Miss Snehlata Tiwari vs Vimuktanand Saraswat and another

R.C. Lahoti, J.

This is a petition u/s 482 Cr.P.C. seeking quashing of an order dated 13-9-1983 passed by Additional Chief Judicial Magistrate, Gwalior where cognizance has been taken against the Petitioner and the non Petitioner No 2 under Sections 406 and 500 I.P.C. The Petitioner also seeks quashing of all the proceedings in the Court below.

In the year 1983, the Petitioner was emyloyed as a Clerk in the Sales-Tax Office at Khandwa She is the daughter of non-Petitioner No. 2 who was serving as A S M., Central Railways, at Khandwa. The complaint filed by non-Petitioner No. 1 alleges that between March and May 1989, his marriage was settled with the Petitioner and betrothal took place on 15-5-1983 at Khandwa where the Petitioner having been seen by the complainant and his relations, the complainant''s sister-in-law decked the Petitioner with a gold chain weighing one and a quarter tola and gold ring weighing half-a-tola. The complainant further alleges that thereafter, the non Petitioner No. 2 came out with a false allegation that the complainant was not earning well bat was indulging into bad habits and hence was not fit to be married with the Petitioner; the promise to marry was breached by the non-Petitioner No. 2. leading to defamation of the complainant; the gold ornaments were refused to be returned though demanded, which amounted to criminal breach of trust by the accused. The complaint was filed on 4-8-1983.

Having examined the complainant and having held an inquiry u/s 202 Cr. P C., the learned Additional Chief Judicial Magistrate, Gwalior took cognizance as aforesaid. Pursuant to the summons issued, the two accused appeared at Gwalior They prayed for exemption from personal appearance for the reasons stated in the application and which can well be understood. However, the complainant vehemently opposed the prayer by submitting that the non-Petitioner No. 2 with his confederates, all anti social elements, theratened the complainant and assaulted him at Gwalior where and when they had came to attent the Court and that the presence of the accused would be required at the hearing for the purpose of identification. The Trial Court heard the parties and granted exemption from personal appearance to the accused persons only for a day, meaning thereby that they where required to be present on the subsequent dates of hearing for which they had already been bound over by persnoal bonds with surety bouds.

A list of witnesses has been filed with the complaint. It appears that the named witnesses are all family members of the complainant meaning thereby that they well knew the accused persons and there was hardly an occasion for insisting on the presence of the accused persons in the name of need for identification. The idea behind appeared to be something different. It is not possible to accept the bonafides of the ground on which the prayer made by the accused persons seeking exemption from personal appearance was opposed. It is also difficult to believe at its face value that the non-Petitioner No. 2, the father, a Government servant serving as A. S. M. accompanied by his daughter, would have indulged into assaulting the complainant and that too in the vicinity of the Court premises.

The short submission made by the learned Counsel for the Petitioner is that the complaint is totally misconceived and amounts to a gross abuse of process of law because, on its face, the complaint and the statements of the witnesses recorded by the trial Court do not make out commission of an offence by the Petitioner and non-Petitioner No 2, even prima facie. At worst, the complaint may give rise to an occasion for civil liability, submits the learned Counsel.

In so far as Section 500 I.P.C. is concerned, the matter need not detain the Court long for there is no innuendo nor any harm intended to the reputation of the complainant. The core of controversy is Section 406 I.P.C. and for that purpose, it would be necessary to examine what constitutes the principal ingredients of an offence of criminal breach of trust and whether they exist even prima facie in the facts and circumstance of the case. That would require a peep into the nature of relationship that had come into existence between the parties.

To amount to criminal breach of trust, there must be an entrustment with property or with dominion or power thereover, and then a misappropriation or conversion to one''s own use by the person to whom it was entrusted and such mis appropriation or conversion must be with a dishonest intention. What is entrustment, came to be examined in Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore-Cochin, . Their Lordships held:

It follows almost axiomatically from this deflation that 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 Som Nath Puri Vs. The State of Rajasthan, , their Lordships held that the entrustment is if the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused; then he can be said to be entrusted with that property.

In The State of Gujarat Vs. Jaswantlal Nathalal, , their Lordships held that not only the person handing over property to another must continue to be its owner but "further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." If the person handing over the property does not retain any right or dominion over it, there is no entrustment within the meaning of Sections 405/406 I.P.C.

In Sardar Singh Vs. State of Haryana, , their Lordships observed that Section 405 I.P.C. requires something much more than a mere failure or omission to return property.

