, the petition under Section 482 of the CrPC deserves to be dismissed.
9. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
10. At the outset, it would be appropriate to consider the scope of interference in chargesheet 17 (1986) 3 SCC 67 18 (2008) 12 SCC 346 19 (2005) 13 SCC 540 13 filed by the police against accused in extraordinary jurisdiction under Section 482 of the CrPC.
11. In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others20, the Supreme Court has held that the accused can approach the High Court either under Section 482 of the CrPC or under Article 227 of the Constitution of India to have the proceeding quashed against him when the complaint does not make out any case against him.
12. The Supreme Court in the mater of State of Haryana and others v. Bhajan Lal and others21 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of 20(1998) 5 SCC 749 21 1992 Supp (1) SCC 335 14 decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the 15 Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
13. The principle of law laid down in Bhajan Lal's case (supra) has been followed recently by the Supreme 16 Court in the matters of Google India Private Limited v. Visaka Industries22, Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another 23 and Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others24. The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal's case (supra) that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and "that too in the rarest of rare cases" as indicated in paragraph 103 therein of the report.
14. Having noticed the scope of interference by this Court in the petition relating to quashment of FIR/chargesheet, reverting to the facts of the present case, it is quite vivid that in the impugned chargesheet, four petitioners have been charged for offences under Sections 498A read with Section 34, 406, 420 and 506 of the IPC and Section 4 of the Act of 1961.
15. Chapter XXA of the IPC deals with offence of cruelty by husband or relatives of husband. Section 498A of the IPC defines the offence of cruelty as under: "498A. Husband or relative of husband of a 22(2020) 4 SCC 162 23(2020) 13 SCC 435 24(2019) 18 SCC 191 17 woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
16. A careful perusal of the aforesaid provision would show that in order to establish offence under Section 498A of the IPC, the prosecution must establish,
(i) That, woman must be married;
(ii) She has been subjected to cruelty or harassment and
(iii) Such cruelty or harassment must have been shown either by husband of the woman or by relative of her husband.
The word 'relative' has not been defined in the IPC or in this Chapter, but in order to be covered under Section 498A of the IPC, one has to be relative of the husband by blood, marriage or adoption. The word 18 'relative' in Section 498A of the IPC would be limited only to blood relation and relations by marriage (See U. Suvetha v. State by Inspector of Police and another25 and also in Vijeta Gajra v. State of NCT of Delhi26).
17. The word 'cruelty' within the meaning of Section 498A of the IPC has been explained in Explanation appended to Section 498A of the IPC. It consists of two clauses namely clause (a) and clause (b). To attract Section 498A of the IPC, it must be established that cruelty or harassment to the wife to coerce her or cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract Section 498A of the IPC. Explanation (b) to Section 498A of the IPC contemplates harassment of woman to coerce or any relation of her to meet any unlawful demand for any property or valuable security. The complainant if wants to come within the ambit of Explanation (b) to Section 498A of the IPC, she can succeed if it is proved that there was an unlawful demand by the husband or any of his relatives with respect to money or of some valuable security.
25 (2009) 6 SCC 757 26 (2010) 11 SCC 618 19
18. The Supreme Court in the matter of Priya Vrat Singh and others v. Shyam Ji Sahai27 considered the issue of delay in lodging the complaint as well as role that has been ascribed to the accused therein and quashed the complaint holding the delay of two years in lodging FIR to be fatal and further held that no role has been ascribed to the petitioner/accused therein. It was observed as under: "8. Further it is pointed out that the allegation of alleged demand for dowry was made for the first time in December, 1994. In the complaint filed, the allegation is that the dowry torture was made some times in 1992. It has not been explained as to why for more than two years no action was taken.
9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother in law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6.12.1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent No.1."
19. Similarly, in the matter of Sunder Babu and others v. State of Tamil Nadu28 delay in filing complaint against accused therein was taken note of by their Lordships of the Supreme Court holding the case to be covered by Category Seven of para102 highlighted in Bhajan Lal's case (supra), the 27 (2008) 8 SCC 232 28 (2009) 14 SCC 244 20 prosecution for offence under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act was quashed.
20. Similarly, in the matter of Geeta Mehrotra (supra), the Supreme Court held that casual reference to the family member of the husband in FIR as co accused particularly when there is no specific allegation and complaint did not disclose their active involvement. It was held that cognizance of matter against them for offence under Sections 498A, 323, 504, 506 and 304B of the IPC would not be justified as cognizance would result in abuse of judicial process.
