Whether court can refuse to release husband on anticipatory bail in an offence U/S 498A of IPC if stridhan is to be recovered from him?

 The Petitioner is accused of offence under Sections 498-A, 406

IPC. The perusal of the status report shows that the custodial

interrogation of the Petitioner is being sought only for recovery of Istridhan. The recovery of Istridhan alone cannot be a reason to deny anticipatory bail to the Petitioner. The police are vested with sufficient powers under the Cr.P.C to conduct searches of premises. Further, the material on record shows that there are cross-complaints. The petitioner had filed a complaint in 2018 stating that the complainant’s father is threatening him. There is nothing on record to show that the Petitioner and his family are in such a position that they would be able to threaten the witnesses. It is trite law that the Police Officer before arresting the accused who is accused of offence which is punishable with

imprisonment for a period of seven years has to be satisfied that such arrest is necessary to prevent a person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him by disclosing such facts to the Courts or the Police Officer; or unless such accused person is arrested, his presence in the court whenever required

cannot be ensured. As Stated earlier, the mere fact that the recovery of Istridhan cannot be the sole ground for arresting a person for an offence under Sections 498-A and 406 IPC. {Para 9}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE MATTER OF: BAIL APPLN. 2029/2018

POORAN SINGH  Vs STATE OF DELHI 

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

Dated: 10th DECEMBER, 2021

Print Page

How to ascertain jurisdiction of court in case of misappropriation of streedhan property?

When the legislature in its wisdom has given such

a right by amending Section 181 (4) of the Code in the year 1978 the

judicial authority cannot deprive a citizen of India such advantage

acquired by law on the ground that it may be misused.

Section 181(4) of the Code runs thus:

“Any offence of criminal misappropriation or of criminal breach of

trust may be inquired into or tried by a Court within whose local

jurisdiction the offence was committed or any part of the property which is

the subject of the offence was received or retained, or was required to be

returned or accounted for, by the accused person.” (emphasis supplied

by me)

This Court wants to emphasize on the word ‘or was required to be

returned or accounted for, by the accused person’. It is true that as per

claim of the de facto complainant the dowry was paid at Siliguri and as perFIR when the victim opposite party was driven out from her matrimonial

abode she claimed her ‘Stridhan’ articles including her certificates but

those were not given to her and as such this Court is satisfied that there is

prima facie case under Section 406 of the Indian Penal Code.

It is the admitted position that at present this opposite party wife is

residing at her father’s house at Lilua, Howrah. Thus, if the articles are to

be returned after the conclusion of the trial the venue of such return must

be either the court at Howrah or the residence of the de facto complainant,

the victim of this case. Thus, this Court is satisfied that interest of justice

demands that in this scenario the protection must be given to the deserted

lady by applying Section 181 (4) of the Code. The legislature in its wisdom

amended that sub-section and if such advantage has been given to the wife

or the de facto complainant why should the court will take out that

advantage from her mouth. Her entitlement as per law should not be taken

out in the disguise that such sub-section may be used just to oppress her

counterpart.

Thus, in view of the discussion so long made this court is satisfied

that there is enough of material to go for trial even against the petitioners.

This court is also satisfied that in view of Section 181 (4) of the Cr.P.C, the

Chief Judicial Magistrate, Howrah has perfect jurisdiction over the case.Thus, this application under Section 482 of the Code of Criminal

Procedure, 1973 is answered in the negative and dismissed accordingly.

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Present :  Justice Indrajit Chatterjee

C.R.R. 1529 of 2014

Ashok Kumar Marda & Ors.

V

State of West Bengal & Anr.

Judgment on : 06.10.2016.

Citation: 2017 CRLJ 73

Print Page

When prosecution for criminal misappropriation of stridhan is not tenable against IN-LAWS?

Giving of dowry and the traditional presents at or about
the time of wedding does not in any way raise a presumption that
such a property was thereby entrusted and put under the dominion
of the parents-in-law of the bride or other close relations so as to
attract ingredients of Section 6 of the Dowry Prohibition Act. As
noticed earlier, after marriage, Syamala Rani and first appellant
were living in Bangalore at their matrimonial house. In respect of
‘stridhana articles’ given to the bride, one has to take into
consideration the common practice that these articles are sent
along with the bride to her matrimonial house. It is a matter of
common knowledge that these articles are kept by the woman in
connection with whose marriage it was given and used by her in
her matrimonial house when the appellants 2 to 6 have been
residing separately in Vizianagaram, it cannot be said that the
dowry was given to them and that they were duty bound to return
the same to Syamala Rani. Facts and circumstances of the case
and also the uncontroverted allegations made in the complaint do
not constitute an offence under Section 6 of the Dowry Prohibition
Act against appellants 2 to 6 and there is no sufficient ground for

