Dipal mehta vs state of gujarat

Excerpt: I am inclined to allow this application only on the ground that the allegations levelled in the first information report do not inspire any confidence. I take notice of the fact that except the bald assertion that time and again the Stridhan properties were demanded but the same were not returned, there is no other averment in this regard. There is nothing on record to indicate as to at what point of time the Stridhan properties were demanded, at which place they were demanded and from whom they were demanded. The applicants are residing at Mumbai whereas the first informant is at Rajkot. More importantly in the first information report lodged in the year 2010 for the offence under section 498A, there is not a whisper of an allegation as regards the illegal retention of the Stridhan Properties. The conspicuous silence in the first information report dated 29th September, 2010 as regards the illegal retention of the Stridhan Properties renders the first information report in question very doubtful. As observed by me earlier, the first informant is at her parental home past almost six years by now.

                  R/CR.MA/6528/2015                                                 JUDGMENT



 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 6528 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
                    

         
        
             CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                           Date : 10/01/2017


                                           ORAL JUDGMENT

HC-NIC Page 1 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT

1. Rule returnable forthwith. Ms. Thakore, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1-State. Mr. Krunal Shahi, the learned advocate, waives service of notice of rule for and on behalf of the respondent No.2.

2. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the first information report bearing No.I-23 of 2015 registered at the Rajkot Mahila Police Station, Rajkot for the offence punishable under section406 read withsection 114 of the Indian Penal Code.

3. The case of the first informant may be summarized as under;

3.1 The first informant got married to the applicant No.1 herein on 6th December, 2004. The applicant No.2 is the mother-in-law, the applicant No.3 is the father-in-law and the applicant No.4 is the sister-in-law of the first informant. The applicants are residing at Mumbai. The first informant, after getting married at Rajkot, left for her matrimonial home at Mumbai. It appears that soon after marriage, the marital disputes cropped up between the first informant and the applicant No.1. The first informant left the matrimonial home in the year 2010. On 29th September 2010, she lodged a first information report at the Mahila Police Station, Rajkot vide I- C.R. No.0/2010 for the offense punishable under sections 498a, 323 and 114 of the Indian Penal Code. In the first information report, general allegations of harassment have been leveled. I am told that the said first information report, later on, came to be transferred to the State of Maharashtra. I am further informed that the applicants herein have initiated some proceedings in this regard before the court concerned at Mumbai. So far as the first information report in question is concerned, the same came to be registered at the Mahila Police Station, Rajkot on 25th March 2015, i.e. almost after a period of more than five years from the date the first informant left her matrimonial home. In the first information report in question, she has alleged that her Stridhan articles have been illegally retained by the applicants. According to the first informant, the illegal retention of the Stridhan properties by the husband or her in-laws amounts to criminal breach of trust punishable under section 406 of the Indian Penal Code.

4. Mr. S.B. Pandya, the learned counsel appearing for the applicants would submit that the first information report as regards the illegal retention of the Stridhan properties is palpably false. According to him, when the first informant left her matrimonial home in the year 2010, she took all her articles along with her. He would further submit that there is not a whisper of an allegation in this regard in the first information report which was filed in the year 2010 for the offence punishable under section 498a of the Indian Penal Code.

5. He would submit that the allegations are too general and vague. He further submits that the offence of criminal breach of trust punishable under section 406 of the Indian Penal Code is not a continuing offense. According to him, since the first informant left the matrimonial home in 2010, she should have HC-NIC Page 3 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT filed the first information report within a period of three years from the date of the commission of the alleged offence. Having failed to do so, no cognizance can be taken by any Court in this regard.

6. In such circumstances referred to above, he prays that there being merit in this application, the same be allowed and the first information report be quashed.

7. On the other hand, this application has been vehemently opposed by Mr. Krunal Shahi, the learned counsel appearing for the first informant. According to him, the offence punishable under section 406of the Indian Penal Code is a continuing offence, more particularly, if the same is one relating to a matrimonial offence. He would submit that the illegal retention of the Stridhan properties by the husband or the in-laws is a continuing offence and, therefore, the period of limitation will have no application in the present case. He further submits that in the first information report itself it has been stated that, time and again, the first informant demanded for the return of her Stridhan articles, but the applicants did not pay heed to the request made by the first informant.

8. In support of his submissions, he has placed reliance on two decisions of the Supreme Court, i.e. (i) in the case of Pratibha Rani vs. Suraj Kumar & Anr., AIR 1985 SC 628 and (ii) in the case of Rashmi Kumar vs. Mahesh Kumar Bhada, (1997) 2 SCC 397.

9. In such circumstances referred to above, Mr. Shahi prays that there being no merit in this application, the same be HC-NIC Page 4 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT rejected.

