Lal Sharma & ANR. Vs. Monica  INSC 1282 (27 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. OF
2009 [Arising out of Special Leave Petition (Crl.) Nos. 4125-4126 of 2008]
BHASKAR LAL SHARMA & ANR. ...APPELLANTS Versus
Monica married Vikas Sharma (Vikas), son of the appellants herein. Vikas was a
divorcee. He obtained the decree of divorce on or about 8th July, 2003 passed
by the Civil Court in Lubumbashi, Congo.
two children born on 23rd April, 1999 and 8th July, 2000 respectively from his
Indisputably, Vikas as also the appellants are engaged in the family business
of import and export of about 150 commodities. Vikas was the Managing Director
of the family managed Company since 1994 having its operating business places
at Delhi, Bangkok, Shanghai, Brussels, Johannesburg, Kinshasa, Lubumbashi,
Uganda, etc. Vikas and the appellants ordinarily live in Congo. They have a
residential house also at Lajpat Nagar, New Delhi.
between Vikas and the respondent - Monica took place through an agency known as
`Sycorian Matrimonial Services'. The marriage took place at Sanatan Dharam
Mandir Hall, Delhi on 16.1.2004. It was also registered with the Registrar of
Marriages, MB Road Saket, New Delhi on 22.1.2004. Immediately thereafter, i.e.,
on or about 25.1.2004, the couple left India and stayed in Johannesburg, South
Africa for about 10 days. They thereafter left for Lubumbashi, Conga, Africa.
They stayed there for 2 months in their matrimonial home. The relationship
between the parties was cordial during that period.
came back to India on 5.4.2004. She stayed at her matrimonial home at Lajpat
Nagar, New Delhi till 10.5.2004 with the 3 appellants. She again left for
Lubumbashi, Africa to join her husband.
the relationship between the parties deteriorated thereafter. They came back to
India on 21.5.2004. Monica allegedly took all her belongings from Congo
including clothes and the jewelry which she had been carrying.
about 26.5.2004, Vikas and the respondent visited Dr. Nagpal, a psychiatrist at
Vim Hans Hospital for consultation to ascertain the reason for the
non-compatibility and discord between them. Dr. Nagpal advised them to make
their matrimonial life successful.
left for Congo on 27.5.2004 hoping that Monica would change her mind in regard
to the future of their marriage and they should take a decision in regard to
her going back thereto later. She, however, for one reason or the other, went
to her parent's house on 14.6.2004 and took all her belongings including the
jewelry articles which she had been carrying.
during that period, appellant No.2 humiliated her by various acts to which we
would advert to a little later.
borne out from the records that during this entire period including the period
after she left her matrimonial home in June 2004, parties communicated with
each other through e-mails.
filed a complaint marked as Complaint No. 287/1A under Sections 498A, 406 and
34 of the Indian Penal Code (for short, "IPC") against her husband
Vikas and the appellants on 9.9.2004. On the same day, an application for grant
of maintenance was also filed in the Court of learned Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi under Section 125 of
the Code of Criminal Procedure (for short, "the Code") claiming
maintenance of a sum of Rs.2 lakhs per month as also an order of an interim
maintenance of Rs.2 lakhs per month till the disposal of the case.
examined by the learned Metropolitan Magistrate Patiala House, New Delhi on
30.11.2004. Evidences were recorded whereafter summons had been issued on
21.3.2005 by the learned Metropolitan Magistrate. Her application for grant of
interim maintenance was also allowed by the learned Metropolitan Magistrate by
an order dated 10.5.2005 and granted interim maintenance at the rate of
Rs.5,000/- per month.
bailable warrants of arrest were also issued against the appellants as also
Vikas on 29.6.2005.
respondent being not satisfied with the quantum of maintenance as granted by
way of an interim arrangement filed a Revision Application before the High
Court marked as Criminal Revision No. 452 of 2005 5 seeking increase in the
maintenance granted by the learned Metropolitan Magistrate. The High Court
enhanced the amount of compensation of interim maintenance to Rs.50,000/- per
month. The amount of maintenance has since been fixed at Rs.50,000/- per month
by the said Court.
about 2.8.2005, appellants as also Vikas filed application marked as Criminal
(Misc.) No. 3673-75 of 2005 under Section 482 of the Code before the Delhi High
Court for quashing the order directing issuance of non-bailable warrants
against them. The High Court by its order dated 8.8.2005 stayed the order issuing
non-bailable warrants against the appellants with an undertaking that Vikas and
appellants would appear before the learned Magistrate.
along with Vikas also filed an application marked as Criminal (Misc.) Main No.
