Above all, other ground on which the accused were questioned the legality and validity for proceeding against them for the offences as referred to above is mis-joinder of cause of action. As far as the offence under Section 406 IPC is concerned, it cannot be disputed that the limitation for taking cognizance of the complaint runs from the date on which the request for return of jewels is first refused. There is absolutely no averment either in the complaint or Section 161 Cr.P.C statement regarding the date on which the request for return was made and was refused. Further, the learned counsel for the petitioner has also by relying on the authority of Calcutta High court reported in 1994 Crl.LJ 422 (Dinabandhu Banerjee v. Nandini Mukherjee) argued about the want of circumstances under which the continuance of user or repetition of user of the articles is transformed into dishonest misappropriation or criminal breach of trust. For better appreciation, para 10 of the judgment is extracted herunder:
"10.Now let us look to the language of the relevant parts of Section 403 and Section 405 of the Indian Penal Code for ascertaining whether the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence. Dishonest misappropriation or conversion to one's own use is the crux of the offence of dishonest misappropriation punishable under Section 403 IPC. Now, the dictionary meaning of the word misappropriate is 'to put to a wrong use; to take dishonestly for oneself' (vide, Chambers Twentieth Century Dictionary). The dictionary meaning of the word appropriate is 'to make to be the private property of anyone, to take to oneself as one's own' (ibid). It is thus evident that every wrong use will not necessarily be misappropriation. Misappropriation rather marks the point where the transition takes place from non-offending possession, control or use to offending or dishonest possession, control or use. It is this transitional phenomenon and this process of transformation which converts the possession or use of a property to dishonest misappropriation. Once this transitional phenomenon, that is, the process of transformation is complete and dishonest misappropriation takes place the subsequent wrong user of the property or the continuance of such wrong user is not a part of the phenomenon of misappropriation although such continuance of user or repetition of user may be also morally and legally wrong. But then such subsequent wrong user or continuance of wrong user or retention of the property wrongfully will not be a continuance or repetition of the offence of dishonest misappropriation as defined in Section 403. The same feature of transitional phenomenon of converting the complexion of the possession or user marks the precipitation and completion of the offence of criminal breach of trust as defined in Section 405. By definition the offence of dishonest misappropriation or for that matter, criminal breach of trust must be tainted at the point of its commission by a process of transformation by a transitional phenomenon converting the complexion of the possession, user or dealing of the property and once that transitional phenomenon is over and the conversion is complete by answering at that amount the definition of dishonest misappropriation or criminal breach of trust as contained in the relevant section of the Indian Penal Code, the subsequent continuance of the possession, user or dealing of the property even if it is morally wrong and legally untenable will be lacking the transitional factor of contemporaneous conversion of the complexion of the user from one type to a different type and therefore it cannot be said that the subsequent user is a continuing offence of the same type which was initially committed in changing the complexion of user. In order to constitute a continuing offence, the acts complained of must at every moment of continuance reflect all the ingredients necessary for constituting the offence. As we have seen conversiAon or transitional phenomenon of complexional change of the user being one of the salient ingredients of the offence of dishonest misappropriation or for that matter, criminal breach of trust, such transitional phenomenon obviously cannot recur or endure after the conversion or change of complexion of the user is complete. In the circumstances, it cannot be said that retention or subsequent dealing of the misappropriated property, although wrong, will constitute any such offence as stated above because the definition of such offence does not make such wrongful subsequent use of continued part or a repetition of the offence. I have therefore no hesitation to hold that the offence of dishonest misappropriation defined in section 403 or the offence of criminal breach of trust defined in Section 405 IPC is not a continuing offence because such offence, by definition takes place where an act is committed once and for all."
If the same view is applied to the facts of the present case insofar as the offence under section 406 IPC is concerned, no ingredients for the offences of dishonest misappropriation and criminal breach of trust are prima facie made out against the petitioners herein.
