Harjinder Kaur vs Sh.Nachhattar Singh and anr.

A.S. Nehra, J.

This revision petition is directed against the order dated 14th December, 1991 passed by the SubDivisional Judicial Magistrate, Khanna, by which the complaint filed by the petitioner was dismissed and the accused were discharged.

Briefly stated the facts of the case are that the petitioner complainant Smt. Harjinder Kaur brought complaint under Sections 4, 6 and 7 of the Dowry Prohibition Act read with Sections 406, 498A, and 120B Indian Penal code alleging that she was married with accused Nachhattar Singh on 1151986 according to Hindu rites and customs. At the time of marriage of the complainant, articles of dowry as mentioned in the list annexure A1 were given by the parents of the complainant as dowry and the same were entrusted to accused Nachhattar Singh, Kartar Singh and Nasib Kaur last two having not been summoned in the complaint, though the complaint was filed against them and the keys were handed over to said Kartar Singh and Nasib Kaur. The articles of dowry are Istridhan of the complaint and the accused are holding the same as trustees but they have not returned the same to the complainant. From the very beginning of the marriage accused illtreated the complainant and gave out that she had brought less dowry and they made demand of more dowry. Many times the complainant was given beatings. In the month of September, 1986 accused Nachhattar Singh got an intimation that the scooter booked by him with M/s. Bedi Electronic and Automobiles near Jagraon Bridge, Ludhiana was to be collected and since then the accused started pressing the complainant to bring more money from her father for the purchase of a scooter. The complainant wrote her plight to her parents vide letter dated 15101986. The complainant communicated the demand of Rs. 20,000/ made by the accused for the purchase of the scooter vide said letter. Joginder Singh maternal uncle of Nasib Singh who also was arrayed as accused and who has not been summoned also pressed the complainant for bringing the amount of Rs. 20,000/ failing which he threatened to get accused Nachhattar Singh remarried. In that way, it is alleged that the accused committed offences under Sections 4, 6 and 7 of the Dowry Prohibition Act read with Sections 406, 498A and 120 Indian Penal Code. It is further averred that in the end of June, 1989 the complainant, her father, her uncle Pritam Singh, Tej Kaur w/o Jai singh, Ajmer singh son of Ganga Singh and Gurnam Singh son of Gokal Singh visited the house of the accused and the complainant in the presence of the said persons asked for the return of the dowry articles, but accused Nachhattar Singh, Kartar Singh and Nasib Kaur refused to return the same. The complainant again demanded the articles of dowry on 1071989 at Khanna when accused Nachhattar Singh accompanied by Kartar Singh and Nasib Kaur had come there to appear in a cae but they refused to deliver back the same and that the accused raised a demand of Rs. 20,000/ in order to rehabilitate the complainant. In this way, it is alleged that the accused in preconcert have committed the offences punishable under Sections 4 and 6 of the Dowry Prohibition Act.

The complainant obtained the permission from the S.D.M. (SDO Civil), Khanna to file complaint against the accused under the Dowry Prohibition Act which was granted on 18101989. Since accused Nachhattar Singh as well as Kartar Singh and Nasib Kaur have allegedly misappropriated the Istridhan of the complainant it is alleged Joginder Singh helped the said accused in the commission of the offence he has also been arrayed as an accused in the complaint.

Harjinder Kaur complainant has examined besides herself as PW1, Ajmer Singh PW2, Gurnam Singh PW3 and Amar Singh PW4.