10. Ms. Thakore, the learned APP, also submitted that the investigation should be permitted to be completed and this application be rejected.

11. Ms. Thakore, the learned APP, invited the attention of the Court to a decision of the Supreme Court in the case of Arun Vyas & Anr. Vs Anita Vyas, (1999) 4 SCC 690.

12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report should be quashed.

13. In Pratibha Rani (Supra), the Supreme Court explained the term entrustment within the meaning of sections 405 and 406 of the Indian Penal Code. I may quote the observations of the Supreme Court in this regard as under;

” We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under ss. 405 and 406, IPC.

21. Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of s. 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under s. 406 I.P.C. Or render the ingredients of s. 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.

22. Coming back to the theory of matrimonial home and the stridhan becoming a joint property of the two spouses, the logical effect of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her exclusive stridhan by the same being treated as a joint property of the spouses. In other words, if this view is taken in its literal sense the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co-owner of the same – such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure common sense. It is impossible to uphold the view that once a married woman enters her matrimonial home her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc. given by her parents as gifts cannot be touched by the husband except in very extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoins that the husband must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would’ be liable to penal action under the present law of the land.

23. One of the arguments addressed by the counsel for the respondent which had appealed to thee full Bench of the Pun jab & Haryana High Court in Vinod Kumar’s case (supra) as also to our learned Brother Varadarajan, J., is that after entering the matrimonial home the custody of the stridhan entrusted by the wife to her husband becomes a sort of a partnership firm and in this view of the matter the question of criminal breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership in the relationship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husband’s keeping the stridhan in his custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter referred to as the ‘Partnership Act’) defines ‘partnership’ thus:

“partnership” is the relation between persons who have agreed to share the profit of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually “partners” and collectively “a firm” and the name under which their business is carried on is called the “firm name”.

The essential ingredients of a partnership are: (1) that there should be an actual or physical overt act on the part of two persons to embark an a business adventure.

(2) that if any business is carried on by one or any of the partners the profits of the business shall be shared by – them in the ratio contained in the partnership agreement.

24. It is, therefore, manifest that in a partnership the wife must by some clear and specific act indicates that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any would have to be shared by both. In other words, one of the essential conditions of a partnership firm is that every partner must have dominion over the property by virtue of the fact that he is a partner. This aspect of the matter was highlighted in a decision of this Court in Velji a Raghavji v. State of Maharashtra(1) where the following observations were made:

“.. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of s. 405. In order to establish ‘entrustment of dominion’ over property to an accused person the 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.”

25. In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the question of the husband’s having dominion over the property does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without her consent.A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a a partnership as defined in the Partnership Act.

26. 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 s. 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 he 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 partnership as defined under s.4 of the Partnership Act.

27. 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 loss 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 b-half of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under s.406 of the IPC. On a parity of reasoning, it is mainfest 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.”

14 In Arun Vyas (supra), the Supreme Court considered the HC-NIC Page 9 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT issue as regards the period of limitation to file the complaint for the offence punishable under sections 498A and 406 of the Indian Penal Code. The Supreme Court also considered the issue whether the offence under section 498A should be termed as a continuing offence. I may quote the observations of the Supreme Court in this regard as under;

“9. The new Code of Criminal Procedure Code contains Chapter XXXVI, (Sections 467 to 473) which deals with limitation for taking cognizance of certain offences.Section 467 defines that the period of limitation for the purposes of that Chapter, to mean the period specified in Section 468 for taking cognizance of offence. Bar to taking cognizance on the expiry of period of limitation and extension of period of limitation, are dealt in by Sections 468 and 473 respectively. The point of commencement of period of limitation in the case of continuing offence is embodied in Section 472 and in the case other than a continuing offence is contained in Section 469. The provisions for exclusion of time in computing the period of limitation are incorporated in Sections 470 and 471.

10. It may be noted here that the object of having Chapter XXXVI in Cr. P. C. is to protect persons from prosecution based on stale grievances and complaints which may turn out to be vexatious. The reason for engrafting rule of limitation is that due to long lapse of time necessary evidence will be lost and persons prosecuted will be placed in a defenceless position. It will cause great mental anguish and hardship to them and may even result in miscarriage of justice. At the same time it is necessary to ensure that due to delays on the part of the investigating and prosecuting agencies and the application of rules of limitation the criminal justice system is not rendered toothless and ineffective and perpetrators of crime are not placed in advantageous position. The Parliament obviously taking note of various aspects, classified offences into two categories, having regard to the gravity of offences, on the basis of the punishment prescribed for them. Grave offences for which punishment prescribed is imprisonment for a term exceeding three years are not brought within the ambit of Chapter XXXVI. The period of limitation is prescribed only for offences for which punishment specified is imprisonment for a term not exceeding three years and even in such cases wide discretion is given to the Court in the matter of taking cognizance of an offence after the expiry of the period of limitation. Section 473 provides that if any Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice, it may take cognizance of an offence after the expiry of the period of limitation. This section opens with a non obstante clause and gives overriding effect to it over all the other provisions of Chapter XXXVI.

