Chandra Shekhar Singh & Others vs State Of U.P. & Others
2017 Latest Caselaw 2899 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 19
 
Case :- APPLICATION U/S 482 No. - 1252 of 2004
 
Applicant :- Chandra Shekhar Singh & Others
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- I.K. Chaturvedi,Prem Singh
 
Counsel for Opposite Party :- Govt. Advocate,Anubhav Trivedi,J.N. Maurya,S.K. Shukla,Sheel Ojha
 
Hon'ble Mrs. Vijay Lakshmi,J. 

List revised.

No one appeared on behalf of O.P. No.2, even in the revised call.

Heard Shri I.K. Chaturvedi, learned counsel for the applicants and learned A.G.A. Perused the records.

As this application under Section 482 Cr.P.C. is pending since the year 2004 and O.P. No.2 has already filed his counter affidavit, which is available on record, I am deciding this application on merits after perusing all the averments made in the counter affidavit by the O.P. No.2.

The applicants, who are the father and brothers of the deceased wife of O.P. No.2, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the entire proceedings of Criminal Case No.2172 of 2003 (Vishnu Pujan Singh Vs. Chandra Shekhar Singh and others) under Sections 506 and 406 I.P.C. pending before the learned Chief Judicial Magistrate, Kaushambi.

The facts in brief are that the marriage between Smt. Sudha Devi, daughter of applicant no.1, was performed with O.P. No.2 in the year 1999. Smt Sudha Devi was an educated lady, employed as Assistant Teacher in Primary School-Jagatpur, Block Sarsawa, District-Kaushambi. However, her husband and in-laws used to subject her to cruelty in connection with demand of dowry, which compelled her to leave her matrimonial home and to live in her parental home along with the applicants, but her mental harassment by husband and in-laws continued and ultimately, in a state of mental depression, she committed suicide by hanging. She had been so much fed up by the cruel behaviour of her husband and the other relatives that before her death she wrote a letter to the "Basic Shiksha Adhikari" concerned, not to give employment to her husband or any of his relatives after her death.

Learned counsel for the applicant has submitted that the O.P. No.2, who is in fact, a person having bad habits, when failed to succeed in getting employment under the Dying in Harness Rules, started harassing the applicants threatening them of dire consequences. With malafide intention, he filed a frivolous complaint against the applicants on 23.8.2003 with the allegations that the applicants have illegally usurped Rs.97,000/- which his deceased wife had withdrawn from the joint account of husband (O.P. No.2) and wife (deceased Sudha Devi) and have illegally kept with them all the ornaments gifted to the deceased in the marriage from both sides. It was also alleged that a Kisan Vikas Patra, amounting to Rs.50,000/- in the joint name of husband and wife, which was in possession of the deceased at the time of her death, has also been illegally kept by the applicants with them. When the O.P. No.2 asked the applicant to return all these items, they denied.

In support of the complaint, the O.P. No.2 recorded his statement under Sections 200 Cr.P.C., and of two witnesses under Section 202 Cr.P.C. The learned Magistrate on the basis of these statements, found a prima facie case and accordingly summoned the applicants by the impugned order.

Learned counsel for the applicants has submitted that the aforesaid complaint is nothing but an abuse of the process of the court and law. The applicant nos.2 and 3 who are the sons of the applicant no.1 were prosecuting their studies at that time and they have absolutely no concern with the allegation made in complaint. However, with malafide intention and only in order to ruin their academic career, they were made a party in the complaint. Learned counsel has further contended that in fact, the deceased's ornaments were in possession of O.P. No.2. When the applicant no.1, after the suicidal death of his daughter, asked the O.P. No.2 to return only those ornaments gifted by him to the deceased, the O.P. No.2, instead of returning the ornaments, implicated the applicants in this false complaint case. It is further contended that no case under Sections 506 and 406 I.P.C. is made out against the applicants as all the essential ingredients of Sections 506 and 406 I.P.C. are missing in the present case, therefore, the entire criminal proceedings are liable to be quashed.

Learned A.G.A. has opposed the application by contending that at the stage of summoning, only prima-facie evidence is required. Moreover, the disputed questions of facts cannot be looked into by this Court while exercising inherent jurisdiction under Section 482 Cr.P.C.

In the counter affidavit filed by the O.P. No.2, it has been contended that the learned Magistrate has rightly summoned the applicants, relying on the statements of the witnesses produced by O.P. No.2 in the complaint. It has also been averred that the O.P. No.2 and his wife, spent a lot of money jointly, in purchasing the Kisan Vikas Patra, which has been illegally kept by the applicant no.1 in his possession.

Considered the rival submissions made by the learned counsel for the parties.

The applicants vide impugned order dated 12.11.2003, have been summoned by the learned Magistrate to face the trial under Sections 406 and 506 I.P.C.