21. In the matter of K. Subba Rao and others v. State of Telangana represented by its Secretary, Department of Home and others29 their Lordships of the Supreme Court delineated the duty of the criminal Courts while proceeding against relatives of victim's husband and held that the Court should be careful in proceeding against distant relatives in crime pertaining to matrimonial disputes and dowry deaths and further held that relatives of husband should not be roped in on the basis of omnibus allegations, unless specific instances of their involvement in offences are made 29 (2018) 14 SCC 452 21 out.
22. Recently, in the matter of Rashmi Chopra (supra) it has been held by their Lordships of the Supreme Court relying upon the principle of law laid down in Bhajan Lal's case (supra) that criminal proceedings can be allowed to proceed only when a prima facie offence is disclosed and further held that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment and the High Court should not hesitate in exercising the jurisdiction to quash the proceedings if the proceedings deserve to be quashed in line of parameters laid down by the Supreme Court in Bhajan Lal's case (supra) and further held that in absence of specific allegation regarding anyone of the accused except common and general allegations against everyone, no offence under Section 498A IPC is made out and quashed the charges for offence under Section 498A of the IPC being covered by category seven as enumerated in Bhajan Lal's case (supra) by holding as under: "24. Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been 22 mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by Nayan Chopra.
25. There being no specific allegation regarding any one of the applicants except common general allegation against everyone i.e. "they started harassing the daughter of the applicant demanding additional dowry of one crore" and the fact that all relatives of the husband, namely, father, mother, brother, mother's sister and husband of mother's sister have been roped in clearly indicate that application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants....."
23. Having noticed the legal position qua quashing the FIR and chargesheet, the question would be whether taking the contents of the FIR and charge sheet as it is, offence under Section 498A/34 of the IPC is made out against the petitioners who are relatives of husband of respondent No.2/complainant being fatherinlaw, brothersinlaw (two) and mother inlaw ?
24. It is the case of the prosecution that marriage of respondent No.2 was solemnized with Rahul Pandey, son of petitioners No.1 and 4 at Jabalpur on 8.2.2015 23 in accordance with Hindu rites and rituals and out of their wedlock they were blessed with a baby girl Anvi Pandey on 11.10.2016 and thereafter on account of strained relationship between them, respondent No.2 left matrimonial home and started living separately at Raipur with her father by leaving the matrimonial house w.e.f. 27.7.2018. It is also the case of the prosecution that Rahul Pandey (husband of respondent No.2) purportedly visited Raipur on 23.12.2017 and demanded dowry of ₹1 crore or house of ₹1 crore at Jabalpur from father of respondent No.2. A written complaint was purported to be made by respondent No.2 to Mahila Thana, Raipur (though written complaint dated 7.4.2018 / 28.4.2018 has been filed along with chargesheet, but there is no receipt of Police Station having been received on 7.4.2018). However, the FIR has been registered on 12.10.2018. It is stated at the Bar that from 28.4.2018 to 16.7.2018 conciliation proceedings were undertaken for resolution of dispute between Rahul Pandey and respondent No.2 and FIR was ultimately registered on 12.10.2018 being Crime No.41/2018 for offence under Section 498A read with Section 34 of the IPC and also for offence under Sections 406 and 420 of the IPC. It is further case of the prosecution that immediately 24 after marriage of respondent No.2 with Rahul Pandey, the complainant's husband Rahul Pandey and the petitioners being inlaws / relatives of her husband started illtreating the complainant stating that at the time of marriage she has not brought sufficient dowry with her. It is also the case of the prosecution that father of respondent No.2 had gifted a Mahindra XUV 500 car, a diamond ring, jewellery worth ₹5 lakhs, clothes and other valuables including furniture and also incurred ₹11 Lakhs in renting out the hall for marriage purpose which was to be split between the petitioners and family of respondent No.2 equally and the petitioners obtained ₹22 Lakhs from the complainant's father along with other gifts worth ₹3 Lakhs which was given to the bride/complainant. It is also alleged that husband Mr.Rahul Pandey later on sold the gifts and valuables received at the time of marriage and misappropriated the entire amount. It is also the case of the prosecution that on 23.12.2017, Rahul Pandey, husband of the complainant /respondent No.2 visited the complainant's house and reiterated his demand of cash of ₹1 crore or house of ₹1 crore at Jabalpur and on being refused by the complainant's father, Mr.Rahul Pandey threatened that he shall leave the complainant and will marry another woman and they 25 sold off the car, dining set, mattress, etc., received at the time of marriage and have pocketed the entire money, as such, the aforesaid offences are made out.
