LAW FOR ALL

Hindu Law : “Stridhana”-Meaning and nature of-Held : Wife absolute owner of stridhana property-Not a joint property of wife and husband. Penal Code, 1860 : Sections 405 and 406. “Stridhana” property-Entrustment of-To husband or other member of family- Dishonest misappropriation or conversion-To own use-Of that property by husband or other member-Held: By itself amounted to criminal breach of trust-No further agreement that such property was given to husband or other member of family need be established-When wife left matrimonial home or driven therefrom proof of entrustment of stridhana property depended, upon circumstances of each case-In the circumstances of the case, prima facie entrustment was made out by wife as stridhana properties not returned by her husband. Criminal Procedure Code, 1973 : Section 200. Cognizance of offence-Taking of-Held : Court must consider only averments made in complaint or charge-sheet-Not open for court to sift and appreciate evidence at that stage. Sections 468 and 472-Limitation-Offence under S.406 IPC-Aver-ment in complaint-That complaint demanded from accused return of her stridhana properties on 5-12-1987-Accused did not return said stridhana properties- Complaint filed on 10-9-1990-Held : Complaint was not time barred-In view of this finding question whether it was a continuing offence not decided. Section 482-Criminal Proceedings-Quashing of-Power of High Court-Held : Should be sparingly and cautiously exercised to prevent miscarriage of justice or when it would tantamount to abuse of process of court- Constitution of India, 1950, Art. 226. Words and Phrases : “Stridhana”-Meaning of-In the context of Hindu Law. “Entrustment”-Meaning of-In the context of S.405 of the Indian Penal Code, 1860. The appellant was married to the respondent according to the Hindu rites and rituals and had three children from the wedlock. The appellant-wife was given jewellery, i.e., gold and silver ornaments and other household goods and also cash by the appellant’s parents, brothers and other relatives at different ceremonies prior to the appellant’s marriage and after the marriage at the time of bidai (farewell). The appellant- wife had entrusted all her stridhana properties and household goods to the respondent-husband for safe custody. The appellant was treated with cruelty in the matrimonial home and ultimately the appellant and the children were thrown out from the matrimonial home without getting an opportunity to take with her stridhana properties and household goods. The appellant filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Thereafter, the appellant requested the respondent-husband to restitute the appellant into the con-jugal society along with the children. The respondent promised to do so provided the appellant withdrew the application for restitution of conjugal rights, which the appellant did. Even after withdrawing the application the respondent did not take the appellant into the conjugal society. The appellant then made a demand for return of the stridhana properties during October 1986 but the respondent refused to do so. The appellant made a demand on 5-12-1987 to return her stridhana properties but the respondent refused to do so. Consequently, the appellant filed a private complaint on 10- 9-1990 under Section 406 of the Indian Penal Code, 1860. After recording the statement of the appellant the Magistrate took cognizance of the offence under Section 200 of the Code. In the meanwhile the respondent filed an application under Section 482 of the Code in the High Court to quash the proceedings. The High Court quashed the proceedings on the ground that it was barred by limitation. Hence this appeal. On behalf of the appellant it was contended that the offence under Section 406 IPC was a continuing offence and hence cause of action arose every day subsequent to the refusal and, therefore, the complaint was not barred by limitation. On behalf of the respondent it was contended that a clear demand for return of stridhana properties was made in October 1986 when the respondent had refused to return the same; that the complaint was filed only on 10-9-1990 i.e., after a delay of 11 months from the expiry of prescribed limitation; and that since no application for condonation of delay was filed the High Court was right in quashing the proceeding as being barred by limitation. Allowing the appeal, this Court HELD: 1.1. Properties gifted to the bride 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. The husband has no control over her stridhana property. Husband may use it during the time of his distress but nonethe- less 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. [3S9-D-F] Venkatareddy v. Hanumant, (1933) 57 Bom 85; Muthukaruppa v. Sellathammal, (1916) 39 Mad. 298; Venkata Rama v. Venkata Suriya, (1880) 2 Mad 333 and Salemma v. Lutchmana, (1898) 21 Mad 100, referred to. Justice Alladi Kuppuswami : “Mayne’s Hindu Law & Usage” 13th Edn., Vivadhachintamani vide p 259, Jha HLS II, 529-31, Apararka, 21 MLJ (Jour) 428, Katyayna cited in Mit., II, Xi, 5, Smiritichandrika, IX, ii, 4-5 May., X, 8 etc. and N.R. Raghavachariar: Hindu Law-Principles and Precedents”, (8th Edn.), referred to. 1.2. When the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or wilfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust, as defined in Section 405 and punishable under Section 406 of the Indian Penal Code, 1960 with sentence for a period upto three years or with fine or with both, are : (i) entrusting any person with property or with any dominion over property; (ii) the person entrusted dishonestly misap-propriating or converting to his own use that property or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. 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. Entrust-ment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all it 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. [360-B-G] 2. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out there-from. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. [361-C-F] Pratibha Rani v. Suraj Kumar & Anr., [1985] 2 SCC 370, affirmed. Velji Raghavji Patel v. State of Maharashtra, [1965] 2 SCR 429, referred to. 3.1. At the time taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173 of the Criminal Procedure Code, 1973, as the case may be. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, processes would be issued to the respondent to take further steps in the matter. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cog-nizance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. [362-E; 363-A] State of Bihar v. Rajendra Agrawalla, [1996] 8 SCC 164, relied on. 3.2. The appellant has averred in her complaint under Section 206 IPC that she demanded from the respondent return of her stridhana properties on 5-12-1987 and the respondent flatly refused to return the stridhana properties of the complainant-wife. Therefore, the complaint filed on 10-9-1990 is not time barred. In view of this finding that question whether it is continuing offence and limitation began to run everyday loses its relevance. [363-D-E; 364-B-C] Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy & Ors., [1993] 3 SCC 4 and Balram Singh v. Sukhwant Kaur, (1992) Crl. LJ. 792 (P&H), referred to. 4. The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loathe and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceed-ing against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the Court [364-C-G] State of H.P. v. Shri Pirthi Chand & Anr. JT (1995) 9 411; State of U.P. v. O.P. Sharma [1996] 7 SCC 705; State of Haryana & Ors. v. Bhajan Lal & Ors. [1992] Supp. 1 SCC 335 and G.L. Didwania & Anr. v. Income Tax Officer & Anr. [1995] Supp. SCC 25, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 645 of 1993. , 1996(10 )Suppl.SCR 347, 1997( 2 )SCC 397, 1996( 9 )SCALE388 , 1996(11 )JT 175