(1.) THIS is a petition under Section 482 Cr.P.C. seeking quashing of an order dated 13 -9 -1983 passed by Additional Chief Judicial Magistrate, Gwalior where cognizance has been taken against the Petitioner and the non Petitioner No 2 under Sections 406 and 500 I.P.C. The Petitioner also seeks quashing of all the proceedings in the Court below. In the year 1983, the Petitioner was employed as a Clerk in the Sales -Tax Office at Khandwa She is the daughter of non -Petitioner No. 2 who was serving as A S M., Central Railways, at Khandwa. The complaint filed by non -Petitioner No. 1 alleges that between March and May 1989, his marriage was settled with the Petitioner and betrothal took place on 15 -5 -1983 at Khandwa where the Petitioner having been seen by the complainant and his relations, the complainant's sister -in -law decked the Petitioner with a gold chain weighing one and a quarter tola and gold ring weighing half -a -tola. The complainant further alleges that thereafter, the non Petitioner No. 2 came out with a false allegation that the complainant was not earning well bat was indulging into bad habits and hence was not fit to be married with the Petitioner; the promise to marry was breached by the non -Petitioner No. 2. leading to defamation of the complainant; the gold ornaments were refused to be returned though demanded, which amounted to criminal breach of trust by the accused. The complaint was filed on 4 -8 -1983. Having examined the complainant and having held an inquiry under Section 202 Cr. P C., the learned Additional Chief Judicial Magistrate, Gwalior took cognizance as aforesaid. Pursuant to the summons issued, the two accused appeared at Gwalior They prayed for exemption from personal appearance for the reasons stated in the application and which can well be understood. However, the complainant vehemently opposed the prayer by submitting that the non -Petitioner No. 2 with his confederates, all anti social elements, threatened the complainant and assaulted him at Gwalior where and when they had came to attend the Court and that the presence of the accused would be required at the hearing for the purpose of identification. The Trial Court heard the parties and granted exemption from personal appearance to the accused persons only for a day, meaning thereby that they where required to be present on the subsequent dates of hearing for which they had already been bound over by personal bonds with surety bonds. A list of witnesses has been filed with the complaint. It appears that the named witnesses are all family members of the complainant meaning thereby that they well knew the accused persons and there was hardly an occasion for insisting on the presence of the accused persons in the name of need for identification. The idea behind appeared to be something different. It is not possible to accept the bonafides of the ground on which the prayer made by the accused persons seeking exemption from personal appearance was opposed. It is also difficult to believe at its face value that the non -Petitioner No. 2, the father, a Government servant serving as A. S. M. accompanied by his daughter, would have indulged into assaulting the complainant and that too in the vicinity of the Court premises. The short submission made by the learned Counsel for the Petitioner is that the complaint is totally misconceived and amounts to a gross abuse of process of law because, on its face, the complaint and the statements of the witnesses recorded by the trial Court do not make out commission of an offence by the Petitioner and non -Petitioner No 2, even prima facie. At worst, the complaint may give rise to an occasion for civil liability, submits the learned Counsel. In so far as Section 500 I.P.C. is concerned, the matter need not detain the Court long for there is no innuendo nor any harm intended to the reputation of the complainant. The core of controversy is Section 406 I.P.C. and for that purpose, it would be necessary to examine what constitutes the principal ingredients of an offence of criminal breach of trust and whether they exist even prima facie in the facts and circumstance of the case. That would require a peep into the nature of relationship that had come into existence between the parties.