25. Written complaint is said to have been filed by respondent No.2 / complainant on 7.4.2018 / 28.4.2018 before the Station House Officer, Mahila Thana, Raipur, which is part of the chargesheet. The date of the complainant's written complaint made to the Station House Officer, Mahila Thana, Raipur is 7.4.2018 / 28.4.2018 and FIR has been registered on 12.10.2018 and admittedly, respondent No.2 is residing separately from her husband Rahul Pandey w.e.f. 27.7.2017 whereas complaint is made on 7.4.2018 / 28.4.2018. In the complaint so made, the complainant has only made omnibus and general allegations against the petitioners without being full particulars about date and place that all the petitioners along with her husband treated her with cruelty for not bringing sufficient dowry at the time of marriage. There is no specific allegation regarding anyone of the petitioners except common and general allegations against all the petitioners that immediately after her marriage, dining set and mattress were sold by her husband and he pocketed the money and gift received at the time of marriage was kept by all the petitioners 26 and she was not given share (amount). For purchase of house at Jabalpur, ₹1 crore was demanded by petitioners No.1 and 4 and her father was also called from Raipur and she was sent back to Raipur along with her father on 27.7.2017. On 23.12.2017 Rahul Pandey, her husband visited her house and demanded ₹1 crore or house of one crore at Jabalpur and threatened her with dire consequences if ₹ one crore or house of ₹ one crore is not given to him and as such, action be taken against her husband and the petitioners for the aforesaid offences.
26. A careful perusal of the aforesaid complaint would show that so far as the allegation of selling and pocketing the money of dining set and mattress is concerned, that is on Rahul Pandey, husband of the complainant/respondent No.2 herein. Demand of ₹1 crore on 21.10.2016 is also on Rahul Pandey, husband of respondent No.2. Similarly, allegation of physical assault and attempt to strangulate her in the month of November, 2016 is also on Rahul Pandey, husband of respondent No.2. Similarly, the allegation of demand of ₹1 crore for purchase of house or one crore in cash on 23.12.2017 at Raipur is also on Rahul Pandey, husband of respondent No.2. The only allegation against these petitioners is that immediately after 27 marriage they taunted respondent No.2 that she has not brought sufficient dowry in her marriage and secondly there is also general/omnibus allegation that all gifts given at the time of marriage were kept by the petitioners and no share was given to her and she was not given food in the month of November, 2016 when she visited to her matrimonial house at Jabalpur along with her newly born daughter and further that petitioners No.1 and 4 demanded ₹1 crore for purchase of house at Jabalpur, as such, main allegation of selling the articles given at the time of marriage like dining set, mattress and further allegation of demanding ₹1 crore for the sake of purchasing house at Jabalpur on 21.10.2016 & 23.12.2017 and also the allegation of threatening her with cruelty and assaulting and allegation of strangulation is also on Rahul Pandey (her husband) and omnibus and general allegations without any particulars of involvement have been made against the petitioners. Even in the statement made under Section 161 CrPC, there is no specific allegation against the petitioners except general and vague allegations stating that the petitioners have treated her with cruelty and demanded dowry.
27. Thus, upon the basis of abovestated analysis, 28 following broad facts are apparent on the face of record,
(i) That the complainant and her husband Rahul Pandey admittedly and undisputedly started living separately w.e.f. 27.7.2017, whereas written complaint was made by respondent No.2/complainant to the concerned police station as late as on 7.4.2018 / 28.4.2018 and FIR came to be registered on 12.10.2018. There is no explanation forthcoming on record for delay of 8 months in lodging the FIR.
(ii) The allegation of demand of dowry of ₹ 1 crore / house of ₹ 1 crore at Jabalpur on 21.10.2016 is mainly on complainant's husband Rahul Pandey. Similarly allegation of demand of ₹ 1 crore or house at Jabalpur on 23.12.2017 at Raipur is also on Rahul Pandey. Likewise dinning table, mattress etc. were disposed off by Rahul Pandey and he pocketed the money as per written complaint.
(iii) The allegation of abusing, assaulting, intimidating and trying to strangulate the complainant/respondent No.2 in the month of November 2016 is on Rahul Pandey (complainant's husband).
(iv) Mahindra XUV car gifted to the complainant was sold by Rahul Pandey (complainant's husband) and pocketed the money with the help of the present petitioners.
(v) Only general and unspecific allegations have been made against the present petitioners without particulars of the said demand alleging that the 29 complainant has not brought sufficient dowry and presents/gifts received during / at the time of marriage were kept by the petitioners without sharing with the complainant / respondent No.2 herein and she was taunted by the petitioners all the time.
28. At this stage, it would be appropriate to notice that the petitioners have also been charged for offence under Section 4 of the Act of 1961. Section 4 of the Act of 1961 states as under: "4. Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."
29. The term 'dowry' has been defined under Section 2 of the Act of 1961 which states as under: "2. Definition of 'dowry'. --In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said 30 parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."