In order to see whether any offence under Sections 4, 6 and 7 of the Dowry Prohibition Act has been committed by the accused, it is necessary to bear in mind the fact that the marriage of the complaint was solemnised with accused Nachhattar Singh in pursuance of an advertisement having appeared in the newspaper as admitted by complainant Harjinder Kaur PW2. It is also admitted by the complainant that no talk regarding the demand of dowry had taken place prior to the marriage. Similarly, it has been stated by PW4 Amar Singh, father of the complainant that no demand had been raised by the accused before the marriage and he had given dowry of his own accord. Now that question arises as to whether any articles of dowry had been given by the parents of the complainant in her marriage. AI is the list of articles of dowry given to the complainant at the time of her marriage and which she claims as her Istridhan. It is stated by the complainant Harjinder Kaur PW 1 that list A1 was prepared at the time of filling of the complaint and the same was prepared on the basis of a duplicate copy prepared at the time of marriage, but she could not state as to where that duplicate copy is. She further stated that she cannot say with certainty if she can produce the said duplicate copy, which is with her parents. As per statement made by the complainant original and the duplicate copy of the list of articles were prepared at the time of her marriage in her presence by the wife of his brother namely Gurdev Kaur. When PW 4 Amar singh, father of the complianant appeared in the witness box, it was stated by him that the list was prepared at the time of marriage by some of his relations in the presence of the complainant but he could not tell the name of lady who prepared the list. However, the witness had made statement that he has never seen the list of articles of dowry prepared at the time of marriage but he himself never prepared any list of dowry articles. Statement made by the complainant that the list of articles of dowry Ex. A1 was prepared at the time of filing of the complaint on the basis of duplicate copy of the list prepared at the time of marriage is belied when it is stated by PW 4 Amar Singh that he did not have any list prepared at the time of marriage and that the articles mentioned in the list i.e. Ex. A1 have been recorded on account of his memory. It has been stated by PW 4 Gurnam Singh who claims himself to be related to the parties remotely that Amar Singh prepared the list of the articles of dowry. At the other stage the witness has deposed that the list of articles had not been prepared in his presence and that he has not seen the list of articles till the date of his examination. In this way not only that the preparation of the list of articles of dowry is belied, it is also not established on the file that any articles of dowry were ever entrusted by the parents of the complainant to the accused Nachhattar Singh.It is very much alleged in complaint in para No. 2 that the keys of the articles of dowry were handed over to Kartar Singh and Nasib Kaur and it has not been alleged that the same were handed over to accused Nachhattar Singh with any direction that he would hand over the key to the complainant so as to allow her to make use of the articles of dowry. It is specific averment made in the complaint that the articles of dowry, as mentioned in list A1, were given to accused Nachhattar Singh, Kartar Singh and Nasib Kaur. However, it is stated by complainant Harjinder Kaur PW 1 that her motherinlaw Nasib Kaur had not accompanied the marriage party and she came on the next day for the sake of Milni. To the contrary, it is the statement made by Amar Singh PW 4 father of the complainant that Nasib Kaur had come in the marriage party alongwith 2/3 other ladies. As against the allegation made in the complaint, it has been stated by Amar Singh that the keys were entrusted to Nachhattar Singh and Kartar Singh and Nasib Kaur whereas to the contrary complainant Harjinder Kaur PW 1 has made statement that the same were entrusted to accused Nachhattar Singh. When it is not alleged in the complaint that the articles of dowry were entrusted to accused Nachhattar Singh, the complainant could not develop a case different from the one put in the complaint. In the complaint no allegations have been made with reference to the time when the articles of dowry were demanded by the complainant and when the accused refused to return the same. Similarly, the complaint lacks regarding the specifications of the time when the complainant was beaten by the accused. In the same way it is not mentioned in the complaint as to which were the particular items of dowry which were entrusted to a particular accused. In the list Ex. AI there are mentioned as many 81 articles including box, refrigerator, sewing machine, colour T.V., dressing table, dinning set and other big articles which cannot be put in the box. The same would have certainly been entrusted to one or the other person. In case of the articles of dowry which was prepared as per statement made by the complainant, by her parents it is expected that the articles would have certainly been entrusted to one or the other accused, who would have tallied the same with the articles actually delivered but no such allegation is made in the complaint in this regard. Since the evidence led by the complainant regard the giving of articles of dowry is found to be incredible, there is no question on the part of the accused having made further demand of articles of dowry from the complainant or to have harassed her in that regard.

Even if it be said that any articles of dowry ware entrusted by the parents of the complainant either to accused Nachhattar Singh or other accused the complaint is still lacking with regard to material ingredients i.e. dishonest misappropriation of the same. It has nowhere been alleged in the complaint that the articles of dowry have been misappropriated dishonestly by the accused. In order to constitute an offence under Section 406 IPC, it must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. There must be an entrustment and there must be misappropriation or conversion to one''s own use or use in violation of any legal direction or any legal contract. Over and above, the misappropriation or conversion or disposal it must be with dishonest intention. Dishonest intention is a necessary ingredient of offence of criminal breach of trust as defined in Section 405 IPC and misappropriation simplicitor would not attract the provisions of the section. There is no statement made by the complainant of the witnesses examined by her that the articles of dowry have been misappropriated dishonestly by the accused.