11. It is useful to read Section 468 Cr. P. C. here :

“468. Bar to taking cognizance after lapse of the period of limitation – (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be –

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

12. A perusal of the provision, extracted above, shows that sub-section (1) of Section 468enjoins that no Court shall take cognizance of an offence of the categories specified in sub-section (2), after the expiry of the period of limitation mentioned therein. This rule is, however subject to the other provisions of the Code. Sub-section (2) specifies the period of limitation of six months, if the offence is punishable with fine only, of one year, if the offence is punishable with imprisonment for a term not  exceeding one year and of three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Sub-section (3) which is inserted by Act 45 of 1978, deals with a situation where offences are tried together and directs that for the purposes of that section the period of limitation shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

13. The essence of the offence in Section 498-A is cruelty as defined in the explanation appended to that section. It is a continuing offence and on each occasion on which the respondent was subjected to cruelty, she would have a new starting point of limitation. The last act of cruelty was committed against the respondent, within the meaning of the explanation, on October 13, 1988 when, on the allegation made by the respondent in the complaint to Additional Chief Judicial Magistrate, she was forced to leave the matrimonial home. Having regard to the provisions of Sections 469 and 472 the period of limitation commenced for offences under Sections 406 and 498-A from October 13, 1988 and ended on October 12, 1991. But the charge-sheet was filed on December 22, 1995, therefore, it was clearly barred by limitation under Section 468(2)(c) Cr. P. C.

14. It may be noted here that Section 473 Cr. P. C. which extends the period of limitation is in two parts. The first part contains non obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. The first limb confers power on every competent Court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and the second limb empowers such a Court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression in the interest of justice in Section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is ‘interest of justice’. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr. P. C. in favour of a wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interest of justice. This is only illustrative not exhaustive.

15. Any finding recorded by a Magistrate holding that the complaint to be barred by limitation without considering the provisions of Section 473 Cr. P. C. will be a deficient and defective finding, vulnerable to challenge by the aggrieved party. In this case the complaint was clearly barred by limitation and no explanation was offered for inordinate delay; this is what the learned Magistrate took note of and concluded that the complaint was barred by limitation. This is correct insofar as the offence under Section 406 is concerned. Therefore, in regard to Section 406 the order of the learned Magistrate discharging the appellants cannot be faulted with. But regarding offence under Section 498-A the learned Magistrate did not advert to the second limb of the second part in Section 473 Cr. P. C. referred to above. The order of the learned Magistrate on this aspect was unsustainable so the High Court has committed no illegality in setting aside that part of the order of the learned Magistrate.”

15. In Rashmi Kumar (supra), the Supreme Court considered the meaning and nature of “Stridhan”. The Court held the wife to be the absolute owner of the Stridhan property. The Court also considered whether the complaint was time barred in view of the provisions of section 468 of the Cr. P.C.. I may quote the relevant observations in this regard;

“9. A woman’s power of disposal, independent of hehusband’s control, is not confined to saudavika but extends to other properties as well. Devala says: “A women’s maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress…”. In “N.R. Raghavachariar’s “Hindu law – Principles and Precedents” [8th Edn.] edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu law para 468 deals with “Definition of Stridhana”. In para 469 dealing with “Sources of acquisition” it is stated that the sources of acquisition of property in a women’s possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with “Gifts to a maiden”. Para 471 deals with “Wedding gifts” and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with “powers during coverture” it is stated that saudayika meaning the gift of affectionate kindered, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure.

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.

11. In this backdrop, the question that arises for consideration is: whether the fact of a wife’s having been driven out from the matrimonial home without taking along with her stridhana properties, amount to HC-NIC Page 14 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT entrustment with the husband within the meaning ofSection 405, IPC? Section 405 defines “Criminal breach of trust thus:

“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 discharge, 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”.

12. It is not necessary to refer to the Explanations to the said section for the purpose of this case. Hence they are omitted.

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 405and 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 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 case law in that behalf was exhaustively considered obviating the necessity 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 o 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, IPS. 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 HC-NIC Page 16 of 20 Created On Sat Aug 12 05:12:48 IST 2017 R/CR.MA/6528/2015 JUDGMENT agreement with the majority view in Pratibha Rani’s case and consequently requires no reconsideration.