30. The aforesaid provision of Section 2 of the Act of 1961 clearly defines the word 'dowry' by holding that any property or valuable security given or agreed to be given either directly or indirectly at or before or any time after the marriage or in connection with the marriage of the said parties.
31. The Supreme Court in the matter of Appasaheb and another v. State of Maharashtra30 while considering the definition of 'dowry' under Section 2 of the Dowry Prohibition Act clearly held that correlation between the giving or taking of property or valuable security with the marriage of the parties is essential and further held that demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as demand for dowry. It was observed by their Lordships as under: "11. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the 30 (2007) 9 SCC 721 31 giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly wellknown social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd.31 and Chemical and Fibres of India v. Union of India32). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz., demand for dowry is not established, the conviction of the appellants cannot be sustained."
32. Reverting to the facts of the present case in the light of aforesaid definition of 'dowry' as considered by the Supreme Court in the matter of Appasaheb (supra), it is quite vivid that it is the case of the prosecution relying upon the complaint made by respondent No.2 that ₹1 crore was said to have been demanded by husband of respondent No.2 from father of 31 (1996) 10 SCC 413 32 (1997) 2 SCC 664 32 respondent No.2 for purchasing house at Jabalpur twice. It has not been pleaded/stated in the complaint that it was agreed to be given either directly or indirectly between the petitioners' family and family of the complainant/respondent No.2 before or at the time of marriage of Rahul Pandey and respondent No.2 herein, therefore, taking the contents of the FIR as it is, primafacie demand of dowry by the petitioners as defined in Section 2 of the Act of 1961 is not established as ₹1 crore is said to have demanded by Mr.Rahul Pandey from father of respondent No.2 herein that too for purchase of house at Jabalpur, as such, no offence under Section 4 of the Act of 1961 is made out particularly against the petitioners herein.
33. On the basis of aforesaid discussion, I am of the considered opinion that primafacie no offences under Section 498A and Section 4 of the Act of 1961 are made out for prosecuting the petitioners for the above stated offences and the prosecution against them for the aforesaid offences is covered by Category 1, 3 & 7 of para102 of the judgment rendered by the Supreme Court in Bhajan Lal's case (supra) and as such, liable to be quashed.
34. The petitioners have also been charged for commission of offence under Sections 406 and 420 of 33 the IPC. It is the case of the prosecution that family relatives and guests in the marriage presented in cash ₹22 lakhs and also father of respondent No.2 gave ₹3 lakhs as Stridhan to respondent No.2 which has been obtained by the petitioners and no share was given to her and similarly, car (Mahindra XUV) presented by father of respondent No.2 to respondent No.2 was also sold by coaccused Rahul Pandey to one Ashish Kumar Sahu and the petitioners and Rahul Pandey, husband of respondent No.2, have pocketed the money and thereby committed the offence under Sections 406 and 420 of the IPC. It is further case of the prosecution that on 02.11.2018 the Station House Officer, Mahila Thana, Raipur during the course of investigation served notice under Section 91 CrPC to respondent No.2 to submit a list of articles which she had taken to his matrimonial home which states as under: "uksfVl /kkjk 91 C.R.P.C. izfr] Jherh ekulh pkScs ifr jkgqy ik.Ms; mez 29 o"kZ lkfdu edku uEcj 115&A lsDVj&3 dk'kh vikVZesUV ds lkeus xhrkatyh uxj jk;iqj Fkkuk flfoy ykbZu jk;iqj eksckbZy uEcj 82250&72032 fo"k;%& L=h/ku migkj dk lkekuks dh vly jlhn izLrqr djus ckcr~A vkidks bl uksfVl ds tfj;sa lwfpr fd;k tkrk gS fd vkids }kjk efgyk Fkkuk jk;iqj esa vi-dz-41@18 /kkjk 498¼,½] 506] 34 rk-fg iathc) djkbZ 34 gSA fookg ds le; tks Hkh L=h/ku migkj Lo:i vki vius llqjky ysdj x;s mu lkekuksa dh lwph ,oa vly jlhn izLrqr djsaA rkfd izdj.k esa vfxze dk;Zokgh dh tk ldsaA lgh@&2-11-18 Mansi Fkkuk izHkkjh 2.11.18 efgyk iqfyl Fkkuk jk;iqj ¼N0x0½
35.In response to above, respondent No.2/complainant submitted her reply and also submitted a list of articles by memo dated 4.11.2018. Reply filed by respondent No.2 states as under: izfr] Jheku Fkkuk izHkkjh efgyk iqfyl Fkkuk] jk;iqj N-x-
fo"k;%& vkids }kjk fn;s x;s uksfVl varxZr /kkjk 91 Cr.P.C.