As regards the demand of Rs. 20,000/ allegedly made by the accused, it is stated by the complainant Harjinder Kaur PW 1 that in September, 1988 her husband got the draw/allotment order regarding the scooter in his favour from the concerned company, copy of endorsement in this regard being mark `A''. At this her husband is stated to have made demand of Rs. 20,000/ from her so as to purchase the scooter and at this she addressed mail to her father. The complainant has not got proved endorsement mark `A'' allegedly got by her husband from M/s Bedi Electronics and Automobiles, near Jargon Bridge, Ludhiana from the dealer and in its absence it cannot be said whether actually any delivery of scooter was to be made in favour of the accused. Again it is not alleged in the complaint as to when and under what circumstances the complainant had left her matrimonial home, in the absence of which Ex. A2 copy of the letter written by the complainant on 15101986 from Ludhiana cannot be appreciated so as to say that the same had been written by the complainant while residing in the house of the accused. A perusal of mark A would go to show that it contains the particulars regarding the delivery of one scooter hero Honda booked by Nachhattar Singh son of Kartar Singh and delivery in respect of which was received on 14111986 vide bill No. 4896 dated 14111986. Even the chassis Number of the scooter, engine number of the scooter and price of Rs. 15,400/ have been mentioned in the same. Unless and until it is shown by the complainant that at the time accused nachhattar Singh got intimation regarding the allotment of scooter made in his favour she was residing in the house of accused, this version of the complainant cannot be accepted. It has been stated by Amar Singh PW 4, father of the complainant'' that Nachhattar Singh had told them that the delivery of scooter was due and this fact was disclosed by him at his residence when he visited him accompanied by Gurnam Singh and that at the time Nachhattar Singh had not demanded the amount of Rs. 20,000/. The witness stated that he does not know if Nachhattar Singh had purchased the scooter or not. It is admitted by complainant Harjinder Kaur PW 1 that at the time of her marriage her husband was already having a scooter although in the same breath she would depose that the same was held by her fatherinlaw. It is in the statement made by the complainant that talk had taken place regarding the demand of Rs. 20,000/ in the compound in July, 1989, but on the other hand she would state she has got it recorded in her previous statement dated 26121989 that demand of Rs. 20,000/ was made by Nachhattar Singh alone. I have discussed earlier that father of the complainant, namely, Amar Singh has made statement that accused had not made demand of amount of Rs. 20,000/ from him when he visited him accompanied by Gurnam Singh at his residence. PW3 Gurnam Singh on the other hand has given a different version when he stated that joginder Singh maternal uncle of nachhattar Singh demanded Rs. 20,000/ who had threatened that in case of failure to meet with the said demand Nachhattar Singh will be married again with some other girl. He is silent with regard to the demand of Rs. 20,000/ having been made by the accused for the purchase of the scooter. It is also important to note that the demand of Rs. 20,000/ allegedly having been made by the accused for purchasing a scooter also does not find mention in the copy of the application (Exhibit DA) sent by complainant on 15121987 to the Governor of Punjab. It is merely alleged in para No. 2 of the application that since the time of the marriage accused have been pressing hard the complainant to bring more and more dowry from her parents. It is further averred that many a time they turned her out from the matrimonial home having given beating and having maltreated her. There is not the slightest evidence led by the complainant regarding any beating caused to her by the accused or the complainant having been turned out by the accused. Consequently, it would appear that the evidence led by the complainant does not inspire confidence and is rather found rebutted on the record. Not only that, complainant has not prima facie shown entrustment of the articles of dowry, there is no evidence worth the name regarding the dishonest misappropriation of the same by the accused and also with regard to the demand of Rs. 20,000/ to have been made by the accused.

The petitioner has failed to prove the charge against the accused. Therefore, there is no merit in this revision petition and the same is dismissed.