MOHINDER SINGH DEOL Vs. GURMINDER KAUR DEOL

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure, 1973, for quashing the order dated 24th May, 1980, passed by the learned Additional Chief Judicial Magistrate, Chandigarh. Vide that order the learned Magistrate had ordered summoning of the petitioners as accused in a Complaint filed by the present respondent.

(2.) THE brief facts leading to the present petition are that the present respondent Gurminder Kaur was married to the son of the present petitioners who are husband and wife. The petitioners asked the complainant to send her husband for Examination Commission for Foreign Medical Graduates. She asked her father to fulfil the wishes of her in laws and thereafter her husband was sent to Canada, for the said examination on the basis of sponsorship made by her brother who was in Canada. Both at the time of Shagan ceremony and marriage the complainant was presented with jewellery and other articles by her parents and other relations. List of these articles was attached to the complaint as Annexure 'A'. On both these occasions jewellery and other articles were also presented to her by her in-laws. The list of these articles was attached as Annexure 'B'. These articles were her Stridhan. When the husband of the complainant was to leave for Canada, the present petitioners advised the complainant to take out all the jewellery from her locker in the Bank, which was in the joint name of her and husband on the pretext that her husband might not take away the jewellery with him and convert it to his own use. The complainant without understanding the ultimate implications of the above suggestion of the petitioners, withdrew the entire jewellery from her locker and handed it over to her mother-in-law who had accompanied her to the Bank, on 9th July, 1975. Her mother-in-law on the occasion tauntingly mentioned that the jewellery given to her by her parents did not commensurate with their (i.e. in-laws) status, as judged from the jewellery given by them to the complainant. The complainant went to meet her sister-in-law (Bhabi) at Ludhiana and on that occasion the petitioners gave her mother-in-law some articles and ornaments which are mentioned in the list Annexure 'E'. List Annexure 'F' was of ornaments and articles which normally remained with the complainant while list Annexure 'X' was of the ornaments which were entrusted to the accused. The complainant also attached a list of the dowry articles an Annexure 'Y' which were in the possession of the accused. The complainant's husband while in Canana died. Thereafter the treatment of the accused towards the complainant changed and they started hurling abuses on her and her parents. Efforts were made to sort out the differences but inspite of several efforts the petitioners only returned some articles, list of which was attached to the complainant as Annexure 'C'. They refused to return anything else. Thus the complainant prayed that action be taken against the petitioners, who were arrayed as accused, under Section 406 of the Indian Penal Code or any other provisions of the law.

(3.) THE learned counsel for the petitioners argued the criminal breach of trust has been defined in section 405 of the Indian Penal Code and the complainant in her complaint has nowhere alleged that the petitioners have dishonestly misappropriated or converted to their own use the property alleged to have been entrusted to them. He argued that at the most the allegations amount to retention of the complainant's property by the petitioners and, therefore, no offence is made out. In support of his connection he has cited Desai Champaklal Nem Chand v. State 1961(1) Crl. L.J. 654 wherein it was held that mere retention of certain amount which was entrusted is not criminal breach of trust and dishonest misappropriation must be proved. He also argued that for an offence under Section 406 of the Indian Penal Code, one of the ingredients to be established by the complaint is mens rea on the part of the accused to misappropriate the property. I am of the opinion that the case is still at the initial stage. Only preliminary evidence has been recorded, according to which the complainant entrusted certain property and the petitioners have refused to hand it over other. For establish criminal breach of trust it is not necessary for the complainant to establish actual misappropriation. There can be misappropriation also when a person's intention is reflected through his behaviour and refuse to hand over the property entrusted to him.