fnukad 02@11@2018 dk tokc e; [kpZ ,oa lwph vuqlkj jlhn lfgrA egksn;k] fuosnu gS fd vkids }kjk fn, x, uksfVl varxZr /kkjk 91 Cr.P.C. fnukad 02@11@2018 ds laca/k esa esjs fookg ds volj ij fn, x, migkj] uxn /kujkf'k ,oa lkekuksa dh lwph izLrqr dj jgh gwW RkFkk bl volj ij gq, [kpZ dk fooj.k o miyC/k jlhn Hkh izLrqr dj jgh gWwA pqafd fookg ds le; dksbZ Hkh efgyk vius ifr o llqjkyokyksa ds izfr HkkoukRed :i ls ldkjkRed lksp ysdj tkrh gS rFkk oSokfgd thou ds fuoZgu ds izfr visf{kr vkSj vk'kkfUor gksrh gSA ijUrq eq>s bu ifjfLFkfr;ksa ls xqtjuk iMs+xk ,slh vis{kk ugha FkhA ,sls le; esa eq>s Hkh ifr o llqjky okyksa ls ,slh gh vis{kk Fkh blfy, bl ifjfLFkfr ls vufHkK Fkh fd llqjkyokyksa dh izrkM+uk ds QyLo:i eq>s f'kdk;r ds le; mijksDr lHkh lkekuksa dh lwph vkSj [kpZ dk fooj.k Hkh izLrqr djuk iMs+xkA blfy, dqN lkekuksa ds [kpZ vkSj jlhnsa tks fookg dh O;Lrrk vkSj rhu o"kksZ ds yacs varjky ds i'pkr~ xqe gksus dh laHkkouk ls badkj ugha fd;k tk ldrkA vr,o esjs ikl tks Hkh lkekuksa dh lwph o [kpz dh jlhnsa miyC/k gS og eSa izLrqr dj jgh gWw] rFkk migkj esa izkIr leLr lkekuksa dh lqph Hkh izLrqr dj jgh gWwA blds vfrfjDr viuh Le`fr ds vk/kkj ij Hkh fn x, lkekuksa o vigkj dh lqph Hkh izLrqr dj jgh gwWA lknj fuosnu lfgr 35 fnukad izkfFkZ;k 04@11@18 lgh@& Jherh ekulh pkScs] ifr jkgqy pkScs] fuoklh&e-ua- 115@,] lsDVj&3] dk'kh vikVZesaV ds lkeus] xhrkatyh uxj] jk;qij N-x-
36. It is the case of the prosecution that on 15.12.2018 notice under Section 91 CrPC was served to the petitioners and Mr.Rahul Pandey by Station House Officer asking them to produce the articles sought by her, which respondent No.2 has taken to her matrimonial home (Jabalpur) after marriage which states as under: uksfVl /kkjk 91 C.R.P.C. izfr] 01- jkgqy ik.Ms; firk uanfd'kksj ik.Ms; 02- Jherh lhek ik.Ms; ifr uanfd'kksj ik.Ms; 03- uanfd'kksj ik.Ms;
04- lqehr ik.Ms; firk uanfd'kksj ik.Ms; 05- fufru ik.Ms; firk uanfd'kksj ik.Ms; fuoklh&U;w 'kksHkkiqj dkWyksuh Oghdy QSDVªh ds ihNs tcyiqj ¼e0iz0½ fo"k;%& L=h/ku lkeku izLrqr djus ckcr~A vkidks bl uksfVl ds tfj;sa lwfpr fd;k tkrk gS fd vkiyksxksa ds fo:) efgyk Fkkuk jk;iqj esa vi-dz- 41@18 /kkjk 498¼,½] 506] 34 rk- fg- iathc) gSA fookg ds le; tks L=h/ku migkj Lo:i izkfkFkZ;k Jhefr ekulh pkScs vius lkFk llwjky ysdj xbZ gS A mu lkekuksa dh lwph ,oa vly llhn IkzLrqr dh gSA izkfFkZ;k viuk lkeku pkgrh gS vki 05 fnol ds vUnj izLrqr djsA rkfd izdj.k esa vfxze dk;Zokgh dh tk ldsaA lgh@& 36 Fkkuk izHkkjh efgyk iqfyl Fkkuk jk;iqj ¼e0iz0½ vkjksihx.kksa ds }kjk uksfVl ysus ls badkj lgh@& 15-12-18 The notice is said to have been refused by the petitioners and again notice was issued to the petitioners on 28.1.2018 by sending it by registered post.
