Gujarat High Court
Raxaben And Ors. vs State Of Gujarat And Ors. on 1 October, 1991
Equivalent citations: 1992CRILJ2946
ORDER S.M. Soni, J.
1. Applicants-accused in M. Case No. 40/91 on the file of Judicial Magistrate First Class (Court No. 3) at Vadodara have filed this petition to quash and set aside the order dated of enquiry dated 11-4-1991 directed by him Under Section 156(3) of Code of Criminal Procedure 1973 (Code for short). The order or enquiry is challenged on the ground that the Ld. Magistrate ought not to have been taken the cognizance Under Section 494 of the Code as the complainant is not the husband of accused No. 1 in the complaint and offence Under Section 406 and Under Section 420 of Indian Penal Code (I.P.C. for short) cannot go together as in the one there is an element of wilful entrustment while in the other there is an element of purposeful deprivation of the property.
2. Few facts to appreciate these contentions of challenge are as under:
Respondent No. 3-Original complainant (hereinafter be referred to as the complainant) has a power of attorney holder of one Navinchandra Gordhanbhai Patel-husband (hereinafter referred to as husband) of applicant No. 1-accused No. 1 filed a complaint against the applicants-accused (hereinafter be referred as accused) Under Sections 420, 406, 494, 120(b) and 114 of IPC. The facts which constitute the offence alleged are that the accused No. 1 married with Navinchandra Gordhandas in India on 18-2-83. After marriage husband went to America and had sent visa for accused No. 1 wife who also joined with her husband in America. Both of them came to India in January, 1990, when they came to India in January 1990, it is the allegation of the husband that at the instigation of her parents accused No. 1 wife started behaving improperly and manner not befitting to a gentle lady. She also tried to run down the family members of the husband. It is alleged that from the joint bank account in America, accused No. 1 wife transferred certain amount to Bank of Baroda, Vadodara and withdrew $ 60,000 by two cheques each of $ 30,000. Accused No. 1 then gave threats that if the husband speaks something, she will give divorce. Both husband and wife went back to America in March 1990. Accused No. 1 came back to India somewhere in May 1991. Husband came to know in America that accused No. 1 wife has married with applicant No. 3 on 10-6-83 at Baroda in Sapna Hall. Thus that accused No. 1 has thereby committed offences of breach of trust and cheating bigamy by marrying again in collusion with accused Nos. 2 to 4. Before her alleged marriage he gave a public notice through power of attorney in a daily Sandesh of 8-6-91 that accused No. 1 is a legally married wife of Navinchandra Gordhandas. Despite this public notice accused No. 3 married with accused No. 1. With these facts the complaint is filed for criminal breach of trust as well as cheating also and for marrying again during the lifetime of the husband by accused No. 1 wife and all the accused having conspired for the same or abetted the commission of offence.
3. Section 198(1) of the Code provides that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence. The relevant proviso for our purpose is (c) which reads as under:
where the person aggrieved by an offence punishable Under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
The proviso therefore makes an exception to the rule that the complaint for offence under Chapter XX of IPC and only be made by some person aggrieved by the offence, and that is in case the person aggrieved by an offence alleged is the wife some alleged blood relation referred (sic). But if the person aggrieved is the husband, proviso (c) to Section 198(1) of Code is not attracted. Therefore, it is clear that when the wife of a person marries again during his lifetime, then husband is the only person aggrieved by the offence committed by the wife. I called upon Mr. Trivedi to let me know whether such an aggrieved person can file a complaint through a power of attorney holder. Mr. Trivedi was not in a position to answer this question. Not only that he was not in a position to substantiate that a complaint Under Section 494 of I.P.C. can be taken cognizance of by the Court event if the same is filed by a power of attorney holder of the aggrieved person. Proviso (c) to Section 198(1) when provides for the persons who on behalf of the wife can file a complaint also suggest that the complaint Under Section 494 cannot be filed even by power of attorney holder. In the present case, the complaint filed Under Section 494 is filed by the power of attorney holder of the husband and Under Section 198(1) of the Code, the Court is not entitled to take cognizance of an offence on such complaint and therefore the order of enquiry Under Section 156(3) so far as Section 494 of IPC is concerned is without jurisdiction and liable to be quashed.
4. Section 406 of the IPC provides for punishment for criminal breach of trust defined in Section 405 of IPC which reads as under:
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.
This means that the person alleged to have dishonestly misappropriated or having converted to his own use or dishonestly uses or disposes of that property must be a person initially entrusted with property or must have dominion over that property at the instance of the original owner who complains breach of trust. Section 420 of the IPC provides for punishment for cheating and dishonestly inducing delivery of property. Cheating is defined in Section 415 to attract the commission of offence of cheating the parting of property by the owner is not voluntary but that parting of property is at the instance of the accused by inducing the owner fraudulently or dishonestly and by deceitful means. To attract an element of cheating if is necessary that but for the fraudulent or dishonest inducement by deceiving being played on the person so deceived would not have parted with the property. For commission of offence Under Section 405, entrustment voluntary. In the instant case, it is clear that there was a joint account in America bank in the name of the husband and accused No. 1 wife. It is the case of the husband that the said amount was then transferred in the joint account in Bank of Baroda at Vadodara and from that account, the wife is alleged to have withdrawn $ 60,000 without the knowledge of the husband. From this fact it is required to be decided whether provisions of Section 406 or 420 of IPC are attracted it may be again a matter of trial whether the withdrawal by accused No. 1 wife was in conspiracy with accused No. 2, the father of the accused No. 1 or was abetted by accused No. 2. From the facts of the case as stated in the complaint, it is clear that the alleged amount is withdrawn prior to the marriage of accused No. 1 with accused No. 3 of whom accused No. 4 is the father. There fore it cannot be said that when the amount is withdrawn prior to marriage with accused No. 3, accused Nos. 3 and 4 would have either abetted or conspired with accused Nos. 1 and 2 in withdrawing the amount from the bank. Therefore in any case there can be no offence against accused Nos. 3 and 4. It will be necessary for the court to decide whether accused No. 1 and 2 have committed any offence either Under Section 406 or Under Section 420 read with 120-B or 114 of Indian Penal Code.
5. In the result, the petition is partly allowed. The order of inquiry under Section 156(3) of the Code is set aside. The Ld. Magistrate is directed to hold an enquiry Under Section 202 of the Code, in the complaint of the complainant against accused No. 1 and 2 and in the allegation of offence Under Section 406; 420, 120-B and/or Section 114 of the Indian Penal Code. Rule made absolute accordingly.