Sachin Gupta and Others vs Smt. Deepti Gupta

Sujoy Paul, J.—This petition filed under Article 226 of the Constitution of India challenges the complaint preferred by respondent (Annexure P/2) and notice dated 10.03.2011 issued in criminal case No. 1236/2010 (Annexure P/1). The said notice is issued by Judicial Magistrate First Class, Gwalior. Brief facts necessary for adjudication of this matter are as under:--

(1) The petitioner No. 1 is husband of respondent, whereas petitioners No. 2, 3 & 4 are father-in-law, mother-in-law and married sister-in-law of the respondent.

(2) The petitioner No. 1 is a businessman and is engaged in import-export business of garments since 2006. The marriage of petitioner No. 1 and respondent was solmenized on 29.11.2008 at Gwalior. After marriage, the respondent came to her in-laws house and continued her further study of MD. It is contended that respondent could not get admission in MD in the counseling held in June, 2009. Parents of respondent No. 1 created pressure on the petitioner for getting respondent admitted into a private medical college. The petitioner explained that he is unable to pay donation for such colleges, which is between Rs. 60/70 lakhs.

(3) It is the case of the petitioners that the said stand of the petitioners was not welcomed by the respondent and her family members. It is contended that on 24.08.2009 respondent visited her maternal house in relation to some function and carried along with all "Stridhan". She did not return thereafter. The petitioners further contended that on request made telephonically by the petitioners, relatives of the respondent insulted the petitioner. It is contended that unless the petitioners pay the donation for private MD course, the respondent showed her inability to go back to the husband''s house.

(4) In this factual back drop, it is contended that the father and mother of the respondent lodged complaint on 31.08.2009 in Women Police Station, Padav, Gwalior. The allegations of cruelty and taking dowry were made against the petitioners. The efforts of conciliation could not fetch any result. Father of the respondent lodged another FIR with Police Station Madhav Ganj as FIR No. 364/2009 u/s 498-A/323, 506 IPC. These complaints are filed as Annexure P/3 and Annexure P/4. It is stated that after completing investigation, police filed prosecution before JMFC, Gwalior on 29.09.2009 against the petitioner No. 1 and 3 which is registered as case No. 16932/2009. These proceedings are still pending and petitioners No. 1 & 3 are presently on bail. Charge sheet is also filed in the said matter which is Annexure P/5.

(5) It is further stated that the petitioner No. 1 filed an application u/s 9 of Hindu Marriage Act for reconstitution of conjugal rights which is registered as Case No. 472-A/2009 which is pending before the family Court. The respondent, in turn, filed an application u/s 24 of the said act for divorce which is registered as case No. 610-A/2009.

It is stated by the petitioners that during the pendency of aforesaid criminal case before JMFC and cases before family Court stated above, the respondent with a view of harass the petitioners and mount pressure on them filed complain Annexure P/2 before JMFC, Gwalior. It is contended that respondent requested petitioners No. 2, 3 & 4 to return all her ornaments which were given to her by her parents. But the petitioners have denied to return the same.

The Judicial Magistrate First Class took cognizance of the said complaint and registered it as crime No. 1236/2010 and issued notice dated 10.03.2011 to petitioners to appear before the Court. This complain and notice issued thereupon is under challenge in this petition.

Shri Santosh Agarwal, learned counsel for the petitioners submits that as per Section 27 of Hindu Marriage Act, 1955, the present matter/complaint amounts to civil dispute and by no stretch of imagination it can be subject matter of a criminal complaint. He further contends that even if the allegations mentioned in the complaint are accepted/admitted on its face value, no offence u/s 406, IPC, is made out. In other words, it is contended that even if the allegations mentioned in the complaint are treated to be admitted, it does not fall within the ambit, scope and definition of section 406 IPC. In support of his contention, he relied on Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, . It is contended that this Court can set aside a frivolous complaint or a prosecution which has no legs to stand.

Shri Harish Dixit, learned counsel for the respondent, supported the impugned order/notice and submits that at this stage no interference is warranted. He submits that the case of "criminal breach of trust" is made out before the court below and, therefore, the court below has not erred in taking cognizance of it and issuing the notice. He also relied on certain judgments.

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

In the aforesaid factual backdrop, it is to be seen primarily whether the complaint (Annexure P/2) filed u/s 406 IPC was tenable. Twin grounds of attack on this, as stated above, are--(i) the allegations even if admitted do not constitute an offence u/s 406 IPC, and, (ii) the allegations even if admitted do not fall within the ambit of "criminal breach of trust".