37. At this stage, it would be appropriate to notice Section 405 of the IPC which states 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 prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
38. Offence under Section 405 of the IPC is punishable under Section 406 of the IPC which states as under: "406. Punishment for criminal breach of trust. 37 Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
39. Criminal breach of trust consists of any one of the four positive acts namely, misappropriation, conversion, use or disposal of that property. The ingredients of offence of criminal breach of trust are,
(i) That, accused must have been entrusted with the property or dominion over it,
(ii) The accused must have misappropriated the property or disposed of that property in violation of subtract, as such, offence under Section 405 of the IPC can be said to have been committed only when all ingredients of that offence as defined in statute are found to have been satisfied.
40. In the matter of Velji Raghavji Patel v. The State of Maharashtra33 the Supreme Court has clearly held that in order to establish "entrustment or 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 his dominion was the result of "entrustment".
41. In the matter of State of Gujarat v. Jaswantlal 33 AIR 1965 SC 1433 38 Nathalal34 the Supreme Court has held that the expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is 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 fiduciary relationship between them.
42. In Sushil Kumar Gupta v. Joy Shankar Bhattacharjee35 the Supreme Court has held that offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use.... The appellant's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust.
43. The Supreme Court in the matter of The Superintendent & Remembrancer of Legal Affairs, West Bengal v. S.K.Roy36 has held that there are two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a 34 AIR 1968 SC 700 35 AIR 1971 SC 1543 36 (1974) 4 SCC 230 39 misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
44. Similarly, in the matter of Pratibha Rani (supra) the Supreme Court has clearly held that Hindu married woman is absolute owner of stridhan property and can deal with it in any manner she likes. It was observed as under: "7. It is, therefore, manifest that the position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.
28. To sum up, the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property 40 elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.
31. We are clearly of the opinion that the concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which has been administered since more than a century by High Courts, Privy Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar's case seem to have rewritten the law of criminal breach of trust contained in Sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code. A more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of Section 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory butwhat the High Court has said before regarding the applicability of Section 27 of the Hindu Marriage Act and the nature of stridhan as referred to aboveis also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by a spirit of male chauvininism so 41 as to exclude the husband from criminal liability merely because his wife has refused to live in her matrimonial home. We are indeed surprised how could the High Court, functioning in a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law."
45. The principle of law laid down in Pratibha Rani (supra) was reiterated by threeJudge Bench of the Supreme Court in the matter of Rashmi Kumar (Smt) v. Mahesh Kumar Bhada37 and their Lordships considered the meaning and nature of Stridhan and held that wife is absolute owner of stridhana property. It is not the joint property of the wife and the husband. It was observed as under: "10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof."
Their Lordships further held that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any 37 (1997) 2 SCC 397 42 further special agreement to establish that the property was given to the husband or other member of the family. It was observed as under: "13. Thus when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406, IPC with sentence for a period upto three years or with fine or with both, are: [i] entrusting any person with property or with any dominion over property; [ii] the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In Pratibha Rani's case, the majority has extensively considered the words "entrustment" of and "dominion" over the property. All the caselaw in that behalf was exhaustively considered obviating the necessity 43 to tread once over the same. In order to establish entrustment of dominion over the property, both the majority and minority relied on in particular the judgment of this Court in Velji Raghavji Patel v. State of Maharashtra [(1965) 2 SCR 492] wherein it was held that in order to establish entrustment of dominion over the property to an accused person, mere existence of that person's dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. The question therein pertained to the entrustment with the dominion over the partnership property by one partner to the other. It was held that the prosecution must establish that the dominion over the assets or particular assets of the partnership was by a special agreement between the parties. The property of the partnership being a partnership asset, every partner has a right to or a dominion over it. It was held that special agreement was necessary to constitute an offence of criminal breach of trust defined under Section 405, IPC. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. We are in respectful agreement with the majority view in Pratibha Rani's case and consequently requires no reconsideration."
44
46. In the matter of Onkar Nath Mishra and others v.
State (NCT of Delhi) and another38 the Supreme Court quashed the complaint against the petitioner's therein for offence under Section 406, IPC finding that there is no averment as to entrustment of any kind of property by the complainant to the accused person. It was observed as under: "18. In the present case, from a plain reading of the complaint filed by the complainant on 8111994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 I.P.C. It is manifestly clear from the afore extracted complaint as also the relevant portion of the charge sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them. Furthermore, it is also noted in the chargesheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer. Therefore, in our opinion, the very pre requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 IPC was made out."