proceeding against the appellants 2 to 6. Be it noted that
appellants 2 to 6 are also facing criminal prosecution for the
offence under Sections 498A, 304B IPC and under Sections 3 and 4
of the Dowry Prohibition Act. Even though the criminal proceeding
under Section 6 of the Dowry Prohibition Act is independent of the
criminal prosecution under Sections 3 and 4 of Dowry Prohibition
Act, in the absence of specific allegations of entrustment of the
dowry amount and articles to appellants 2 to 6, in our view,
continuation of the criminal proceeding against appellants 2 to 6 is
not just and proper and the same is liable to be quashed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 45 OF 2016
(Arising out of SLP (Crl.) No. 9344 of 2014)
BOBBILI RAMAKRISHNA RAJU YADAV & ORS. 
Versus
STATE OF ANDHRA PRADESH REP.
R. BANUMATHI, J.
Citation;(2016) 3 SCC309
Dated;January 19, 2016

Print Page

When prosecution for offence U/S 498A and S 406 of IPC can be quashed against parents in law?

 We have seen the complaint very carefully. From a bare reading of the complaint it is apparent that the problem started barely after six months of the marriage. In paragraph 3 of the complaint, it is stated that all the accused came to complainant's parents house at Gidderbaha and asked her parents to give the complainant more gold and other articles as dowry otherwise they would leave the complainant there and Rajesh would be married second time. In paragraph 4, the complaint is against Rajesh in the sense that the accused Rajesh asked the complainant to hand over the ornaments and clothes to his parents lest they are lost in the way. On reaching to Delhi when the ornament were asked back by the complainant, they were not returned back. When we see the complaint as a whole it is basically against the accused Rajesh. All the allegations are against Rajesh. There is undoubtedly some reference to the present appellants, but what strikes us is that there are no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description and as to the date when the ornaments were asked back and were refused. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. What strikes us more is that even in paragraph 10 of the complaint where the complainant says that she asked for her clothes and ornaments which were given to the accused and they refused to give these back, the date is significantly absent. It seems from the order taking cognizance that the learned Magistrate has mentioned about the version of the complainant is supported by Bhagwati and Dharampal to the fact that the ornaments were entrusted to Krishan Saroop and Rajesh while clothes were entrusted to Rakhi and they refused to hand over the same. Even their statements could not be better than the vague complaint. Even about the clothes, the date on which they were handed over to Rakhee who happens to be the daughter of the present appellants and the other details are very significantly absent. It was also the version of the complainant that she was beaten in support of which she has filed a certificate from AIIMS hospital, New Delhi. However, in the complaint, it is not seen as to on which date she was beaten and by whom. It is significant to note that the matter against the Rakhee, the 4th original accused has already been dropped as she was in fact not even the resident of the same house.

 In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.

 The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.

Supreme Court of India

Neelu Chopra & Anr vs Bharti on 7 October, 2009

Bench: V.S. Sirpurkar, Deepak Verma

REPORTABLE

 Citation:  2010CriLJ448, (2009)10SCC184, 

Print Page

When prosecution for offence U/S 498A and S 406 of IPC should not be quashed?

Criminal - Quashing of Proceeding - Sections 498A,384,327,406,506,120B of Indian Penal Code,1860 (I.P.C.) - Section 482 of Criminal Procedure Code,1973 (Cr.P.C.) - Petitioners sought for quashing of proceeding taken against him for offences punishable under I.P.C. - Hence, this Revision Application - Held, FIR showed clearly that Petitioners together with other accused persons named in that FIR created pressure on complainant to write letter of declaration for withdrawal of case and acknowledging receipt of her stridhan articles from them - Petitioners helped Accused No. 1 to extort signatures of complainant on some blank papers under threat of death and more grievous injuries - On perusal of case diary it appeared that Investigating Officer had collected some evidence in support of FIR suggesting active role of Petitioners in matter of coercing signatures of complainant on some blank papers - Further evidence so far collected by I.O. before stay order was granted, indicated that allegation against Petitioners were supported by evidence - It was found that FIR in question disclosed commission cognizable offence broadly and prima facie wherein Petitioners were involved - Moreover at stage of investigation when broad and prima facie case was made out against Petitioners it would be improper for Court to exercise inherent power under Section 482 of Cr.P.C. and quashed proceeding - Hence prayer for quashing of proceeding against Petitioners was liable to be rejected - Revision Application dismissed.
"Court shall not allow quashing of proceeding against accused if charges is proved at prima facie stage."