.Madras High Court
R.Jeeva @ Rajesh vs State By on 20 November, 2013
The accused 1 to 3 in CC.211/2012 on the file of the Judicial Magistrate No.1, Poonamallee, are the petitioners herein. This criminal revision is filed against the order made in CMP.No.3942/2012, thereby dismissing their petition for discharge from the alleged charges under Sections 498(A), 406, 506(i) IPC r/w 109 IPC.
2.Few facts, which are relevant for consideration herein are as follows:
The petitioners herein are the husband and parents in-laws of the defacto complainant by name D.Nandhini, who is the second respondent herein. The marriage between the first petitioner and the second respondent was solemnized on 22.1.2007 at Chennai as per Hindu rituals, rites and customs. After marriage, the wife continued to live in her parents' house for continuing her studies and the husband was on visiting terms and she became pregnant and Valakappu function was held. While so, misunderstanding arose between the two and they started quarreling with each other, which compelled the first petitioner/husband to approach K4 Women Police Station and also compelled to issue legal notice on 29.1.2008 calling upon the wife to resume the matrimonial relationship and the same was replied by the wife. Then, the wife gave birth to female child. Even thereafter, the parties did not join together. The husband ultimately approached the court for dissolution of the marriage between the first petitioner and the second respondent in OP.3719/2008. The same was followed by the petition under Section 9 of the Hindu Marriage Act 1955 by the wife for restitution of conjugal rights in OP.3808/2008. Both the parties raised various allegations against each other in their respective petitions. The wife also came forward with a police complaint dated 21.2.2012 before the Assistant commissioner, All women Police Station, Vadapalani, Chennai against the husband and in-laws for their alleged acts of cruelty and criminal intimidation for complying with the demand of dowry. The same was registered in W27 All Women Police Station, Vadapalani FIR in Cr.No.11/2012 for the offences under sections 498A, 406 and 506(i) IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The same was investigated and culminated as CC.No.211/2012 on the file of the Judicial Magistrate No.I, Poonamallee.
3.On service of summons, the accused 1 to 3 came forward with Crl.MP.No.3942 of 2012 for their discharge mainly on the ground that the materials available do not make out any case much less prima face case for the offences as referred to above and the offences are barred under limitation under section 469 Cr.P.C as the allegations narrated in the complaint are related to the year 2007 and there was no cordial relationship between the defacto complainant and the petitioners from 11.12.2007. The same was opposed by the prosecution by filing counter with serious objections to discharge A1 to A3 from the charges. The trial court dismissed the petition on the ground that there is prima facie offence made out against all the accused and there are lot of triable issues involved in this case. Hence, this criminal revision by the accused 1 to 3 before this court.
4.Heard the rival submissions made on both sides.
5.As already referred to, the accused are charged for the offences under Sections 498A, 406, 506(i) r/w 109 IPC. As per the allegations raised in the final report, the facts constituting the offences as referred to above are as follows: All the accused, due to non satisfaction of dowry brought by the defacto complainant, joined together and demanded balance 24 sovereigns of jewels from her parents and they treated her in a cruel manner and several times, they beaten her and that the first accused, at the instigation of the accused 2 and 3 picked up quarrel with the defacto complainant and the defacto complainant tolerated all the harassment and she was not provided any basic needs and she was insisted not to close her bed room, while she was sleeping and the accused 2 and 3 did not allow her to serve food to her husband and not allowed her to speak to her husband and on 11.12.2007, when she served food to the first accused, other accused were beaten her in cruel manner without considering her pregnancy and drove her from the matrimonial house and when the same was questioned and when they were requested to allow her in the matrimonial house, they did not allow her to do so and several mediation in this regard ended in fail. It further says that the first accused did not speak to and did not show any love and affection to the wife and she was isolated by all the accused and was treated as servant. The acts as stated above, according to the complainant, constitute the offence punishable under section 498A IPC.
6.As rightly argued by the learned counsel for the petitioners, the acts stated above are allegedly committed by A1 to A3 during the complainant's stay in the matrimonial house. As per the allegations contained in the complaint and charge sheet, the second respondent/wife was driven out of the matrimonial house on 11.12.2007, whereas the present complaint came to be lodged on 21.2.2012 and FIR was registered on 25.2.2012 i.e., nearly 4= years thereafter.