47. Following its earlier decisions including Onkar Nath Mishra (supra) the Supreme Court again in the matter of V.P. Shrivastava v. Indian Explosives Limited and 38 (2008) 2 SCC 561 45 others39 quashed the complaint for offence under Sections 405 and 406 of the IPC holding that there is nothing in the complaint, which even remotely suggest that complainant/IEL had entrusted any property to the appellant / accused and appellant / accused had dominion over any of such properties dishonestly converted to their own use.
48. From the principle of law flowing from the aforesaid judgments rendered by their Lordships of the Supreme Court (supra), it is absolutely clear that the accused 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 prescribing the mode in which such trust is to be discharged, or of legal contract, express or implied, then only offence under Section 405 IPC can be said to be made out.
49. A careful perusal of the complaint dated 7.4.2018/18.4.2018 would show that respondent No.2/ complainant in her complaint has stated that ₹22 lakhs was given as present by her family friends and ₹3 lakhs as stridhan by her father at the time of 39 (2010) 10 SCC 361 46 marriage, which was obtained by the petitioners and no share was given to her. It is nowhere alleged that respondent No.2 at any point of time entrusted the said stridhan or presents given at the time of marriage to the petitioners herein, which is one of the essential ingredients to establish the offence under Sections 405 and 406 of the IPC.
50. Similarly, it is not clear from perusal of complaint and connected documents, FIR and statement of respondent No.2/complainant and prosecution witnesses as to how and in what manner the entrustment of stridhan held by respondent No.2 and dominion over property came to be made to the petitioners herein. Similarly, by notice dated 02.11.2018 the Station House Officer, Mahila Thana, Raipur has directed respondent No.2 to submit a list of stridhan / gifts with which she had taken to her matrimonial home and which was given as per letter dated 4.11.2018 (available at page 46 of chargesheet), it nowhere states that these gifts, presents and stridhan were entrusted in any manner to the petitioners herein (four in number). Even notice issued under Section 91 CrPC to the petitioners by the Station House Officer on 15.12.2018 and 28.1.2019 (which is available at page 80 and 81 of the chargesheet) only directs the 47 petitioners and Rahul Pandey to produce the articles which respondent No.2 had taken along with her to her matrimonial home. It is not the allegation that the said stridhan property or gifts or presents at any point of time were entrusted to the petitioners herein, who are inlaws of respondent No.2 herein, as such, there is no iota of evidence in the entire chargesheet as to how and in what manner entrustment of stridhan property or dominion over property came to be made to the petitioners who are relatives of husband of respondent No.2, as such, one of the essential ingredients for constituting the offence under Section 405 of the IPC that entrustment of stridhan or dominion of stridhan property to the petitioners are totally missing.
51. Not only this, the Supreme Court in the matter of Pratibha Rani (supra) has clearly held in para28 that the husband has no justification for not returning the stridhan as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. It was further held that the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts and entrusted property 48 elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC.
52. In the instant case, there is no whisper or evidence on record or in the entire chargesheet that the complainant / respondent No.2 at any point of time demanded / claimed for return of said articles having entrusted to the petitioners and it has not been returned by the petitioners. Only notice under Section 91 CrPC is said to have been served by the Station House Officer, Mahila Thana, Raipur to the petitioners on 15.12.2018 and 28.1.2019 to claim return of stridhan and notice is said to have been served by the Station House Officer to the petitioners. The notice which is said to have been served by the Station House Officer who was not an agent of respondent No.2 / complainant. He being investigating officer under the provisions of the CrPC and his demand, if any, for return of stridhan cannot be said to be demand on behalf of respondent No.2, as such, the prosecution has failed to make out the essential ingredient of offence under Section 406 of the IPC as there is no allegation that as to how and in what manner the entrustment of stridhan property or dominion over stridhan and gifts/presents came to be made to the petitioners who are only 49 relatives i.e. fatherinlaw, motherinlaw and brother of husband of respondent No.2 particularly when respondent No.2 never made any demand from the petitioners and it is not the case that on being demanded the stridhan property / presents, the petitioners or her husband have not returned the said stridhan, therefore, offence under Section 406 of the IPC is made out. It is not the case that the petitioners were ever entrusted with stridhan or presents and gifts which were given to respondent No.2 at the time of marriage.