Kolkata High Court (Appellete Side)

Rupa Agarwal & Anr vs The State Of West Bengal on 23 March, 2011

Author: Kanchan Chakraborty

Print Page

What will be period of limitation for offenceU/ S 406 of IPC for misappropriation of streedhan?

So far as the ground relating to limitation is concerned, it is contended that Under Section 406,IPC punishment provided is three years' R.I. and fine; and therefore, Clause (c) of Sub-section (2) of Section 468, Cr. P.C. is attracted which envisages that after a lapse of period of limitation, there is a bar to take cognizance. In this context, it is argued that it was in the year 1973 according to the averments of the complainant, non-applicant, she was turned out from the marital home and her Stridhan was not given to her. Therefore, the period of limitation for purposes of Section 468, Cr. P.C. is to be computed from 1973 and the complainant having not filed the complaint within a period of three years from 1973, it is barred by limitation.

 No doubt, non-applicant daughter-in-law was turned out from the marital home in 1973 and accordingly, a report was lodged on 5-12-1973 and also on 17-12-1973 and demands after demands were also made for return of Stridhan but no heed was paid and ultimately on 2-11-1987, a registered notice with acknowledgement was also sent. Therefore, when the demand is made and the notice is served, from that date a fresh period of limitation shall begin to run and this will be a continuing offence and the provisions of Section 472, Cr. P.C. would be attracted which read as under :

"In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues."

In Bhagirath Kanoriya v. State of M.P., AIR 1984 SC 1688, where the accused persons were charge-sheeted for non-payment of employer's contribution towards provident fund before the due date, it has been held that the offence being a continuing offence, the period of limitation prescribed by Section 468, Cr. P.C. cannot have any application and under the circumstances, provisions of Section 472, Cr. P.C. will be attracted giving fresh period of limitation to run at every moment of the time during which the offence continues. In the instant case, whenever the demand is made, the period of limitation will be computed from that date. The last notice was served on 2-11-1987 and the complaint was filed on 12-1-1988 i.e. within three months from the date of notice. Therefore, the complaint is not barred by limitation. Besides this, provisions ofSection 473, Cr. P.C. are emphatic giving jurisdiction to the Court for extending the period of limitation in certain cases and where the trial Court is satisfied that the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice, the trial Magistrate may take cognizance of an offence even after expiry of the period of limitation prescribed UnderSection 468, Cr. P.C. (hereinafter referred to as the Code). However, the facts of the instant case do not fall within the ambit of Section 473, Code but certainly fall within the ambit of Section 472of the Code being a continuous offence, as discussed above; and the submission made by the learned counsel in this regard is rejected being without any force.

Madhya Pradesh High Court

Bairo Prasad And Anr. vs Smt. Laxmibai Pateria on 27 February, 1991

Equivalent citations: 1991 CriLJ 2535

Bench: B Lal

Print Page

Whether vicarious liability can be imposed upon any person for acts of other person for offence of criminal breach of trust U/S 406 of IPC?

The learned counsel for the petitioners has rightly argued that in the absence of any clear, specific and unambiguous allegations either concerning entrustment of articles of dowry (constituting Istri Dhan) at the time of the marriage, to a particular accused, or, at a later stage, in the absence of specific allegations either that the accused refused to return Istri Dhan or articles of dowry entrusted to any individual accused or that the same were, dishonestly and mala fide retained by that particular accused, in order to cause wrongful gain to him and wrongful loss to the complainant, no prima facie case for commission of any offence punishable under Section 406, I.P.C. would be made out against that particular accused.

 Mere general allegations in the complaint either concerning entrustment of articles of dowry constituting istridhan to all the accused, or, their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima facie case for commission of offence punishable under Section 405 or 406, I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with mala fide intention retained the same and had refused to return those articles to the wife for whose exclusive use such articles were allegedly entrusted to him, no prima facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima facie be said to be responsible only for his individual acts and cannot be fastened with joint or vicarious liability.

Punjab-Haryana High Court

Dr. Vinod Kumar Goyal And Ors. vs Union Territory And Ors. on 14 December, 1990

Equivalent citations: 1990 CriLJ 2333

Bench: S Grewal

Print Page

When directors of company should not be held vicariously liable for offence committed by company under S 406 of IPC?