The principles deducible from the abovesaid authorities and relevant for the purpose of the present case are:

(i) To create an entrustment the prosecution must show existence of a fiduciary relationship between the parties where the entrustee must hold the property for the benefit of the person entrusting or for a specified purpose or for dealing in a particular manner,

(ii) The entrustment having come to an end a mere failure or omission to return the property may not amount to criminal breach of trust. There must be a dishonest intention accompanying the act of misappropriation or conversion to ones own use by the entrustee.

Wherever an allegation is made that someone has committed a criminal breach of trust, the Court should always bear in mind the difference between civil and criminal liability (See AIR 1940 Mad 329). A mere breach of contract or a mere failure to return the articles though there may be a liability to do so, would not necessarily amount to criminality. Breach of an obligation may give rise to liability under the civil law but not necessarily under criminal law.

A betrothal is a step towards marriage. Maynes in his celebrated work on "Hindu Law and Usage (12th Edition) observes vide para 11( -

Marriage is not to be confounded with betrothal. The one is a completed transaction; the other is only a contract. A contract to marry will not be specifically enforced and the remedy, if any, is by an action for damages.

Mulla in his work on Hindu Law (15th Edition) vide Para 437 (Page 567) writes-

Betrothal precedes marriage; but unlike marriage it is revocable, so that a girl betrothed to one person may be validly given in marriage to another person though in such a case a suit may be brought for damage against the father or other guardian of the girl who brought about the contract of marriage. Betrothal is no more than a promise to marry.

Raghavachariar- in his Hindu Law: Principles and Precedents (8th Edition) vide Para 41 (Page 37) writes:

41, Ceremonies -The laws of every nation lay down the forms and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the matrimonial bond (Warrender v. Warrender, 2 Clerk and Finnelly, 531). There are really three stages in the ritual of a Hindu Marriage whether in the Brahma form or in the Asura form, and they are, (i) the betrothal, (ii) the formalities including the recital of holy texts before the sacred fire and (ii:) the Saptapatigamana. Of these the betrothal, though in some cases celebrated with much ceremony and ostentation, is only a promise to marry and is revocable.

What would be the nature of transaction and what intention should be attributed to the Plaintiff at the time when the ornaments were decked upon the girl ? Raghavachariar''s Hindu Law (Supra), Paras 470/471 and 480/481 may be read with advantage as under:

Property gifted or bequeathed to a female in her maiden state is her absolute property whether the gift be from relations or strangers (Mitakshara, II-2-30: Venkata v. Venkata, 1 M. 281; Judoonath v. Bussunt, 11 Beng. D R. 286; Dayabhaga Jv-1-20 and her relations, whether father, mother or brothers, have no right over it.

Wedding gifts.-Properties gifted at the time of marriage to the bride, whether by relations or strangers; either Adhyagni or Adhyavahanika, are the bride''s Stridhana.

If a present is given to the girl or to her father for the primary purpose of purchasing a bride or securing the marriage, then it would come within the definition of Sulka; but these same classes of gifts, if not tainted with the idea of purchasing the bride, but given simply as gifts to a prospctive bride, would not fail within the definition of Sulka, but would be ordinary Stridhana descendable to the normal Stridhana heir, or as the amount paid as equivalent of the price of household utensils, ornaments, etc.

481- Ornaments.-Ornaments presented to the bride by her husband or father constitute her Stridhana property (Harikishan Das v. Sundro Bibi) 89 I. C. 424: 1925 Oudh 43. But ornament made over to a girl''s father for the girl at the time of the betrothal do not become the Stridhana of the girl if the marriage does not take place (Chedi Lal v. Jawahir Lal) 491.186: 1927 A. 160.

It follows that a betrothal being a step towards marriage the ornaments presented to the girl are intended to be her Stridhans property. Of course, they acquire such title on marriage being performed. But, in any case, it cannot be said by any stretch of imagination that the intention at that time would have been to bring an ''entrustment'' into existence.

Assuming that the betrothal does not ripe into marriage and the promise to marry is not fulfilled, absolute title in the gifted articles may not vest in the girl but that would be only when the promise is broken and not before. To put it in other words, articles gifted to a girl on the occasion of a betrothal ceremony are intended to be gifts but not absolute gifts in the sense that vesting of title in the girl is liable to be reversed or recalled in the event of promise to marry being breached.

A Division Bench of High Court of Madhya Bharat in Khubchand v. Maniklal AIR 1953 MB. 91 laid down a few principles which may be extracted and reproduced in so far as relevant for the case at hand:-

Under the Hindu Law, betrothal is in the nature of a contract to which the Contract Act applies. A suit for damages for breach of promise of marriage is therefore entertainable.

