(1) Heard Mr.Hardik A. Dave, learned advocate for the applicants, Ms.Moxa Thakkar, learned Assistant Public Prosecutor for the respondentState and Ms.Falguni D. Trivedi, learned advocate for respondent No.2 original complainant / first informant.
(2) The facts of the case arising out of the present application are as under:
(3) It appears from the record that on 09.12.1997 respondent No.2 married Shri Sandipbhai Kanubhai Jotangia (original accused No.1), son of applicant No.1, brother of applicant No.2 and brotherin law of applicant No.3. That husband of respondent No.2 had joined service on 12.12.1997 with Gujarat Electricity Board (GEB) at Ukai, Dist. Surat where respondent No.2 resided with him. That thereafter husband of respondent No.2 (i.e. original accused No.1) was transferred to Dholka and ultimately he was promoted and posted at Mehsana since 2006.
(4) It is pertinent to note that applicant No.2 married applicant No.3 in the year 2002, both are practicing doctors as of date. That thereafter applicant No.3 was residing with applicant No.1 and applicant No.2 was staying in a Hostel as resident student for further studies of M.D. That because of some differences between the parties i.e. respondent No.2 and her husband, respondent No.2 separated from her husband in 2008 itself.
(5) That respondent No.2 lodged a complaint, which came to be registered with Rajkot Mahila Police Station and subsequently the same came to be transferred to Isanpur Police Station, Ahmedabad and registered as C.R. No.I4 of 2011 for the alleged offences under Sections 498A, 323, 504, 506(2) of the Indian Penal Code, 1860 (IPC) and Sections 6 and 7 of the Dowry Prohibition Act wherein the present applicants were also roped in as accused. It is a matter of record that the present applicants approached this Court by way of filing Criminal Misc. Application No.1088 of 2011 for quashing of the aforesaid F.I.R., which came to be allowed vide judgment and order dated 23.11.2011.
(6) That thereafter the present impugned F.I.R. came to be lodged by respondent No.2 being C.R. No.I243 of 2012 before Isanpur Police Station, Dist Ahmedabad for the alleged offences under Section 406 read with Section 114 of the IPC wherein the present applicants have been arrayed as accused Nos.2 to 4 and hence, the present application.
(7) This Court (Coram: Rajesh H. Shukla, J) vide order dated 22.10.2012 admitted the matter and granted adinterim relief in terms of Paragraph No.8c of the application, which is continued till date.
(8) Mr.Dave, learned advocate for the applicants, has taken this Court to the factual matrix arising out of the present application. It is contended that the present F.I.R. is an afterthought and is filed only with a purpose to harass the present applicants. It is submitted that the said F.I.R. is filed almost after four years from the separation of respondent No.2 with her husband. It is further submitted that the applicants have never stayed with respondent No.2 and her husband and, therefore, the allegations leveled in the impugned F.I.R. does not constitute any offences, much less offences under Sections 406 and 114 of the IPC. It is therefore submitted that this is a fit case where this Court may exercise powers under Section 482 of the Code of Criminal Procedure, 1973 (the Code) and allow the present application by quashing and setting aside the impugned F.I.R.
(9) Per contra Ms.Thakkar, learned Assistant Public Prosecutor for the respondentState has opposed the present application.
(10) Ms.Trivedi, learned advocate for respondent No.2original complainant / first informant, also opposes the application and submits that the allegations make in the F.I.R. constitutes offences under Section 406 read with Section 114 of the IPC. It is further contended that in fact earlier respondent No.2 made an attempt to patchup with the family of the present applicants, however, the same met with filing of a complaint by father of husband of respondent No.2.
No further and/or other contentions are raised by the learned advocates appearing for the parties.