7.According to the learned counsel for the petitioners, as the punishment prescribed under section 498A IPC is imprisonment upto 3 years with fine and as per Section 468 Cr.P.C no court shall take cognizance of the offence after expiry of 3 years in respect of the offence punishable for the term of one year and not exceeding 3 years, the cognizance of the compliant for the offence under section 498A IPC is barred by limitation and is bad in law. The learned counsel for the petitioners also relied on the decision of the Hon'ble Supreme Court reported in (2010) 1 SCC (Cri) 1015 (Manju Ram Kalita v. State of Assam) to the effect that no case under section 498A IPC is made out.
8.Per contra, the learned counsel for the second respondent would vehemently argue that as the demand for more valuables and cash persisted even after her being driven out of the matrimonial house and as the latest demand was during 2012 and as the complaint was based on cause of action arose during 2012, the complaint filed on 21.2.2012 and registered on 25.2.2012 and was taken cognizance in the same year, are well within the time and are not hit by limitation. This Court is not inclined to accept the contention so raised on the side of the second respondent/wife for the following reasons.
9.First of all, there is absolutely no allegation either in the complaint or in the final report regarding the continuing demand for more valuables and cash. It is evident from the complaint, copy of which is enclosed at pages 19 to 22 of typed set dated 30.4.2013 filed by the petitioner. There is no allegation in the complaint regarding any demand for dowry or any harassment or ill-treatment of the wife in her parents house after 11.12.2007. The threat thrown at her during 2012 was to give consent for second marriage and against her claim for maintenance for herself and on behalf of the child and not otherwise. Thus, there is absolutely no allegation about continuing act of cruelty or harassment to attract the mischief under Section 498A IPC between 11.12.2007, the date on which she was allegedly driven out of the matrimonial house and 25.2.2012 the date on which the complaint came to be registered. As rightly pointed out by the learned counsel for the petitioners, the complainant has also not furnished satisfactory explanation for the delay in lodging the complaint, after 4 = years particularly much after the institution of divorce petition by the husband and the petition for restitution of conjugal rights by the wife. As the materials available herein would disclose the act of cruelty and harassment as defined under section 498A IPC, before 11.12.2007, the complaint regarding the same during 2012 after the period of limitation of three years is certainly out of time and bad in law and is hence not maintainable.
10.Regarding the offence under Section 506(i) r/w 109 IPC, the contention raised by the accused is that the allegations are vague and bald in nature and not distinct and specific to enable the accused to meet out the same in proper and effective manner and the same amounts to abuse of process of court. In this regard, the allegation raised in the final report is to be looked into. The same reads as if the accused on 10.2.2012 and 17.2.2012 threatened the defacto complainant for her consent for divorce and for second marriage, failing which, to face dire consequences for herself and the child. While the complaint says that the threats on 10.2.2012 and 17.2.2012 were made in front of the school and while she was going to school respectively, the final report simply proceeds as if the threat was made on 10.2.2012 and 17.2.2012. Neither the complaint nor the final report does mention anything about the time and the exact place at which threat was made as contemplated under Section 212 Cr.P.C. It is clearly provided under Section 212(1) Cr.P.C that the charge shall contain such particulars as to the time and place of the alleged offence and the person against whom or the thing in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
11.Whereas, the allegations raised either in the complaint or the final report do not sufficiently state the time and the place at which occurrence is made. As rightly argued by the learned counsel for the petitioners, without such material particulars as referred to above, the accused is unable to defend the case and to effectively meet the charges framed against them by raising proper and valid defence. Thus, the manner in which the allegations raised without relevant particulars would only compel this court to hold that the accused are deprived of their opportunity for properly defending themselves and the same amounts to abuse of process of law and the same vitiates the prosecution case and is sufficient enough to discharge the accused from the charge punishable under section 506(i) IPC. Even otherwise, the threat having been allegedly made by A1 in the absence of any allegation against A2 and A3, their inclusion as abettors for the offence under section 506(i) r/w 109 IPC is certainly not maintainable and is likely to cause serious prejudice to the accused, as such, the accused 1 to 3 are entitled to discharge from the charge under section 506(i) r/w 109 IPC.
