In Kamalaban -Vs- Maneharlal (1991) CrLJ 236 (NP), it has
been held that for criminal breach of trust under Section 406 IPC,
limitation commences only after the accused refused to accedes to
complainant's demand. Law of Crimes written by Ratanlal & Dhirajlal
in Section 405, Column No.s 18, 19, the meaning of “Wife” and
“Stridhana” describes as follows-
(i)
“Wife- A wife has a joint possession of her husband's
property and cannot therefore, be indicated for disposing of it
in any way. Where the exclusive property of one of the spouses
is unwarrantedly taken away or misappropriated by the other
and
the
marriage
breaks
down,
the
offences
of
misappropriation can be made out.
Even if the stridhana property of a married woman is
placed in the custody of her husband or in-laws, they would be
deemed to be trustees and bound to return the same if and
when demanded by her. Where the allegation of entrustment
and misappropriation of stridhan properties was made out by
the married woman in her complaint and the allegations were
clear, specific and unambiguous and all the facts stated in the
complaint constitute the offence under Sections 405-406 IPC,
the right to prove the case could not be denied to the
complainant.”
(ii)
Sridhana- Stridhana property remains to be wife not
only during the matrimonial home continues but even after its
break. The husband is merely custodian of Stridhana and he
cannot refuse to return it to wife. Dishonest misappropriation
or conversion to use stridhan property by husband would
constitute offence under this section.”
(9)
As the case in hand, is filed by the wife against his husband and
in-laws on refusal of the demand, the case is squarely covered by the
observation made above.
Crl. Revision No. 40(3)/12
Petitioners: (1)
Sri Mrinal Gogoi,
Respondents:
(1) State of Assam; and
(2) Smti. Meenakshi Mech @ Gogoi,
IN THE COURT OF THE SESSIONS JUDGE AT DIBRUGARH
Present:
Smti. R.K. Phukan, AJS,
Sessions Judge,
Date of Judgment : 4-12-13.
This criminal revision petition has been filed u/S 397/398/399
of the CrPC against the impugned Judgment dtd. 25-07-12 and
13-08-12, passed by the learned Judicial Magistrate, Sri NMA
Ahmed, Dibrugarh, in connection with Case No. 227c/2011 u/Ss
406/506 IPC.
(2)
The petitioner has stated that the respondent No. 2 has filed
Case No. 223c/2011 u/Ss 406/506/34 IPC against the petitioners. The
petitioner has enclosed a copy of the said complaint with the petition.
On receipt of the summons, the petitioners appeared in the case and
filed petition, raising objection that there are no materials for framing
of charge, the learned Magistrate framed charge
against the petitioners. The petitioners have also enclosed a copy of
the order and depositions with the petition.
(3)
Being highly aggrieved and dissatisfied with the impugned
order, the petitioners preferred this revision on the following amongst
other grounds-
(i)
That the impugned order of framing of charge is neither
maintainable in law nor in facts;
(ii)
That the learned Court below has failed to take into
account the materials available in the records and passed
the impugned order for framing charge; hence, the same
is liable to be set aside;
(iii)
That the learned Magistrate below has failed to
appreciate the spirit of law;
(iv)
That the learned Magistrate has not taken into the
account
of the materials on record and passed
the
impugned order in an erroneous way; hence, the same is
liable to be set aside;
(v)
That the crave leave of the Hon'ble Court, the petitioners
shall refer all other grounds of the revision at the time of
hearing.
(4)
I have heard argument of learned counsel appearing for both
the sides and gone through the case record.
(5)
The bone of contention from
the learned counsel of the
petitioner is that as the marriage between the parties was solemnized
in the year 2005 and as such, filing of case by the opposite party No.
2
in the year 2011 raising allegation of misappropriation of property
u/S 406 IPC is not maintainable in view of the provision of Section
468 CrPC as because the punishment u/S 406 IPC is upto 3 (three)
years or fine and Section 468(2)(c) CrPC creates a bar for taking
cognizance after elapse of three years.
It has been vehemently
contended that the Court below has erred in law and facts while
taking cognizance of the offence u/S 406 IPC.
(6)
On the other hand, the learned counsel for the opposite
party has argued that the Court below has rightly taken the
cognizance as the matter in hand relates to matrimonial offence and
the entrustment though indicate from the date of marriage, but the
cause-of-action for breach of trust will arise as soon as there was
refusal on the part of her husband or in-laws of family. It is also
pointed out that the Court below has clearly discussed all aspects of
the matter and has arrived at a right decision and the impugned order
needs no interference by way of revision.
(7)
Conjoint reading of Section 468 & 469 CrPC implicitly
indicates that the period of limitation shall commence from the date
of offence. From the documents so filed by the petitioner, it appears
that the marriage between the parties was solemnized on 11-12-2005
and the opposite party has been residing separately since 24-07-2008
having dispute between them. There was no demand from the side of
the opposite party for return of her stridhana property since then. But
only on 10-07-11, the opposite party demanded for return of her
stridhana article which was refused by the petitioners for which she
filed the case on 03-08-11. So, apparently within one month
of
refusal of her demand, the opposite party lodged the complaint
against the petitioner.
(8)
In Kamalaban -Vs- Maneharlal (1991) CrLJ 236 (NP), it has
been held that for criminal breach of trust under Section 406 IPC,
limitation commences only after the accused refused to accedes to
complainant's demand. Law of Crimes written by Ratanlal & Dhirajlal
in Section 405, Column No.s 18, 19, the meaning of “Wife” and
“Stridhana” describes as follows-
(i)
“Wife- A wife has a joint possession of her husband's
property and cannot therefore, be indicated for disposing of it
in any way. Where the exclusive property of one of the spouses
is unwarrantedly taken away or misappropriated by the other
and
the
marriage
breaks
down,
the
offences
of
misappropriation can be made out.
Even if the stridhana property of a married woman is
placed in the custody of her husband or in-laws, they would be
deemed to be trustees and bound to return the same if and
when demanded by her. Where the allegation of entrustment
and misappropriation of stridhan properties was made out by
the married woman in her complaint and the allegations were
clear, specific and unambiguous and all the facts stated in the
complaint constitute the offence under Sections 405-406 IPC,
the right to prove the case could not be denied to the
complainant.”
(ii)
Sridhana- Stridhana property remains to be wife not
only during the matrimonial home continues but even after its
break. The husband is merely custodian of Stridhana and he
cannot refuse to return it to wife. Dishonest misappropriation
or conversion to use stridhan property by husband would
constitute offence under this section.”
(9)
As the case in hand, is filed by the wife against his husband and
in-laws on refusal of the demand, the case is squarely covered by the
observation made above. It is to be noted that the learned Court
below has also lucidly decided about the same aspect that every
demand for return of stridhana article followed by refusal or
non-compliance
with
the
demand
given
rise
to
a
fresh
cause-of-action and has arrived at a conclusion that there is
cause-of-action for filing the case only after refusal of her husband
and in-laws on 10-07-11 and the case is within the limitation. It is
found that the leaned Court below has after proper appreciation of
factual as well as legal aspects, has arrived at a right conclusion and
framed the charge accordingly.
There appears no illegality or
impropriety to interference into the findings arrived at by the Court
below while framing charge and needs no interference.
(10) In consequence, the revision deserves no merit and hence
dismissed.
(11) Return the LCR.
Delivered my hand and seal of this Court on this the 4th day of
December, 2013.
Typed by:-
Bhaskar Jyoti Bora, Steno.
Sessions Judge,
Dibrugarh
No comments:
Post a Comment