As, admittedly, drafts were drawn in the name of the Company, even if the Appellant was its Managing Director, he cannot be said to have committed an offence Under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.

Equivalent Citation: 2014(4)RCR(Criminal)908

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2090 of 2014 (Arising out of SLP (Crl.) No. 3099 of 2013)

Decided On: 22.09.2014

 Uday Shankar Rao Vs. Amarendera Kumar Dutta

Hon'ble Judges/Coram:T.S. Thakur and R. Banumathi, JJ.

Print Page

Whether offence of S 406 or S 420 of IPC is made out if there is breach of contract?

In my view, the complainant also has not established that the accused from the inception had an intention to adduce the complainant to deliver the property and from the inception intended to cheat the accused. The complainant has relied on the fact that apart from paying the marginal money no installment was paid by the accused and from this an inference could be drawn about the intention of the accused. Reliance was placed on Illustration F to Section 415 and was submitted that this case was squarely covered under the said illustration. It is not possible to accept the submission of the learned counsel appearing on behalf of the appellant. In my view, there is no evidence on record from which an inference could be drawn that the accused from the inception had intended to cheat the complainant. In a case where there is a breach of an agreement executed between the parties merely because there is a breach and several amounts which are due and payable by one party to the other are not paid it cannot be said that the offence punishable under Section 420 or that the offence of criminal breach of trust is committed by the accused. There are catenas of judgments of the Supreme Court and this Court wherein it has been observed that in order to attract the provisions of Section 406 or Section 420 of the Indian Penal Code the ingredients of the said offence have to be established. It is no doubt true that in a given case of a breach of contract a prosecution could be launched under the provisions of Section 406 or Section 420 and at the same time simultaneously a civil suit could also be filed. However, this is not always true and in order to establish that the breach of contract had resulted into an offence punishable under Sections 406 or 420 of the Indian Penal Code there should be sufficient material on record on the basis of which such inference can be drawn. In my view, from the evidence on record, it is not possible to draw such an inference.

Bombay High Court

National Small Industries Corpn. ... vs Samudra Corporation And Anr. on 17 August, 2005

Bench: V Kanade

Citation;2005 CRLJ 3432 Bom

Print Page

How to ascertain jurisdiction of court in case of offence under S 498A and 406 of IPC?

“12. The crucial question is
whether any part of the cause of
action arose within the
jurisdiction of the court
concerned. In terms of Section 177
of the Code, it is the place where
the offence was committed. In
essence it is the cause of action
for initiation of the proceedings
against the accused.”
It is true that Section 177 of the Code
refers to the local jurisdiction where
the offence is committed. Though the
expression “cause of action” is not a
stranger to criminal cases, in view of
Sections 178 and 179 of the Code and in
the light of the specific averment in
the complaint of the appellant herein,
we are of the view that the said
decision is not applicable to the case
on hand.
10. Mr. Sanyal also relied on a
decision of this Court in Bhura Ram
and Others vs. State of Rajasthan and
Another, (2008) 11 SCC 103 wherein
following the decision in Y. Abraham
Ajith and Others (supra), this Court
held that “cause of action”; having
arisen within the jurisdiction of the
court where the offence was committed,
could not be tried by the court where
no part of offence was committed. For
the same reasons, as mentioned in the
earlier paragraph, while there is no
dispute as to the proposition in view
of the fact that in the case on hand,
the offence was a continuing one and
the episode at Gaya was only a
consequence at the continuing offence
of harassment and ill-treatment meted
out to the complainant, clause (c) of
Section 178 is attracted. In view of
the above reason, both the decisions
are not applicable to the facts of
this case and we are unable to accept
the stand taken by Mr. Sanyal.
11. We have already adverted to the
details made by the appellant in the
complaint. In view of the specific
assertion by the appellant-wife about
the ill-treatment and cruelty at the
hands of the husband and his relatives
at Ranchi and of the fact that because
of their action, she was taken to her
parental home at Gaya by her husband
with a threat of dire consequences for
not fulfilling their demand of dowry,
we hold that in view of Sections 178
and 179 of the Code, the offence in
this case was a continuing one having
been committed in more local areas and
one of the local areas being Gaya, the
learned Magistrate at Gaya has
jurisdiction to proceed with the
criminal case instituted therein. In
other words, the offence was a
continuing one and the episode at Gaya
was only a consequence of continuing
offence of harassment of illtreatment
meted out to the complainant, clause
(c) of Section 178 is attracted.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CR. MISC. PETITION NO.1581/2010
Kuldeep Singh & Ors.
Vs.
State of Rajasthan & Anr.
Date of Order : 21st February, 2014
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI

Print Page

Whether persons not residing with husband can be charged for criminal breach of trust relating to streedhan of wife?