12.The learned counsel for the petitioners has also relied on the following decisions regarding the act of criminal intimidation by raising vague and bald allegations: (i)(2008) 3 MLJ (Crl) 776 (Rajan v. State rep. by Inspector of Policer, Central Crime Branch, Tiruppur and (ii)(2008) 3 MLJ (Crl) 929 (Prakash Bachraj Jain and another v. Mani Textile Traders rep. by its Partner, Babu (a) Boommannan, Komarapalayam, Tiruchengodu Taluk, Namakkal District), wherein, our High court is of the view that vague and bald allegations of threat do not give rise to offence under Section 506(ii) IPC and the complaint filed and the proceedings initiated are clear case of abuse of process of court and liable to be quashed. Our High court has in (2008) 3 MLJ (Crl) 776 (cited supra) referred to other two judgments of our High Court and Punjab and Haryana High Court reported in (1988) 1 MLJ (Crl) 54 (Nobel Mohandass v. State) and (2002) 2 CC Cases (P&H) 320 (Usha Bala v. State of Punjab), wherein, both the High courts have held that empty threats does not prima facie mean that the case under section 506 IPC is made out and threat should be a real one and not just a mere word and when the person uttering it does not exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. Such view is squarely applicable to the facts of the present case and herein also no case is made out against the petitioners for the offence under Section 506(i) r/w 109 IPC.
13.The remaining charge to be considered herein is for the offence under Section 406 IPC. Here again, the complaint contains no allegations in this regard and also in section 161 Cr.P.C statement of the witnesses. What is stated by them is that jewels and Seethana jewels and articles were given to her only at the time of marriage. As far as the final report is concerned, it says that the accused did not return Seethana jewels weighing 30 sovereigns and all the belongings of the complainant were taken away for his own use and no prima facie case is made out against the accused for the offence under section 406 IPC.
14.Above all, other ground on which the accused were questioned the legality and validity for proceeding against them for the offences as referred to above is mis-joinder of cause of action. As far as the offence under Section 406 IPC is concerned, it cannot be disputed that the limitation for taking cognizance of the complaint runs from the date on which the request for return of jewels is first refused. There is absolutely no averment either in the complaint or Section 161 Cr.P.C statement regarding the date on which the request for return was made and was refused. Further, the learned counsel for the petitioner has also by relying on the authority of Calcutta High court reported in 1994 Crl.LJ 422 (Dinabandhu Banerjee v. Nandini Mukherjee) argued about the want of circumstances under which the continuance of user or repetition of user of the articles is transformed into dishonest misappropriation or criminal breach of trust. For better appreciation, para 10 of the judgment is extracted herunder:
"10.Now let us look to the language of the relevant parts of Section 403 and Section 405 of the Indian Penal Code for ascertaining whether the offence of dishonest misappropriation or for that matter, criminal breach of trust is a continuing offence. Dishonest misappropriation or conversion to one's own use is the crux of the offence of dishonest misappropriation punishable under Section 403 IPC. Now, the dictionary meaning of the word misappropriate is 'to put to a wrong use; to take dishonestly for oneself' (vide, Chambers Twentieth Century Dictionary). The dictionary meaning of the word appropriate is 'to make to be the private property of anyone, to take to oneself as one's own' (ibid). It is thus evident that every wrong use will not necessarily be misappropriation. Misappropriation rather marks the point where the transition takes place from non-offending possession, control or use to offending or dishonest possession, control or use. It is this transitional phenomenon and this process of transformation which converts the possession or use of a property to dishonest misappropriation. Once this transitional phenomenon, that is, the process of transformation is complete and dishonest misappropriation takes place the subsequent wrong user of the property or the continuance of such wrong user is not a part of the phenomenon of misappropriation although such continuance of user or repetition of user may be also morally and legally wrong. But then such subsequent wrong user or continuance of wrong user or retention of the property wrongfully will not be a continuance or repetition of the offence of dishonest misappropriation as defined in Section 403. The same feature of transitional phenomenon of converting the complexion of the possession or user marks the