(11) At the outset it is required to be stated that respondent No.2, as stated hereinaboveve, had lodged an F.I.R. firstly before Rajkot Mahila Police Station, which came to be transferred to Isanpur Police Station being C.R. No.I4 of 2011 for the alleged offences under Sections 498A, 323, 504, 506(2) of the IPC and Sections 6 and 7 of the Dowry Prohibition Act, against which Criminal Misc. Application No.1088 of 2011 was filed for quashing of the aforesaid F.I.R., which came to be allowed vide judgment and order dated 23.11.2011 wherein this Court (Coram: M.R.Shah) (in Paragraph No.6) has observed as under:
“ 6. Heard the learned advocates appearing on behalf of the respective parties and considered the impugned FIR as it is. Considering the averments and allegations made in the Complaint against the applicants and treating the same as it is, it appears that as such there are vague and general allegations against the applicants for harassment. It is required to be noted that applicants nos. 1 and 2 are the fatherinlaw and the motherinlaw and applicants nos. 3 and 4 are the brotherinlaw and sisterinlaw, who are right from the very beginning residing separately. It is not in dispute that the husband was serving in Electricity Company and was transferred from place to place and at the time of marriage he was at Ukai and at the time when respondent no. 2 original complainant left the house in the year 2008 he was serving and residing at village Salejada. Thus, it is not in dispute that respondent no. 2original complainant stayed with her husband separately and she has never stayed and/or resided with the applicants. Considering the general and vague allegations in the FIR, prima facie it appears that it cannot be said that the applicants have committed any offence as alleged. It is also required to be noted at this stage that though in the year 2008 when she left the house of her husband at village Salejada there was no reason for her to go to the residence of applicants nos. 1 and 2 for restitution of conjugal rights in the month of April, 2010, which shows the conduct on the part of respondent no. 2 original complainant and, therefore, it prima facie appears that as such on the basis of general and vague allegations made in the FIR, the proceedings against the applicants for the offence alleged under Sections 498A, 323, 504 and 506(2) of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act cannot be continued and to continue such criminal proceedings against the applicants would be harassment to the applicants and it would be abuse of process of law and Court and, therefore, it appears that this is fit case to exercise the powers under Section 482 of the Code of Criminal Procedure.”
(12) In view of the aforesaid observations, it is clearly that respondent No.2original complainant / first informant has left her husband in the year 2008. Even if the impugned F.I.R. is read as it is there is no allegation that the applicants have ever stayed with the original complainant i.e. respondent No.2. As stated hereinabove, earlier respondent No.2 had lodged an F.I.R. before Isanpur Police Station however the facts remains that the said F.I.R. has already been quashed qua the present applicants. No further or other events have occurred which even prima facie involves the applicants in the alleged offences under Sections 406 and 114 of the IPC.
(13) At this stage it would be advantageous to refer to the judgment of this Court in the case of Prakash Ramchandra Barot & Ors. Vs. State of Gujarat & Anr., 2011 (1) GLR 449 wherein this Court while examining the complaint for the alleged offences under the Indian Penal Code, 1860 has observed thus:
“22. I may now consider whether the allegations in the complaint make out a case of 'criminal breach of trust' as defined under Section 405 of IPC. The section reads as follows : "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 willfully suffers any other person so to do, commits 'criminal breach of trust'.”
According to the Section, a 'criminal breach of trust' involves the following ingredients : “(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust."
Taking into consideration the necessary ingredients to constitute an offence of ' criminal breach of trust', no case at all is made out by the first informant. If the dispute relates to the title of the land in question and if two sides claim to be the owner, then there is no question of any entrustment of the property or dominion over the property. It is not even the case of the first informant that the land in question was entrusted to the accused persons and they had dominion over the land and they have dishonestly misappropriated the same or converted it to their own use.
This Court in the aforesaid judgment has also considered the judgment of the Apex Court in Paragraph No.23 and has observed thus:
23. In the case of Onkar Nath Mishra v/s. State (NCT of Delhi), reported in (2008)2 SCC 561, a Bench of two Judges of the Supreme Court observed that two distinct parts were involved in the commission of the offence of criminal breach of trust. The first part consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is the misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. Therefore, in relation to the offence under Section 405 IPC, the first ingredient that needs to be established is “entrustment”. In Common Cause v/s. Union of India, reported in (1999)6 SCC 667, the Supreme Court held that : “... A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.”
(14) Even if the F.I.R. is read as it is the element of entrustment is totally absent and in view of the aforesaid observations made by this Court (in Paragraph No.6 of the earlier petition) clearly establishes the fact that since 2008 respondent No.2 has never stayed with any of the applicants. Similarly, the impugned F.I.R. does not discloses the said fact also. Even if the contention raised by Ms.Trivedi, learned advocate respondent No.2original complainant / first informant is examined that in the year 2008 an attempt was made to reconcile on the contrary clearly establishes the fact that applicants never stayed with respondent No.2.
(15) Prima facie this Court is of the opinion that the impugned F.I.R. does not disclose any offences as alleged against the present applicants. Hence, the proceedings against all the present applicants cannot be continued as continuation of such proceedings would be amount to harassment to the present applicants and would amount to abuse of process of court and law and, therefore, it appears that this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure, 1973.
(16) In view of the above, and the reasons stated hereinabove, the present application is allowed. F.I.R. being C.R. No.I243 of 2012 registered with Isanpur Police Station, Dist Ahmedabad (at ANNEXUREA hereto) is hereby quashed and set aside so far as the present applicants are concerned. It is however made clear that the same shall not be applied to any other accused and the same shall be without prejudice to the rights and contentions of respondent No.2original complainant / first informant and original accused No.1 in the trial, which shall be dealt with in accordance with law and on its own merits.
(17) Rule is made absolute. Direct service is permitted.
Bhavesh* *** Sd/ [R.M.CHHAYA, J ]