The instant 482 petition has been filed with a prayer to quash the Criminal Complaint No. 1695 of 1995 pending in the court of VIth Additional Chief Judicial Magistrate, Bareilly (Smt. Rama Agarwal Vs. Rakesh Kumar Agarwal) filed by opposite party no. 2 on 30.11.1995, under Sections 406 and 420 I.P.C. It is further prayed that the entire proceedings may be quashed.
It is borne out from the record that the opposite party no.2 filed a criminal complaint before the Chief Judicial Magistrate, Bareilly against the applicant that she was married with the applicant according to the Hindu custom and rites on 20.9.1991 and at the time of marriage various households items were given but after the marriage the applicant never treated her humanely and in cordial manner instead of tortured her mentally and physically both behaving rudely that she was ousted from her marital home only in clothes on 12.11.1992. Neither the applicant nor his family members called her back nor any maintenance provided hence she had to move a complaint on 30.11.1995 for returning all the goods given at the time of marriage. The opposite party no. 2 had also filed a list of household goods given at the time of marriage along with the complaint. The court below after recording the statements of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C. found prima facie offence under Section 406 I.P.C. is made out against the applicant hence passed the order on 23.2.1996 taking cognizance of the offence fixing 21.3.1996 for his appearance.
The applicant filed the instant petition for quashing the aforesaid proceedings and this court vide order dated 17.1.2000 stayed the proceedings for three months and the stay order extended time to time and on 9.8.2001 the interim order was continued until further orders. In the meantime the State filed the counter affidavit of which a rejoinder affidavit was also filed on behalf of the applicant in the year 2002. Now a supplementary affidavit has been filed on 4.5.2012 taking two grounds for quashing the proceeding, which is absent in the pleadings when the 482 petition was filed.
It is submitted by the learned counsel for the applicant that the proceeding initiated against the applicant is barred by the provision of Section 468 (2) (c) of Criminal Procedure Code. The punishment provided under Section 406 I.P.C. is three years or fine or both whereas the complaint was filed by the opposite party no. 2 on 30.11.1995 though she was ousted on 12.11.1992, therefore, after the lapse of three years the complaint was filed and the cognizance was taken on 23.2.1996 without passing any speaking order regarding taking of cognizance even after expiry of the period of limitation. Secondly, it has been argued that no offence under Section 406 I.P.C. is made out against the applicant as the property given at the time of marriage belongs "jointly" to husband and wife, therefore, there was no breach of trust bringing any offence under Section 406 I.P.C. The list of articles given at the time of marriage filed along with the affidavit shows that the articles whatsoever was given to the applicant as well as to the wife and as such no offence of criminal breach of trust is made out against him. At the most the opposite party no.2 could have initiated proceedings for recovery under Section 27 of the Hindu Marriage Act and hence the court below had no jurisdiction to take cognizance of the offence. The applicant had instituted a suit of divorce under Section 13 of the Hindu Marriage Act despite sufficient service on the opposite party it was not contested by her and the decree of divorce was passed ex parte on 30.8.1996. She could have claimed under Section 27 of the Hindu Marriage Act in the same proceeding of divorce but the proceeding initiated against him under Section 406 I.P.C. is a misuse of the process of law. In support of his contention the learned counsel for the applicant has relied upon the decision of the Apex Court 1997 (7) SCC page 500 (Bal Krishna Ram Chandra Kadam Vs. Sangeeta Bal Krishna Kadam). The Apex Court has held that even if the decree of divorce has already been passed a separate decree in respect of the property claimed by wife can be passed under Section 27 of the Hindu Marriage Act and has also observed that the expression "at or about the time of marriage" has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their "joint property' implying thereby that the property can be placed to have connection with the marriage. All such property is covered by Section 27 of the Act. It is further argued that the applicant has now been retired from service now aged about 64 years who was an employee in the State Bank of India and he had also undergone open heart surgery in the year 1992. The proceedings have been initiated with mala fide intention hence liable to be quashed.