[ Para 7 ]

The gifts of ornaments and clothes made by A at the time of betrothal or ceremoney preceding the marriage were not absolute gifts and could be claimed back in case of breach of contract of the proposed marriage.

[ Para 9 ]

It is well settled that a breach of promise to marry by girl or his parents gives rise to a cause of action fur recovery of damages governed by the provisions of Contract Act and the value of the articles gifted on the occasion of betrothal shall be one of the factors amongst others relevant for assessment of damages, if the articles are not returned.

The allegations made in the complaint filed by the non-Petitioner No 1 read in the background of the principles of law noticed hereinabove, amount to this much that there was a promise to marry; that pursuant thereto on the occasion of betrothal ceremony, ornaments were gifted to the girl (Petitioner); that there was a breach of promise to marry; and that the articles gifted were not returned though they ought to have been returned. It may be observed that at this stage nobody knows who was to blame for the breach of the promise and as such who would be liable, to whom and in what amount for the damages arising consequent to the breach. Giving maximum latitude to the complainant/non-Petitioner No 1, the allegations made in the complaint and available from the material on record, create a case of liability under the civil law but in any case and by no stretch of imagination, not under the criminal law.

There being no entrustment and no dishonest misappropriation, Sections 405/406 I.P.C. are not attracted at all. It may argued that at least a case u/s 403 I.P.C. was made out. But, this contention too need not hold up the Court for a moment because even there ''dishonesty'' is an essential ingredient of the offence which is neither alleged nor gatherable in the facts of the case.

It has been held in Jiyajeerao Cotton Mills v. M. P. E B 1989 JLJ 66-Para 31 -

The same set of events may give rise at the same time to civil rights as well as to a criminal offence, and it is not correct to suggest that merely because provisions are specifically included in the Act dealing with criminal liability, the civil liability is deemed to have disappeared By way of illustration, a simple case of theft of movable article may be considered. The owner of the property can set the criminal law in motion and at the same time may claim the property or compensation for it under the civil law.

However, the principle would be attracted only if the set of events imports criminality, the intention being sina qua non. If the set of events does not spell criminality on the part of the alleged wrong doers they would be liable only under civil law and setting the criminal law in motion would be an abuse of the process of the Court, liable to be quashed, if necessary, in exercise of inherent jurisdiction of this Court.

In P. Vijayapal Reddy and Others Vs. The State, and Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, , the criminal proceedings were held liable to be quashed on ground of absence of prima facie case even if the complaint allegations were accepted to be correct In Dr. Sharda Prasad Sinha Vs. State of Bihar, , allegations in complaint or charge-sheet did not constitute any offence and the order taking cognizance was held liable to be quashed. Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others, and Sardar Trilok Singh and Others Vs. Satya Deo Tripathi, are authorities for the proposition that when the facts alleged amount only to breach of commitment by a party, the dispute raised would be purely of civil nature and initiation of criminal proceedings would be an abuse of the process of the Court deserving quashing thereof.

Here a Division Bench decision of Calcutta High Court may be noticed which is digested in AIR Manual (4th Edition, 1979-Vol. 28-Page 672-under Section 403, Note 19, pt. 9). The point is noted as under:

Where there is bona fide intention on the part of the accused to give his daughter in marriage to the son of the complainant but the intention is frustrated by a disagreement on some points, a refusal on the part of the accused to return the presents given by the complainant at the time of betrothal ceremony on the ground that the complainant had broken the engagement wronfully does not constitute dishonest misappropriation within the meaning of Section 403. The Civil Court is the proper tribunal for the parties to seek a settlement of their dispute in such a case. (1938) Cal.L.W. 783 (785) (D. B.).

Unfortunately the full report is not available but I find myself in full agreement with the principle propounded and that is why it has been extracted and reproduced hereinabove.

The position would have been quite different if the allegations were that the accused had not bona fide intended the girl to be married with the complainant in which case an offence u/s 420 I.P.C. would have been made out.

There is no manner of doubt that the allegations made in the complaint and even the material gathered by the Trial Court u/s 200/ 202 Cr.P.C. do not even prima facie make out commission of an offence by the Petitioner and the non-Petitioner No, 2. The conduct of the complainant during the proceedings also betrays that the motive behind the filing of the complaint was an oblique one. The complaint is nothing but an abuse of the process of the Court.

The petition is allowed and all the proceedings in the Trial Court against the Petitioner but the non-Petitioner No. 2 are directed to be quashed.