IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Crl. Leave Petition 28/2014 Smt. Rekha Bhargava, Wife of Sri Amrit Bhargava, D/o. Sri Satya Narayan Bhargava, Resident of Sani Mandir, Fancy Bazar, Guwahati, Police Station Panbazar, District Kamrup (Metro), Assam. -Versus-..Petitioner 1. Sri Amrit Bhargava, Son of Sri Binod Bhargava, Resident of Khalpara, Agarwan Road, Police Station Siliguri, District Darjeeling, West Bengal. 2. The State of Assam.Respondents For the petitioners : Mr. Y.S. Mannan, Adv. For the Respondents : Mr. P.K. Kalita, Adv. Mr. G.N. Kakati, Adv. Mr. N. Das, Adv. Mr. D. Das, Addl. PP, Assam. Crl. LP 28 of 2014-oral dt. 31/03/15 Page 1 of 7
BCEFORE THE HON BLE MR. JUSTICE B.K. SHARMA Date of hearing & Judgement: 31/03/2015 JUDGEMENT AND ORDER (ORAL) 1. Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. P.K. Kalita, learned counsel along with Mr. G. Kakati and Mr. N. Das, learned counsel appearing for the respondent no.1. I have also heard Mr. D. Das, learned Additional PP, Assam representing the respondent No. 2 i.e. the State of Assam. 2. By means of this petition, the complainant/petitioner has prayed for leave to appeal against the judgement dated 26/05/2014 of the learned SDJM-I(S), Kamrup, Guwahati, passed in case NO. 279(C)/2010. By the said judgement the accused respondent No.1 has been acquitted of the charge under section 406 IPC. According to Mr. Mannan, learned counsel for the petitioner/complainant, there is error of judgement in dismissing the complainant towards acquittal of the accused respondent No.1. On the other hand, Mr. Kalita, learned counsel representing the said respondent, submits that the complainant having failed to make out a prima facie case against the accused respondent NO.1, the learned Crl. LP 28 of 2014-oral dt. 31/03/15 Page 2 of 7
trial Court has rightly rejected the complaint and acquitted the accused respondent No.1. 3. Case No. 279 (C)/20o10 was registered on the basis of the complaint filed by the appellant/petitioner. The prayer made in the complaint petition was to take cognizance of the offence under Section 406 IPC by issuing process against the accused respondent No.1. As stated in the said complaint petition, marriage was solemnized between the parties i.e. the complainant and the accused respondent No.1 on 04/05/2013 and out of the said wedlock, twin babies (one male and one female) were born on 10/03/2004. At the time of filing the complaint, they were six years old. Along with the complaint petition, a list of material was enclosed stating that the said materials were given to the complainant at the time of her marriage. 4. As stated in the said complaint petition, differences arose between the parties and eventually the complainant was forced to leave the house of her husband i.e. the accused respondent No.1 in July, 2007 and thereafter she started living with her parents. As further stated in the complaint petition, on the basis of the FIR lodged by the complainant, all Women Police Station Case No. 83/2008 was registered under Section 498(A)/120(B) IPC against the accused respondent No.1 and others. In the said case, he was arrested and was sent to judicial Crl. LP 28 of 2014-oral dt. 31/03/15 Page 3 of 7
custody. However, later on, he was released on bail. Referring to the Annexure-II agreement, the complainant alleged that as per the said agreement, the accused respondent No.1 was to return the stridhan to her but on approach he declined to do so. As stated in the complaint, the accused is now a resident of Siliguri town in the State of West Bengal. 5. The learned trial Court on receipt of the complaint and after observing the due formalities, called upon the accused respondent No.1 to face the trial. Charge having been framed under Section 406 IPC, the same was read over and explained to him to which he pleaded not guilty and claimed to be tried. 6. During trial, the prosecution examined 3 (three) witnesses which included the complainant (PW-1) and her father (PW-3). PW-2 is an independent witness. The statement of the accused was also recorded under Section 313 Cr.P.C. The learned trial Court raising the following points for determination, having answered the same in the negative towards acquittal of the accused respondent No.1 vide the impugned judgement referred to above, the complainant has filed an appeal against the same and vide this petition, has prayed for grant of leave to do so. Whether the accused being entrusted with the stridhan articles of the complainant, dishonestly Crl. LP 28 of 2014-oral dt. 31/03/15 Page 4 of 7
misappropriated the same and converted them to his own use? 7. I have given my anxious consideration to the submissions made by the learned counsel for the parties and also perused the entire materials on record. The petitioner has brought on record the evidence that was adduced by the complainant through PW-1, PW-2 and PW-3. To constitute the offence, following ingredients will have to be fulfilled :- 405. Criminal breach of trust. 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 wilfully suffers any other person so to do, commits criminal breach of trust. 8. As discussed in Bhaskar Lal Sharma and another Vs. Monics reported in (2009) 10 SCC 604, the offence of criminal breach of trust as defined in section 405 IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any Crl. LP 28 of 2014-oral dt. 31/03/15 Page 5 of 7
direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, expressed or implied, made by him touching such discharge, or willfully suffers any other persons so to do. 9. In the instant case, it is in the evidence of PW-1 that she was not aware as to what was written in the complaint petition. She also admitted that the father-in-law of the accused respondent No.1 had served a notice requiring the complainant to take back her belongings from Siliguri. She admitted that she did not go to Siliguri on receipt of the said notice. PW-1 also admitted in her deposition that it was her apprehension that the accused respondent No.1 would misuse her belongings/materials which he claimed to be stridhan. 10. PW-2 in his deposition stated that he did not remember the date on which he had gone to Siliguri along with the complainant. He also admitted that when they had visited the resident of the accused respondent No.1 at Siliguri, he was not present. PW-3 while stating that he had gone to Siliguri on receipt of the notice from the father of the accused respondent No.1, however, admitted that he did not remember the date on which he had gone to Siliguri. He also admitted that he did not meet the accused respondent No.1 and also that there was no discussion with him. Crl. LP 28 of 2014-oral dt. 31/03/15 Page 6 of 7
11. It is in the aforesaid circumstances, the learned trial court on a combined reading of the testimonies of the PWs has held that the ingredients towards commission of the offence punishable under Section 406 IPC are not present in the instant case. In the evidence, there is no whisper that the accused had converted the articles to his own use. 12. In view of the above, I do not find any infirmity in the impugned judgement dated 26/05/2014. Accordingly, this petition seeking leave to appeal against the said judgement stands rejected. JUDGE Sukhamay Crl. LP 28 of 2014-oral dt. 31/03/15 Page 7 of 7