4742 of 2005 under Section 482 of the Code for quashing of the summoning order
dated 21.3.2005 passed by the learned Magistrate in Complaint No.287/1A
summoning them for attending the trial court under Sections 498A, 406 and 34 of
3.10.2005, appellants and their son came to India; they appeared before the
learned Magistrate; they were admitted to bail.
High Court by its order dated 4.10.2005 passed in Criminal Revision No. 452 of
2005 directed impounding of the passport of Vikas stating that the efforts were
being made for reconciliation. Admittedly talks of reconciliation failed. The
High Court modified the said finding stating that the marriage seems to have
broken down irretrievably and directed return of the passport to him by an
order dated 6.10.2005. Pursuant to the liberty granted by the High Court,
appellants as also Vikas filed an application on 15.10.2005 for permission to
go abroad, which was allowed subject to the condition that additional bank
guarantees be furnished of Rs.1 lakh for each of the applicant.
challenged the said order before the High Court which was dismissed by an order
21.11.2005, Monica filed a Criminal Complaint No.574/1 under Section 420 of the
IPC against the appellants and Vikas inter alia alleging all material facts
relating to the first marriage and divorce and in particular the fact that the
first wife of Vikas in her divorce suit alleged acts of cruelty on the part of
her husband had not been disclosed.
12.12.2005, Monica challenged the order of the Delhi High Court dated
18.10.2005 before this Court by way of Special Leave Petition (Criminal) No.
6015-6016 of 2005, which was dismissed by an order dated 12.12.2005.
the same, Monica filed another petition before the High Court under Section 482
of the Code inter alia praying that the learned trial court may be directed not
to release the passport of Vikas till the application filed by her under
Section 340 of the Code is disposed off.
petition marked as Criminal Misc. (Main) No. 519 of 2006 was filed by her for a
direction upon the learned trial court to dispose of the case filed by her
under Sections 498A/406 IPC and 420 IPC within a time frame of about 3 months
and the appellants as also Vikas be directed to submit all the papers relating
to their properties in India before the learned trial court.
Court by its order dated 7.2.2006 dismissed the petition filed by the
respondent with costs.
20.3.2006, the learned Metropolitan Magistrate, New Delhi took cognizance of
the complaint No. 574/1 under Section 417/415 IPC as the allegations were not
made out under Section 420.
27.3.2006, the order dated 7.2.2006 passed by the High court was challenged by
the respondent before this Court by way of Special Leave Petition (Criminal)
No.1220 of 2006, which was dismissed with a direction to the trial court to
expedite the proceedings.
for one reason or the other (appellants had given some explanation in this
behalf in the Special Leave Petition) appellants having failed to attend the
court of the learned Metropolitan Magistrate, Monica filed an application for
attachment of the ancestral property of the first appellant. Interpol also was
sounded. Orders were passed for attachment of the property in terms of Section
83 of the Code situated both at Delhi as also the ancestral house of the first
appellant at Jaipur. Although the order of attachment so far as the Jaipur
property is concerned is said to have been passed in terms of Section 83(4)(c)
of the Code, Monica allegedly forged the said order to show that the order of
attachment has been passed in terms of Section 83(4)(a) thereof.
of the first appellant lodged a First Information Report ("FIR") with
Moti Dungri Police Station, Jaipur. We are, however, not concerned with the
said case at present.
on 17.11.2007, Monica filed a petition under Section 9 of the Hindu Marriage Act,
1955 seeking for restitution of conjugal rights
marked as Case No. 683 of 2007, which is pending in the Court of learned
Additional District Judge, Tis Hazari, New Delhi.
place on record that at the instance of Monica several attempts have been made
for reconciliation of matrimonial dispute between her and Vikas.
also place on record that applications dated 9.5.2008 and 31.5.2008
respectively were also filed before this Court by the respondent for mediation
Chandan Sharma, another son of the appellants came from Hong Kong to India for
that purpose. Monica, however, insisted that appellant No.1 himself should come
to India before her husband Vikas comes, which was not acceptable to the
appellants as the reconciliation of the disputes was to take place between
Monica and her husband Vikas.