(2.) TO amount to criminal breach of trust, there must be an entrustment with property or with dominion or power thereover, and then a misappropriation or conversion to one's own use by the person to whom it was entrusted and such mis appropriation or conversion must be with a dishonest intention. What is entrustment, came to be examined in C. M. Narayan v. Suite of Tra, Co. : AIR 1953 SC 478. Their Lordships held: It follows almost axiomatically from this deflation that 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 Som Nath v. State of Rajasthan : AIR 1972 SC 1490, their Lordships held that the entrustment is if the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused; then he can be said to be entrusted with that property. In State of Gujrat v. Jaswantlal : AIR 1968 SC 700, their Lordships held that not only the person handing over property to another must continue to be its owner but "further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them." If the person handing over the property does not retain any right or dominion over it, there is no entrustment within the meaning of Sections 405/406 I.P.C. In Sardar Singh v. State of Haryana : AIR 1977 SC 1766, their Lordships observed that Section 405 I.P.C. requires something much more than a mere failure or omission to return property. The principles deducible from the abovesaid authorities and relevant for the purpose of the present case are: (i) To create an entrustment the prosecution must show existence of a fiduciary relationship between the parties where the entrustee must hold the property for the benefit of the person entrusting or for a specified purpose or for dealing in a particular manner, (ii) The entrustment having come to an end a mere failure or omission to return the property may not amount to criminal breach of trust. There must be a dishonest intention accompanying the act of misappropriation or conversion to ones own use by the entrustee. Wherever an allegation is made that someone has committed a criminal breach of trust, the Court should always bear in mind the difference between civil and criminal liability (See : AIR 1940 Mad 329). A mere breach of contract or a mere failure to return the articles though there may be a liability to do so, would not necessarily amount to criminality. Breach of an obligation may give rise to liability under the civil law but not necessarily under criminal law. A betrothal is a step towards marriage. Maynes in his celebrated work on "Hindu Law and Usage (12th Edition) observes vide para 110 - Marriage is not to be confounded with betrothal. The one is a completed transaction; the other is only a contract. A contract to marry will not be specifically enforced and the remedy, if any, is by an action for damages. Mulla in his work on Hindu Law (15th Edition) vide Para 437 (Page 567) writes - Betrothal precedes marriage; but unlike marriage it is revocable, so that a girl betrothed to one person may be validly given in marriage to another person though in such a case a suit may be brought for damage against the father or other guardian of the girl who brought about the contract of marriage. Betrothal is no more than a promise to marry. Raghavachariar - in his Hindu Law: Principles and Precedents (8th Edition) vide Para 41 (Page 37) writes: 41, Ceremonies -The laws of every nation lay down the forms and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the matrimonial bond (Warrender v. Warrender,, 2 Clerk and Finnelly, 531). There are really three stages in the ritual of a Hindu Marriage whether in the Brahma form or in the Asura form, and they are, (i) the betrothal, (ii) the formalities including the recital of holy texts before the sacred fire and (iii) the Saptapatigamana. Of these the betrothal, though in some cases celebrated with much ceremony and ostentation, is only a promise to marry and is revocable. What would be the nature of transaction and what intention should be attributed to the Plaintiff at the time when the ornaments were decked upon the girl ? Raghavachariar's Hindu Law (Supra), Paras 470/471 and 480/481 may be read with advantage as under: Property gifted or bequeathed to a female in her maiden state is her absolute property whether the gift be from relations or strangers (Mitakshara, II -2 -30: Venkata v. Venkata, 1 M. 281; Judoonath v. Bussunt,, 11 Beng. D R. 286; Dayabhaga Jv -1 -20 and her relations, whether father, mother or brothers, have no right over it. Wedding gifts. -Properties gifted at the time of marriage to the bride, whether by relations or strangers; either Adhyagni or Adhyavahanika, are the bride's Stridhana. If a present is given to the girl or to her father for the primary purpose of purchasing a bride or securing the marriage, then it would come within the definition of Sulka; but these same classes of gifts, if not tainted with the idea of purchasing the bride, but given simply as gifts to a prospective bride, would not fail within the definition of Sulka, but would be ordinary Stridhana descendible to the normal Stridhana heir, or as the amount paid as equivalent of the price of household utensils, ornaments, etc. 481 - Ornaments. -Ornaments presented to the bride by her husband or father constitute her Stridhana property (Harikishan Das v. Sundro Bibi), 89 I. C. 424:, 1925 Oudh 43. But ornament made over to a girl's father for the girl at the time of the betrothal do not become the Stridhana of the girl if the marriage does not take place (Chedi Lal v. Jawahir Lal) 491.186:, 1927 A. 160. It follows that a betrothal being a step towards marriage the ornaments presented to the girl are intended to be her Stridhans property. Of course, they acquire such title on marriage being performed. But, in any case, it cannot be said by any stretch of imagination that the intention at that time would have been to bring an 'entrustment' into existence.