In the opinion of this Court, this question is no more res integra. In Pratibha Rani Vs. Suraj Kumar and Another, the Apex Court had an occasion to consider this aspect in the light of section 27 of Hindu Marriage Act and section 14 of Hindu Succession Act, 1956. The Apex Court opined that the view that by reason of Section 27 of the Hindu Marriage Act and Section 14 of the Hindu Succession Act, the concept of stridhan property of a woman was completely abolished or that a remedy under the criminal law for breach of trust is taken away, is legally unsustainable. These two sections only provide that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. Thus Section 27 of the Marriage Act merely provides an alternate remedy to the wife and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any text book of the sastric law of the Hindus that the two Acts take away the stridhan right of a woman; at the most these Acts merely modify the concept of stridhan. It is further held by the Apex Court that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. In the case of stridhan property also, the title of which always remains with the wife, if the husband or any other member of his family who are in possession of such property, dishonestly misappropriate or refuse to return the same, they will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406 IPC.

The Apex Court disproved the stand and view that as remedy under civil law was available, Section 406 IPC was inapplicable. A criminal prosecution would not be completely barred merely because a civil remedy is available. Criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. If the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would not bar prosecution u/s 406 IPC and would not render the ingredients of Section 405 IPC nugatory or abortive.

The Apex Court in Pritibha Rani (supra) opined that if no offence is committed on the allegation and the ingredients of Sections 405 and 406 IPC are not made out, certainly High Court may be justified in quashing the proceedings u/s 482 Cr.P.C. or under Article 226 of the Constitution. But, such exercise should be sparingly made with due care and caution. The correctness of allegations cannot be gone into at this stage.

Thus, on the basis of aforesaid judgment of Supreme Court, it is clear that the contention of Shri Agarwal that the allegations are purely civil in nature and amount to civil dispute cannot be accepted. Apart from this, this Court in 1987 (3) Crimes 846 (Feroza Mahboob vs. Qamar Ali and another) opined that if on the basis of allegation a cognizable offence has been committed, the complaint cannot be quashed. This Court considered the ratio of Pratibha Rani (supra). In Subhash Joshi and another vs. Anita Joshi and another (Misc. Cri. Case No. 844/2007, decided on 21.2.2011), this Court held that the question of criminal breach of trust arising out of dowry articles can be subject matter of a criminal complaint. In Rashmi Kumar (Smt) Vs. Mahesh Kumar Bhada, , the Apex Court held that wife is absolute owner of stridhan property. The husband has no control over her stridhan property. Husband may use it during the time of his distress but nonetheless has a moral obligation to restore the same or its value to the wife. Any misappropriation of such property will make the husband liable for prosecution under Sections 405 and 406, IPC.

Thus, the simple reading of judgments of Pratibha Rani, Feroza Mahboob and Rashmi Kumar (supra) makes it clear that the present allegations made against the petitioner if accepted and established, will bring it within the ambit of "criminal breach of trust" and Sections 405 and 406 IPC. Thus, I am unable to accept the contention of the petitioner that even if allegations are admitted, it does not constitute an offence under IPC. Apart from this, it is clear that the allegations so mentioned in the complaint are within the purview of criminal breach of trust. Thus, this contention cannot also be accepted.

In catena of judgments, it has been held that correctness of allegations mentioned in the FIR or complaint cannot be examined or gone into by the writ court. The truthfulness, genuineness and correctness can be examined by a court of competent jurisdiction. This is also settled that subject matter of a dispute may result into civil and criminal consequence. Merely because subject matter of one dispute has also a civil angle, will not preclude the parties to raise and base their case on a criminal aspect. In Mahesh Choudhary Vs. State of Rajasthan and Another, the Apex Court opined that although allegations contained in the complaint may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or the complaint fulfill the ingredients of the offences alleged against the accused. It was further held that ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the jurisdiction. The High Court at this stage would not ordinarily enter into a disputed question of fact. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. The Bombay High Court in Satishkumar Jain Vs. Krishnagopal Sarda, held as under:- 17. The learned advocate for the applicant further submitted that the non-applicant has also filed a civil suit and hence the non-applicant can not proceed with the present complaint and it should be quashed. It is not possible to accept this contention for the simple reason that the civil suit is for enforcing the civil liability while the prosecution is for punishment as the applicant is guilty of criminal offence. The conviction of the applicant in the present proceeding cannot enable the non-applicant to recover his amount. He can do this by filing the civil suit. Filing of Civil suit and criminal proceedings are not alternate remedies available to the non-applicant. They create different types of rights in the non-applicant-complainant and he can legally proceed with both. Hence, I reject this contention.

Considering the aforesaid, in the opinion of this Court, there is no scope for interference in this matter. Petition is meritless and is hereby dismissed. It is made clear that this Court has not expressed any opinion on the merits of the case.