15. The next question that needs to be answered is: whether the complaint filed by the appellant in September 1990 is time barred? Section 468 of the Code prescribes period of limitation. Under sub-section (3) thereof, the period of limitation shall be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, Since the offence alleged to have been committed by the respondent is punishable under Section 406, viz., criminal breach of trust, and the punishment of imprisonment which may extend to three years or with fine or with both, the complaint is required to be filed within three years from date of the commission of the offence. It is seen that the appellant has averred in paragraphs 21 and 22 of the complaint that she demanded from the respondent return of jewellery detailed in Annexure I and household goods mentioned in Annexure II on December 5, 1987 and the respondent flatly refused to return the stridhana of the complainant- wife. In paragraph 22 of the complaint, it is stated that the complainant was forced to leave the matrimonial home in the manner described and the stridhana mentioned in Annexures I and II belonging to the complainant was entrusted to the respondent-accused which he refused to return to the complainant. Thus she has averred that the respondent “has illegally, dishonestly and mala fidely retained and converted it to his own use which is clearly a criminal breach of trust in respect of the aforesaid property”. The complaint was admittedly filed on September 10, 1990 meaning within three years from the date of the demand and refusal by the respondent. The learned Judge relied upon her evidence recorded under Section 200 of the Code. The learned counsel for the respondent read out the text of the evidence to establish that the appellant had demanded in October 1986 for return of the jewellery and that the respondent refused to do the same. Thus it constitutes refusal from which date the limitation period began to run and the complaint have been filed in September 1990, is time-barred, i.e., beyond three years. That view of the learned Judge is clearly based on the evidence torn of the context without reference to the specific averments made in the complaint and the evidence recorded under section 200 of the Code. stated earlier, the sequence in which the averments came to be made was the voluntary promise of the respondent and his failure to abide by the promise. It is incongruous to comprehend the demand for return of jewellery etc, at the stage when she was persuading him to take her into matrimonial home. Accordingly, we hold that the complaint was filed within the limitation. The question, therefore, whether it is a continuing offence and limitation began to run everyday loses its relevance, in view of the above finding. The decisions cited in support thereof, viz., Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy & Ors. [(1993) 3 SCC 4] and Balram Singh vs. Sukhwant Kaur [(1992) Crl. L.J. 792 F.B. (P&H)] hence need not be considered. It is well settled legal position that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. In State of Himachal Pradesh v. Shri Pirthi Chand & Anr. [JT 1995 (9) 411] two of us [K. Ramaswamy and S.B. Majmudar, JJ.] composing the Bench and in State of U.P. Vs. O.P. Sharma [(1996) 7 SCC 70], a three- Judge Bench of this Court, reviewed the entire care law on the exercise of power by the High Court under Section 482 of the Code to quash the complaint or the charge-sheet or the First Information Report and held that the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court. Same view was taken in State of Haryana & Ors. v. Bhajan lal & Ors. [(1992) Supp. 1 SCC 355] and G.L. Didwania & Anr. v. Income Tax Officer & Anr. [(1995) Supp. SCC 25] etc.”

16. Thus, it appears that in Arun Vyas (supra), the Supreme Court took the view that section 498A was a continuing offence, but at the same time, said that section 406 of the Indian Penal Code, in the facts of the case, would not be a  continuing offence. I take notice of the fact that the accused, in the said case, was discharged. The Supreme Court confirmed the discharge of the accused so far as section 406 of the Indian Penal Code is concerned.

17. I am not going into the issue as regards the period of limitation as prescribed under section 468 of the Cr.P.C so far as the offence, with which, I am concerned. I am inclined to allow this application only on the ground that the allegations levelled in the first information report do not inspire any confidence. I take notice of the fact that except the bald assertion that time and again the Stridhan properties were demanded but the same were not returned, there is no other averment in this regard. There is nothing on record to indicate as to at what point of time the Stridhan properties were demanded, at which place they were demanded and from whom they were demanded. The applicants are residing at Mumbai whereas the first informant is at Rajkot. More importantly in the first information report lodged in the year 2010 for the offence under section 498A, there is not a whisper of an allegation as regards the illegal retention of the Stridhan Properties. The conspicuous silence in the first information report dated 29th September, 2010 as regards the illegal retention of the Stridhan Properties renders the first information report in question very doubtful. As observed by me earlier, the first informant is at her parental home past almost six years by now. I am told that in the maintenance proceedings, the court below passed an order directing the husband to pay a sum of Rs.6000/- per month towards the maintenance and Rs.2,00,000/- as a lump-sum amount towards the accommodation. The order passed by the court below was made a subject matter of challenge before this Court and this Court quashed and set aside the order so far as the lump-sum amount of Rs.2,00,000/- towards the accommodation was concerned and upheld the order of maintenance of Rs.6,000/-.

18. In the aforesaid view of the matter, this application is allowed. The first information report bearing No.I-23 of 2015 registered at the Rajkot Mahila Police Station, Rajkot is hereby quashed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(J.B.PARDIWALA, J.

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