Neelam vs Pawan Kumar and Others

V.S. Aggarwal, J.—This is a revision petition filed by Smt. Neelam against the judgment passed by the learned Additional Sessions Judge, Jalandhar on 6th October, 1994.

The sumumbonum of the case is that the petitioner was married to Krishan Gopal sometime in the year 1989. The husband of the petitioner was not interested in the birth of a female child and pelvis scan of the petitioner was effected, it was found that the fatus was female. Petitioner refused to get it aborted.

Her husband was already aggressive and greedy. After the birth of the female child, he became more ruthless and aggressive. All the gold ornaments of the petitioner were snatched by her husband and were handed over to his parents. The dowry articles were entrusted to the accused respondents which were alleged to have been misappropriated.

After the preliminary evidence was recorded, learned Additional Sessions Judge vide order dated 18th July, 1992 summoned the respondents as accused with respect to the offence punishable u/s 406 of the Indian Penal Code. The complaint, however, was dismissed qua the offence punishable u/s 498-A of the said Code.

Respondents 1 to 3 preferred a revision petition in the Court of the Additional Sessions Judge. Vide the impugned judgment, the learned Additional Sessions Judge accepted the revision petition and held that as against the respondents in this Court, the assertions made were vague and there is nothing to indicate that there was entrustment of the dowry articles to them.

Aggrieved by the said judgment, the present revision petition has been filed.

The learned Counsel for the petitioner urged that the findings of the learned Additional Sessions Judge cannot be sustained because in view of the learned Counsel, necessary ingredients with respect to the offence punishable u/s 406 I.P.C. had been pleaded and evidence for purposes of the impugned order was available on the record.

Reliance strongly has been placed on the decision of the Supreme Court in the case of Pratibha Rani Vs. Suraj Kumar and Another, . In the cited decision, the accused persons included the father of the husband of the complainant, his sons and son-in-law. They had all actively participated in the marriage of the complainant and alleged to have demanded dowry. The dowry articles worth Rs. 60,000/-were given, which was taken into possession by the accused persons, it was followed by harassment of the complainant therein. The Supreme Court narrated the important portion of the complaint pertaining to facts and they are quoted below for the sake of the facility:

"(1) That all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage.

(2) That parents of the appellant spent Rs. 75,000/- on the marriage and dowry articles worth Rs. 60,000/- (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused Nos. 1 to 6 at the time of the Doli on 5.2.1992.

(3) That the articles entrusted to the accused were meant for the exclusive use of the appellant.

(4) That the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala fide retained by the accused in order to obtain a wrongful gain to themselves and wrongful loss to the appellant.

(5) That on 11.12.1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the Stridhan of the appellant."

The Supreme Court thereupon concluded as under :

"Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in the complaint constitute an offence u/s 406 I.P.C. and the appellant cannot be denied the right to prove her case at the trial by pre-empting it at the very behest by the order passed by the High Court."

The assertions made in the complaint in the present case are basically in paragraph 3 and the same are being reproduced below :

"3. The accused No. 1 snatched all the gold ornaments of the complainant and made over to accused Nos. 3 and 4 given to the complainant at the time of marriage besides the gold ornaments as per, list attached. The parents of the complainant and other relatives gave by way of gift dowry articles including gold and silver ornaments worth Rs. 2,11,300/- and other house-hold articles. The detailed list of said dowry articles is attached herewith. All the dowry articles ornaments were entrusted to the accused persons which were the Istridhan of the complainant and were given for the use of the complainant which were taken possession of by all the accused on 25.6.1989 the day the marriage was solemnised."

The learned Additional Sessions Judge was swayed by the facts that the complainant-petitioner has not proved as to which articles were entrusted to the respondents 1 to 3 and that there were assertions that these respondents had snatched the articles thereupon it was concluded that it was not an entrustment. Indeed one line cannot be read in isolation of the rest. The ornaments are alleged to have been snatched by husband of the petitioner. In addition to that, it has specifically been pleaded that dowry articles worth Rs. 2,11,300/- were given besides other house-hold articles and they were entrusted to the accused persons. The words are clear and meaning unambiguous. Specific allegations had been made. In that event, it is clear that the present case fall very close to the facts in the case of Pratibha Rani (supra). For the present it cannot be held that no prima facie case is made against the respondents 1 to 3 for the said offence. The judgment of the learned Additional Sessions Judge, therefore, in this regard cannot be sustained. For these reasons, I accept this revision petition and set aside the order passed by the learned Additional Sessions Judge, Jalandhar. Parties are directed to appear before the learned Trial Court on 13.2.1995.

Learned Counsel for the respondents in that event pointed out that personal appearance of his clients may be examined. The petitioner''s Counsel stated at the Bar that he will not oppose such an application. Subject to the aforesaid, it is left to the discretion of the learned Trial of Court pass an appropriate order if respondents move an application seeking exemption from personal appearance during the course of the trial.