Section 406 of I.P.C. provides for Punishment for "criminal breach of trust" which has been defined by Section 405 I.P.C., which reads as under:-

"Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

The Hon'ble Apex Court in a catena of judgments has enumerated the essential ingredient for constituting an offence under Section 406 I.P.C. In the landmark case of Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242: (2012) the Hon'ble Apex Court has held as under:-

"The basic requirements to bring home the accusations under section 405 of the Code are the requirements to prove conjointly (i) entrustment and (ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it;"

In Ramaswami Nadar v. State of Madras, AIR 1958 SC 56 the Apex Court has held that the word "entrusted" in the section is very important. Unless there is entrustment, there can be no offence under the section."

In Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575, the Apex Court, while interpreting the meaning and extent of criminal breach of trust, has observed as under:

"It must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held that property on behalf of that person. A relationship is created between the transferor and transferee, whereunder the transferor remains the owner of the property and the transferee has legal custody of the property for the benefit of the transferor himself or transferee has only the custody of the property for the benefit of the transferor himself or someone else. At best, the transferee obtains in the property entrusted to him only special interest limited to claim for his charges in respect of its sale retention, and under no circumstances does he acquire a right to dispose of that property in contravention of the condition of the entrustment."

Now testing the facts of the case in hand on the anvil of aforesaid definitions, it appears that the first allegation against the applicant no.1 is that Rs.97,000/- was withdrawn from the joint account which was in the name of the deceased wife and her husband (O.P. No.2) and was not returned to O.P. No.2 by the applicant no.1.

I do not find any substance in the aforesaid allegations. In paragraph 10 of the affidavit, filed in support of the application, it has been specifically mentioned that the O.P. No.2 is an unemployed person. In the counter affidavit this fact has not been denied and in reply to paragraph 10 of the aforesaid affidavit, only this much has been stated that the O.P. No.2 is a man of clean habits. Thus, O.P. No.2 being an unemployed person was unable to deposit any amount. Even assuming for the sake of arguments, that the applicant no.1 had withdrawn the amount earned by his daughter, he being father and her legal heir, had the right to withdraw it. Hence, it cannot be said that there was any entrustment of that amount by O.P. No.2 to the applicants or there existed any relationship as transferor or transferee between them. Therefore, no offence is made out on this ground.

The second allegation is that the ornaments gifted to the deceased wife from both sides, were not returned to the O.P. No.2.

There does not appear any substance in the aforesaid allegations, as the ornaments gifted to a lady whether from the parental side or from the matrimonial side, are her 'Streedhan' and she has full rights to keep it with her. Hence, it cannot be said that O.P. No.2 had entrusted those ornaments to the applicants.

The third allegation against the applicants is that the "Kisan Vikas Patra" amounting to Rs.50,000/- purchased jointly by husband and wife was not returned to the O.P. No.2 by the applicants.

The aforesaid allegation also appears to be baseless in view of the fact that the applicants cannot take any advantage by keeping the Kisan Vikas Patra, issued in the name of the O.P. No.2 and his deceased wife.

In view of the above facts and circumstances of the case, it cannot be said that the essential ingredients of offence under Section 406 I.P.C. were present in this case.

Insofar as Section 506 of I.P.C. is concerned, a perusal of the complaint and the statements under Sections 202 and 202 Cr.P.C. clearly shows that the essential ingredients of Section 506 I.P.C. are also missing in this case.

Section 506 I.P.C. provides for punishment for "Criminal intimidation" which is defined by Section 503 of I.P.C. which is quoted below:

"503. Criminal intimidation.-Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."

It has been consistently held by the Hon'ble Apex Court and also by various High Courts that before an offence under this section is made out, it must be established that the accused had an intention to cause an alarm to the complainant. In order to attract the ingredients of Section 506 I.P.C., the intention of the accused must be to cause alarm to the victim. Mere expression of words without any intention to cause alarm would not suffice. Mere vague and bald allegations that the accused threatened the victim with dire consequences is not sufficient to attract the provisions under Section 506 I.P.C. The threat should be a real one and not just a mere word when the person uttering does not exactly mean what he says and also when the person against whom the threat is launched, does not feel threatened actually. It should appear that the complainant was feeling fear for his life. In the case of Mahadev Prasad Kaushik Vs. State of U.P. (2008) 14 SCC 479, the Apex Court quashed the proceedings initiated against the appellants for the offences punishable under Sections 504 and 506 I.P.C. on the ground that there was no whisper about the threat alleged to have been given by the appellant to the complainant in the order passed by the Magistrate.

The record in the present case also shows that the learned Magistrate while passing the summoning order dated 12.11.2003, has not recorded even a prima facie finding about any threat as alleged by the complainant. A perusal of the aforesaid impugned order shows that Section 506 of I.P.C. has not even been mentioned in the first paragraph of the aforesaid impugned order. The statements of the complainant and the witnesses show that except vague and bald allegations, there is nothing to show that the complainant was actually threatened by the alleged threat which caused alarm.

Under the aforesaid circumstances, no offence under Section 506 of I.P.C. is made out against the applicants and the application deserves to be allowed. The application is allowed. Accordingly, the entire proceedings of Criminal Case No.2172 of 2003 (Vishnu Pujan Singh Vs. Chandra Shekhar Singh and others) under Sections 506 and 406 I.P.C. are quashed.

Order Date :-2.8.2017-SB