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16. A learned single Judge of the High Court of Delhi in the case of KARISHMA KHOSLA v. STATE OF DELHI3 following the judgment of PRATIBHA RANI (supra) holds as follows:

"3. Summing up the position in respect to the stridhan of a married woman and the applicability of Section 406 IPC, Supreme Court in the decision reported as (1985) 2 SCC 370 Pratibha Rani v. Suraj Kumar held:

"27. In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing him to keep the articles or money in his custody. There is neither any pleading nor any allegation that after her marriage, the appellant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Thus, in our opinion, it cannot be said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore, a criminal case under Section 406 IPC is not maintainable. It is not necessary for us to multiply cases on this point on which there does not appear to be any controversy. We have already pointed out that the stridhan of a woman is her absolute property and the husband has no interest in the same and the entrustment to him is just like something which the wife keeps in a bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he obtains the tacit consent of his wife. When the essential conditions of a partnership do not exist the mere act or factum of entrustment of stridhan would not constitute any co-ownership or legal 2016 SCC OnLine Del. 5639 partnership as defined under Section 4 of the Partnership Act.

"10. ... 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 misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created."

(See Supdt. & Remembrancer of Legal Affairs v. S.K. Roy [(1974) 4 SCC 230: 1974 SCC (Cri) 399], SCC p. 234, para 10.)

17. ....

18. In the present case, from a plain reading of the complaint filed by the complainant on 8-11-1994, 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 IPC. 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 charge- sheet 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 prerequisite 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."

5. Thus the two essential ingredients for offence punishable under Section 406 IPC are entrustment and refusal to return on demand. As noted in the impugned order, the complainant is not physically residing at the matrimonial home. Thus on the one hand the complainant wants to prosecute the respondent No. 2 on the ground that on demand her istridhan articles have not been returned and at the same time insist that those articles should be retained in the matrimonial home and she be not compelled to receive them. In a prosecution for an offence punishable under Section 406 IPC the accused would be within his right to return the articles demanded because a failure to do so would attract the penal provision.

6. Learned counsel for the petitioner has not been able to point out any decision wherein recovery of articles pursuant to a complaint under Section 406 IPC by the investigating officer is not a part of the investigation. Once the complainant has sought dominion over her articles, the investigating officer is entitled to recover the same and hand over the dominion of the same to the complainant. Had the complainant been residing in a clearly marked portion of the matrimonial home, she could have insisted that the articles recovered be kept over there. As noted above the complainant is not residing at the matrimonial home and thus while seeking prosecution of the respondent No. 2 for offence punishable under Section 406 IPC, she cannot at the same time claim that no recovery of the articles be made. If after demanding the goods, the complainant fails to receive the same it will be for the Court to draw an adverse inference if the facts so warrant."