53. Similarly, it is also the case of the prosecution that the vehicle Mahindra XUV was given by her father to respondent No.2 at the time of marriage, which was sold by the petitioners and Mr.Rahul Pandey, her husband on 18.2.2017 to one Ashish Kumar Sahu and the vehicle was transferred in his name. Ashish Kumar Sahu who has purchased the vehicle has been examined under Section 161 CrPC on 15.12.2018. He has clearly stated that on being informed through father of respondent No.2 he purchased the said vehicle on 18.2.2017 and ₹ 2 lakhs were given to respondent No.2 and remaining amount was got financed from Finance Company. Thereafter, on 14.2.2019 supplementary statement of Mansi Choubey, respondent No.2 herein 50 was recorded in which she has stated that after marriage, the said XUV vehicle bearing registration No.MP 20 CE 6877 was sold by her husband Rahul Pandey and the petitioners and said ₹ 2 lakhs was not given to her. The fact remains that the said vehicle was sold by respondent No.2 to Ashish Kumar Sahu on 18.2.2017 and vehicle was transferred in the name of Ashish Kumar Sahu after completing the formalities required under Section 50 of the Motor Vehicles Act, 1988 and rules made thereunder and necessary registration certificate was issued in favour of Ashish Kumar Sahu on 22.4.2017, which has been filed along with chargesheet and is available at page 64 of the chargesheet, which clearly demonstrates that transfer of said vehicle was made in accordance with the provisions contained in Section 50 of the Motor Vehicles Act and rules made thereunder and FIR was lodged as late as on 7.4.2018 / 28.4.2018. It is unbelievable that vehicle in question was sold on 18.2.2017 and respondent No.2 started living separately from her inlaws and from her husband from 27.7.2017 and she has lodged the report on 7.4.2018 / 28.4.2018 and she did not make any statement that she was not given proceeds of sale in her statement recorded firstly on 13.10.2018 and when Ashish Kumar 51 Sahu, purchaser of the said vehicle, made statement on 15.12.2018 that he has already given ₹ 2 lakhs to respondent No.2, then only by way of supplementary statement made on 14.2.2019 respondent No.2 made statement that vehicle was sold by Rahul Pandey and the petitioners and she was not given the sale proceeds of ₹ 2 lakhs. So far as XUV vehicle is concerned, there is no evidence on record that at any point of time it was entrusted to the present petitioners and she has specifically named her husband Rahul Pandey that he sold the vehicle to Ashish Kumar Sahu, as such, taking the contents of the FIR as it is and documents as filed by the prosecution in shape of chargesheet, it cannot be held that the petitioners have committed the offence under Sections 406 and 420 of the IPC and the petitioners' case is covered by the parameters laid down by the Supreme Court in Bhajan Lal's case (supra) and prosecution against them for the above stated offences deserves to be quashed.
54. It would be appropriate to consider the judgments cited by learned counsel for the respondents.
(i) In the matter of Mohd. Allauddin Khan (supra) the Supreme Court has held that the High Court has no jurisdiction to appreciate the evidence in 52 proceedings under Section 482 CrPC being matter of appreciation of evidence during trial.
(ii) Similarly, in the matter of Saroj Kumar Sahoo (supra) their Lordships of the Supreme Court have explained the nature, scope, purpose and exercise of power and jurisdiction under Section 482 CrPC and held that inherent power is to be exercised sparingly and that too in the rarest of rare cases. It is to be exercised ex debito justitiae, to do real and substantial justice and not to stifle legitimate prosecution and the High Court should not embark upon an enquiry as to reliability of evidence to sustain the allegations, which is the function of the trial Judge.
(iii) In J.P.Sharma (supra), it has been held by their Lordships of the Supreme Court that the High Court's jurisdiction under Section 482 CrPC to quash criminal complaint and proceedings cannot be exercised, if primafacie offences are made out on the basis of allegations made in the complaint without going into the matter otherwise of the allegation.
(iv) In the matter of Taramani Parakh (supra) the Supreme Court has held that if allegations are absurd or do not makeout any case or if it can be held that 53 there is abuse of process of law, the proceedings can be quashed, but if there is triable case, the Court does not go into reliability or otherwise the version or the counter version. In matrimonial cases, the Courts have to be cautious when omnibus allegations are made particularly against relatives, who are not generally concerned with the offences of the couple.
55. As a fallout and consequence of the abovestated legal analysis, Criminal Case No.2614/2019 (Rahul Pandey and others v. State of Chhattisgarh and others) pending in the Court of Judicial Magistrate First Class, Raipur (Chhattisgarh) is hereby quashed to the extent of coaccused herein namely Nand Kishore Pandey, Sumit Pandey, Nitin Pandey and Seema Pandey only. Prosecution against Mr.Rahul Pandey shall continue. It is made clear that all the observations made in this order are for the purpose of deciding the petition filed by the petitioners hereinabove and this Court has not expressed any opinion on merits of the matter and concerned Court will decide criminal case pending against one of the coaccused strictly in accordance with law without being influenced by any of these observations made hereinabove.
56. The petition under Section 482 CrPC is allowed to the 54 extent indicated hereinabove. No cost(s).
Sd/ (Sanjay K.Agrawal) Judge B/