Learned A.G.A. has supported the order passed by the court below taking cognizance against the applicant and has contended that the articles given at the time of marriage including 'Stridhana", which were not returned by the applicant to the opposite party no. 2. She was ousted from her matrimonial house in single cloth on 12.11.1992 when the opposite party no. 2 demanded from him to return the articles given at the time of marriage it was refused by him and under compelling circumstances the opposite party no. 2 had to file the complaint under Sections 406 and 420 I.P.C. and at time of filing of complaint the list of articles given at the time of marriage was also enclosed. The court below had not found any offence under Section 420 I.P.C. and had taken cognizance only under Section 406 I.P.C. as the applicant had deliberately withheld the property of the wife given at the time of marriage, which prima facie makes out an offence under Section 406 Cr.P.C. The ground of limitation has been taken after the lapse of 20 years to escape from the punishment, the court has discretion to take cognizance even after expiry of period of limitation. The complaint was filed on 30.11.1995 and the cognizance has been taken on 23.2.1996. It is within the discretion of the court below to take cognizance in the interest of justice. The complaint could not be thrown out at threshold merely on the ground of limitation. The applicant cannot derive any benefit that the order taking cognizance is not a speaking order regarding taking cognizance even after expiry of limitation. Section 27 of the Hindu Marriage Act is also not applicable in the present facts and circumstances of the case. The opposite party no.2 had moved an application under Section 125 Cr.P.C. claiming maintenance from the applicant but it was dismissed for want of appearance of the opposite party no. 2. The applicant has abused the process of the court by not appearing before the court below after taking cognizance against him under Section 406 I.P.C. despite bailable warrants were issued on successive dates from 1996 till 6.10.1999 thereafter the instant petition has been filed and succeeded in his attempt in getting an ex parte order whereby the proceeding was stayed by this Hon'ble Court on 12.1.2000 when the order of cognizance was already passed in 1996, therefore, the applicant has not come with clean hands and now the plea taken regarding the maintainability of the complaint as well as taking cognizance after the expiry of period of limitation if accepted would lead great harassment to the opposite party no.2, therefore, the petition lacks merit and deserves to be dismissed with costs.
I have considered the submission of the learned counsel for the parties and have gone through the record. The submission of the learned counsel for the applicant that the cognizance taken by the court below is without jurisdiction as maximum punishment for offence under Section 406 I.P.C. is three years or fine or both whereas the cognizance has been taken after the lapse of three years from the date offence alleged in the complaint is not acceptable. The complaint cannot be said to be barred by limitation as Section 473 Cr.P.C. provides extension of period of limitation in certain cases and reads as under "Notwithstanding anything contained in the foregoing provisions of this Chapter, any court may make cognizance of an offence after the expiry of period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice". Under the present facts and circumstances of the case the court below satisfied itself from the perusal of the complaint, list of documents, statements of the complainant and witnesses to take cognizance in the interest of justice. The complaint could not be thrown out at threshold merely on the ground of limitation. So far as the question that the property given at or about the time of marriage is "joint property" therefore, no offence is made out punishable under Section 406 I.P.C. is not acceptable. In this context the observations of the Apex Court in Rashmi Kumar Vs. Mahesh Kumar Bhada reported in 1997 (Supple). A.C.C. page 30 SC would be relevant;
"(10) It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her Stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her Stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, Stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof."
It was furthermore held:
......The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose, which may not imply the conferment of any proprietary right therein. 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 my view the articles given at the time of marriage including "Stridhana" by the parents of the wife when it is entrusted to the husband or his family members and subsequently misappropriated by them it amounts to criminal breach of trust and all the articles given at the time of marriage is deemed to be given to the husband though it was kept in boxes by the parents of the husband as it is not supposed that all the time the husband will carry all things along with his person. It is pertinent to mention that the proceedings under Section 406 I.P.C. was initiated on 30.11.1995 and the order taking cognizance was passed on 23.2.1996 much prior to the order of divorce Section 27 of the Hindu Marriage Act would not be applicable in the present facts and circumstances of the case as no proceeding is pending under the aforesaid Act. Now after the lapse of 16 years directing the opposite party no. 2 to move application under Section 27 of the Act for claiming the articles would be cumbersome and worthless for her. The property was entrusted to the applicant and when it was demanded and not returned by him prima facie makes out an offence of criminal breach of trust. At this stage it cannot be said that the list of articles filed by the applicant now along with the supplementary affidavit is the same, which was filed by the opposite party no. 2 along with her complaint, which is the subject matter of scrutiny by the trial court. The opposite party no.2 had filed a list along with the complaint giving vivid description of articles which were entrusted to the applicant at the time of marriage who refused to return the same and is now claiming that such property as "joint property." I am constraint to accept as this is all the more factual aspect to be considered by the court below during the evidence adduced in the trial. The trial court will decide the case after recording the evidence of the complainant as well as that of accused and also on the basis of the appreciation of the evidence as per law. The cognizance order cannot be set aside taking the old age of the applicant that he is a sexagenarian In these circumstances the order passed by the court below taking cognizance against the applicant suffers from no error. The petition is devoid of merit and is accordingly dismissed. Interim order is hereby vacated. The court below is directed to proceed with the case in accordance with law.
Order Date :- 1.6.2012 Shahnawaz