KAMALA DEVI Vs. SUSHILA SHARMA

JUDGEMENT

(1.) This revisional application is directed against the order dated the 11th December, 1991 by which the learned Court below dismissed an application filed by the present petitioners for discharging them under section 245(2) Cr. P.C. The opposite party herein filed a petition of complaint for an offence punishable under Section 406/34 I.P.C. against the present petitioners. The learned Court below after examining the complainant and her witness directed for issuing process against the accused persons, the petitioners herein, under section 406/34 I.P.C. The complainant was married to the accused no I in December, 1989 at their native place in the district of Churn in the State of Rajasthan. After the solemnisation of the marriage, tire complainant was taken to her matrimonial home which is the parental house of her husband at Chum in Rajasthan. It is the case of tire complainant brat she entrusted all her ornaments which were presented to her by her parents and other relatives at the marriage to her mother-in-law, the accused no. 2 and the said ornaments were kept under tire custody, supervision and control of the accused no. 1, the husband of the complainant. It is also her case that she was ill-treated and was being subjected to torture and humiliation in the house of her in-laws and ultimately she was driven away from there on tire 17th May, 1990 without allowing her to take her Ornaments and belongings with her. In paragraph-8 of the petition of complaint it is stated that since then she bas been staying in her parental house at Calcutta. In paragraph-11 of the complaint it is stated that the ornaments are kept by the accused no. 2 in her personal custody in Calcutta and many of the articles of the complainant have been brought and kept by the accused persons in their Calcutta address. The Calcutta addresses of both the complainant and the accused persons have been described in the cause title of the petition of complaint. It is also the allegation of the complainant that the accused persons refused to accept her in their home and that inspite of demand the accused persons did not return the ornaments and other articles of the complainant. It is further alleged in paragraph-12 that the father of the complainant and one Mr. Jethmal Sharma who went to the accused persons in March, 1991 saw some ornaments and articles there at the residence of the accused persons (described as 'said residence' of the accused), but on demand the accused persons flatly denied about entrustment and refused to return any of the ornaments or articles. In paragraph-14 of the complaint it is stated substantially that the cause of action arising from denial of entrustment and refusal to return the entrusted articles took place within the jurisdiction of Burro Bazar P.S. (Calcutta) and substantial part of the entrusted properties of the complainant has been retained and liable to be accounted for within the said jurisdiction.

(2.) It is argued by the learned Advocate for the petitioners that the learned Court below had no territorial jurisdiction to take cognizance of the offence and as such the cognizance taken by the court is bad in law. It is, submitted that according to the allegations of the complainant the marriage took place at Churn, the entrustment of the ornaments and other articles took place at Churn and the complainant was also driven away from the house of her in-laws at Churu without allowing her to take back her ornaments and other articles and that being so the alleged offence under section 406 I.P.C. took place, if at all, at Churn beyond the jurisdiction of the Calcutta court and as such the Calcutta Court has no jurisdiction to try the case. In this connection, the learned Advocate for the petitioners attracts my attention to section 181(4) Cr. P.C. which provides that 'any offence of criminal mis-appropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.' In this connection, the learned Advocate for the petitioners also relies on a decision of the Punjab and Haryana High Court in Harjeet Singh v. State of Punjab, 1986 Cr LJ 2070 where in connection with interpretation of the expression 'was required to be returned or accounted for' as used in the said section 181(4) it was held that the requisite 'requirement' is to be determined on the basis of the stipulation if any, between the parties, i.e., the complainant and the accused as to where the goods are to be returned or to be accounted for and in the absence of any such stipulation it would be the place where the goods in question were kept in trust and a breach in respect thereof was committed. In this connection, it is however to be noted that under section 181(4) the Court within whose jurisdiction the concerned property was `retained' also has jurisdiction to try the case. The learned Advocate for the petitioners also attracts my attention to para-7 of the decision of the Supreme Court in Madhabrao v. Sambhajirao, AIR 1988 SC 709, where it has been observed inter alia that the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. In the present case however I find no special facts which may warrant the quashing of the proceeding at the initial stage.

(3.) My attention is also drawn by the learned Advocate for the petitioners to the decision of the Supreme Court in Nagawwa v. Veeranna, AIR 1976, SC 1947 where one of the propositions enunciated far quashing the proceeding was that where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. In the present case the complaint as well as the initial deposition of the complainant and her father prima facie discloses the commission of offence for which the learned Magistrate took cognizance in the case. The learned Advocate for the petitioners also relies upon the decision of the Supreme Court in Nirmaljit v. State of West Bengal, AIR 1972 S.C. 2639 in support of his argument that no process can be issued by he Magistrate where there is no sufficient ground for proceeding. I however find that in the present case the petition of complaint and the initial deposition of the complainant and her father afford sufficient ground for proceeding. The petition of complaint in the present case, I also find, contains specific allegations to the effect that at least some part of the entrusted articles and ornaments were at certain point of time, subsequent to such entrustment, retained by the accused persons at their Calcutta residence. That being so, the Calcutta court, in view of the said allegations in the complaint, has jurisdiction to try the case.