In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.

Equivalent Citation: 2015ALLMR(Cri)2607, 2015(2)Crimes368(Bom.)

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 251 of 2014

Decided On: 14.01.2015

 Gopal and Ors.Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:S.B. Shukre, J.

Print Page

When offence of misappropriation of streedhan by IN-LAWS is not made out?

In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.

Equivalent Citation: 2015ALLMR(Cri)2607, 2015(2)Crimes368(Bom.)

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 251 of 2014

Decided On: 14.01.2015

 Gopal and Ors.

Vs.

 State of Maharashtra and Ors.

Coram:S.B. Shukre, J.

Print Page

When offence under S 406 and S 409 of IPC is not made out?

In Ram Narayan Popli v. Central Bureau of Investigation[1], this Court, per majority, has explained “entrustment” in paragraph 363 as under: - “The term “entrustment” is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.” In State of Gujarat v. Jaswantlal Nathalal[2], this Court in paragraph 8 has observed that a mere transaction of sale cannot amount to an entrustment.

At this stage we also think it proper to observe that in the present case, even if the allegations made in the complaint are taken to be true, the ingredients of the offence punishable underSection 409 IPC for which appellants are summoned, are also not made out. To constitute an offence punishable under Section 409 IPC, apart from entrustment, it is also essential requirement that it should be shown that the accused has acted in the capacity of a public servant, banker, merchant, factor, broker, attorney or agent. It is nowhere shown in the complaint that the appellants have acted in any of the above capacities.

Supreme Court of India

Mr. Robert John D'Souza & Ors vs Mr. Stephen V. Gomes & Anr on 21 July, 2015

Bench: Dipak Misra, Prafulla C. Pant

Print Page

When family members of husband can not be held guilty for offence U/S 406 of IPC?

 So far as the offence relating to criminal breach of trust
is concerned, I find that the allegation has been made only against
the accused No.3 i.e. petitioner No.3 that the ornaments, on her
command, were entrusted to her and later on were refused to be
handed over to respondent No.2 by petitioner No.3accused
No.3.
No allegation regarding entrustment of the ornaments to accused
No.3 on her demand and also on the demand of remaining accused
has been made. Entrustment of the property and refusal to part
with property are essential ingredients of the offence punishable
under Section 406, as held in the case of Onkar Nath Mishra and
others vs. State (NCT OF DELHI) and another, decided by the
Supreme Court of India, on 14.12.2007 in Case No. Apeal (Crl)

1716 of 2007 relied upon by the petitioner No.1. Since, these
essential ingredients of the offence punishable under Section 406
have not been prima facie made out against the accused Nos.1 and
2 i.e. petitioner Nos.1 and 2, the order of issuance of process
against them for the said offence cannot be said to be legal and
proper and as such it deserves to be quashed and set aside.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.272 OF 2014
 Shri Shridhar Bandaru,


...VERSUS...
 State of Maharashtra,

CORAM
: S.B. SHUKRE, J.
DATE : 19 th JANUARY, 2015 .
Citation;2015 ALLMR(CRI)2161

Print Page

Whether offence U/S 406 of IPC is made out when there is withholding of payment of contractor?

Section 420 IPC deals with cheating. Essential ingredients of Section 420 IPC are:- (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and (iii) mens rea of the accused at the time of making the inducement.

18. In the present case, looking at the allegations in the complaint on the face of it, we find no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.

 Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a short cut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120B IPC, is liable to be quashed.

Supreme Court of India

Binod Kumar & Ors vs State Of Bihar & Anr on 30 October, 2014

Bench: T.S. Thakur, R. Banumathi

Citation;2015 ALLSCR293

Print Page

How to ascertain limitation in case of misappropriation of Stri-dhan?

 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 fldely 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 Section200 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 having 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. As 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.

Supreme Court of India

PETITIONER:
SMT. RASHMI KUMAR
Vs.
RESPONDENT:
MAHESH KUMAR BHADA
DATE OF JUDGMENT: 18/12/1996
BENCH:
K. RAMASWAMY, S.B. MAJUMUDAR, G.T. NANAVATI
 Citation: 1997(99(3))BOMLR465, JT1996(11)SC175, 1996(9)SCALE388, (1997)2SCC397,

Print Page