precipitation and completion of the offence of criminal breach of trust as defined in Section 405. By definition the offence of dishonest misappropriation or for that matter, criminal breach of trust must be tainted at the point of its commission by a process of transformation by a transitional phenomenon converting the complexion of the possession, user or dealing of the property and once that transitional phenomenon is over and the conversion is complete by answering at that amount the definition of dishonest misappropriation or criminal breach of trust as contained in the relevant section of the Indian Penal Code, the subsequent continuance of the possession, user or dealing of the property even if it is morally wrong and legally untenable will be lacking the transitional factor of contemporaneous conversion of the complexion of the user from one type to a different type and therefore it cannot be said that the subsequent user is a continuing offence of the same type which was initially committed in changing the complexion of user. In order to constitute a continuing offence, the acts complained of must at every moment of continuance reflect all the ingredients necessary for constituting the offence. As we have seen conversion or transitional phenomenon of complexional change of the user being one of the salient ingredients of the offence of dishonest misappropriation or for that matter, criminal breach of trust, such transitional phenomenon obviously cannot recur or endure after the conversion or change of complexion of the user is complete. In the circumstances, it cannot be said that retention or subsequent dealing of the misappropriated property, although wrong, will constitute any such offence as stated above because the definition of such offence does not make such wrongful subsequent use of continued part or a repetition of the offence. I have therefore no hesitation to hold that the offence of dishonest misappropriation defined in section 403 or the offence of criminal breach of trust defined in Section 405 IPC is not a continuing offence because such offence, by definition takes place where an act is committed once and for all."
If the same view is applied to the facts of the present case insofar as the offence under section 406 IPC is concerned, no ingredients for the offences of dishonest misappropriation and criminal breach of trust are prima facie made out against the petitioners herein.
15.Another point, which is sought to be argued before this court is by questioning the maintainability of the proceedings on mis-joinder of cause of action. It is contended by the learned counsel for the petitioners that the acts of cruelty and criminal intimidation and the acts of misappropriation and criminal breach of trust are different incidents taken at different place and not in the same course of action and the police is not hence justified in registering one FIR and there is no possibility of conducting joint trial of all the offences together and the accused have the right to plead that they are prejudiced by such wrong trial. The learned counsel for the petitioners in support of such contention also relied on the decision of this court reported in 2009 Crl.LJ 3872 (Ambujam v. Ayyasamy and others) wherein, all the accused were charged for the offences under sections 498A IPC and A1 was charged for the offence under section 506(ii) IPC. The criminal trial ended in an order of acquittal of the accused. Against which, the criminal revision came to be filed. The learned brother judge, by resorting to Section 219 Cr.P.C was of the view that there is no possibility of conducting joint trial of both the offences as both the incidents are different and taken place at different places at different point of time and are not in the course of same transaction and disinclined to interfere with the order of acquittal. The same view can be equally applied to the facts of the present case.
16.Viewing from any angle, this Court is inclined to hold that there is no material and sufficient ground to proceed against the accused for the offences as referred to above. However, the trial court without duly appreciating the objections raised in the discharge petition, in the manner as discussed, committed serious error in dismissing the discharge petition, as such, the impugned order suffers from serious irregularity and infirmity, thereby seriously prejudiced accused warranting interference by this Court.
17.In the result, this Criminal Revision is allowed and the order dated 28.3.2013 made in Crl.M.P.No.3942 of 2012 in CC.No.211 of 2012 on the file of Judicial Magistrate No.I, Ponnamallee stands set aside. The petitioners/accused 1 to 3 are discharged from the charges levelled against them. Consequently, connected Miscellaneous Petitions are closed.
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