Girish Chander Raina vs Sushma Sharma

This is a petition filed by the petitioner under section 561A Cr.P.C. for quashing order dated 25.05.2006 passed by the learned Sub Judge,

Jammu.

The facts in brief are that a complaint under Section 406 RPC was filed on 01.06.2002 by the respondent before the Court of Chief Judicial

Magistrate, Jammu, who transferred the same to the court of learned Sub Judge, Jammu for disposal under law. The allegations leveled in the

complaint are that the parents of the complainant/respondent had given sufficient dowry at the time of marriage and also at various occasions even

after the marriage. The petitioneraccused and his family members always harassed the respondentcomplainant on account of insufficient dowry and

when demand of dowry was not fully met, the complainant was turned out of matrimonial home by the petitioneraccused and the property given in

dowry by the parents of the complainant was retained by the petitioneraccused. It is further averred in the complaint that the accused person in

making use of the dowry articles of the complainant is tantamount to misappropriation.

The matter was considered by the trial court for the purposes of framing charges against the petitioneraccused. It was contended before the

learned trial court that no offence under section 406 RPC is made out against the petitioneraccused while scanning through the contents of the

complaint. The learned trial court rejected the plea of the petitioner and framed the charges against him.

I have heard learned counsel for the parties and perused the record.

A bare reading of complaint would reveal that the ""property was given by the parents of the complainant as dowry as demanded by the parents

of the petitioner and petitioner himself. The petitioner by misappropriating the same has committed criminal breach of trust which is defined under

section 405 RPC and is reproduced 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 willfully suffers any

other person so to do, commits ""criminal breach of trust"".

The ingredients of section 405 RPC are that the property must be entrusted to any person who misappropriates or converts to his own use. The

expression ""entrustment"" carries with it implies that the person handing over any property or on whose behalf that property is handed over to

another, continues to be its owner. So the important ingredient of this section is that a person, who hands over the property or entrusts the same to

somebody, enjoys the ownership of that property. Let us examine as to whether the case under section 406 RPC is made out in the present

petition.

The case of the complainant is that the dowry was demanded by the petitioner and in pursuance to that the same was handed over to the

petitioner and his family. There are two perspectives in this case; firstly, if it is a case of dowry, whether it can be said that the ownership continues

to remain with the respondent; secondly, if it is a case of stridhan, in that case it is presumed that the ownership is with the respondentwife. The

dowry has been defined under the Dowry Restraint Act, 1960, which reads as under:

Dowry means any property transferred or agreed to be transferred as a part of the contract of any betrothal, marriage, any prebetrohal,

postmarriage ceremony such as Thaka, Rophera/Duphera, Phirsal, Phersozen and the like by one party to the betrothal, marriage any prebetrothal,

postmarriage ceremony such as Thaka, Rophera/Duphera, Phirsal, Phersozen and the like or the father, mother, or guardian of that party to the

other party to the marriage or to the father, mother or guardian if the other party, but does not include voluntary marriage gifts such as ornaments to

a bride and dresses to a bridegroom the value of which in aggregate does not exceed two thousand rupees.

The essential ingredient of the dowry is that the property stands transferred to the person to whom it was given. It is a case where proprietorship

of the property given in dowry is transferred to the person who has demanded the dowry. The stridhan means that properties gifted to the bride

before the marriage, at the time of marriage or at the time of giving farewell or thereafter is her absolute property with all rights to dispose of at her

own pleasure. It is the volunteer act on the part of the donor to gift the property. In case of dowry, it is under duress or demand that the property

is transferred to the person who demands the same. It is in this backdrop, the present controversy has to be examined.

The complainant has nowhere stated that the property has been gifted to her as stridhan. All that has been stated in the complaint is that the

dowry was demanded by the petitioner and his family, as a result of which the said property was transferred in their names. The cognizance taken

by the Magistrate on the basis of this complaint was not justified. It is a positive case of the complainant that the dowry was demanded by the

petitioner which was given to him. So in essence it implies that the property given in dowry stands transferred in the name of the person to whom it

was given. The ownership of the said articles stands transferred in the name of the person to whom the dowry is given. Since the essential feature

of the criminal breach of trust that the ownership of the property remains with the person who entrusts the same to any person, as such, I do not

find that the ingredients of sec. 406 RPC are attracted in the present case. The learned trial court has placed reliance on the judgment of Supreme

Court which states that in case of stridhan, the ownership always remains with the wife even though the property is jointly enjoyed by the husband

and wife. In the present case, this has not been pleaded by the complainant. She has categorically stated that the property was given as dowry

which connotes the difference from stridhan.

In the aforesaid backdrop, this petition is allowed and order of learned trial court is set aside. Consequently, the complaint filed by the

complainantrespondent is dismissed.

Disposed of along with connected CMP(s), if any. Registry is directed to transmit the record to the court concerned along with a copy of this

order.