10 We may
notice that even this Court in the transfer petition filed by Monica being
Transfer Petition (Crl.) No. 258 of 2007 by its order dated 4.2.2008 impleaded
Union of India through Ministry of External Affairs as a party and learned
Additional Solicitor General appearing for Union of India made a statement
before this Court on 11.4.2008 that Emergency Travel Documents would be made
available to Vikas and upon his arrival a regular passport would be issued.
Interpol/Ministry of External Affairs were directed not to enforce the Red
Corner Notice against Vikas Sharma.
thereto Vikas traveled to India.
9.5.2008, Vikas appeared before this Court in Transfer Petition (Criminal) No.
258/2007 and this Court by an order dated 9.5.2008 directed the complainant and
Vikas to report to the Senior Coordinator of the Mediation Cell at Tis Hazari
Courts, Delhi to explore the possibilities of resolving/settlement of their
matrimonial discord. Pursuant thereto the parties appeared before the learned
Senior Mediator and the mediation processes were resorted to one day to day
basis. Indisputably however, the said negotiation failed. The matter was listed
before this Court on 11 11.6.2008. The parties were given an opportunity to
reconcile their disputes.
they could not arrive at any settlement.
Court by reason of the impugned order dated 21.1.2008 dismissed the application
for quashing the summoning order dated 21.3.2005 filed by the appellants herein,
In order to attract the offence under Section 498A it would have to be proved
that the wife was subjected to cruelty which could include mental cruelty.
Whether the conduct was such as to cause grave injury or danger to the mental
health of the woman are all matters to be examined only after the detailed
evidence is led by the prosecution. At this stage, when a prayer is made for
quashing of the criminal proceedings, this Court is not expected to go through
the pre-summoning evidence in great detail and determine whether in fact all
the ingredients of the offence as set out under Section 498A are actually made
out or not.
Likewise the submission of the petitioners regarding non-entrustment of
property to them by the complainant for the purposes of attracting the offence
under Sections 403 read with 406 IPC is without merit. It was attempted to be
shown by learned counsel for the petitioner that there is no specific averment
that property was entrusted by the complainant to either of these petitioners
or that they had criminally misappropriated the same.
Court is unable to agree. The averments in paras 16, 24 and 29 of the complaint
when read taken collectively do indicate that the property which belonged to
the complainant was, according to the complainant, in the possession of the
Petitioners and on demand they refused to return 12 such property. At this
stage, in order to examine if the complaint makes out a prima facie case, it is
not necessary to go into the fine details and determine whether what is stated
in the complaint is true or not.
this context the observations of the Supreme Court in Rashmi Kumar v. Mahesh
Kumar Bhada (1997) 2 SCC 397 would be relevant. In that case while examining
Section 406 in some detail, this Court observed as under (SCC p. 407): The
expression entrustment carries with it the implication that the person handing
over any property or on whose behalf that property is handed over to another,
continues to be its owner.
is not necessarily a term of law. It may have different implications in
different contexts. In its most general signifance, all its imports is handing
over the possession for some purpose which may not imply the conferment of any
proprietary right therein. The ownership or beneficial interest in the property
in respect of which criminal breach of trust is alleged to have been committed,
must be in some person other than the accused and the latter must hold it on
account of some person or in some way for his benefit."
Pahwa, the learned counsel appearing on behalf of the appellants urged that the
High Court committed a serious error in passing the impugned judgment insofar
as it failed to take into consideration that:
complaint petition even if given face value and taken to be correct in its
entirety does not disclose commission of offences 13 either under Section 498A
or Section 406 of the IPC so far as the appellants are concerned;
order summoning the appellants passed by the learned Metropolitan Magistrate,
New Delhi dated 21.3.2005 would categorically show that there has been a
complete non- application of mind on the part of the learned Magistrate;
High Court failed to consider the e-mails exchanged between the parties which
were annexed to the complaint petition itself. Had the said e-mails been taken
into consideration, it could have been shown that no allegation of dowry demand
or misappropriation of her Streedhan had been made therein;
complaint petition does not disclose that any dowry has been demanded by the
appellants or any act on their part was likely to drive the woman to commit
suicide; which are the requisite ingredients in regard to commission of an
offence under Section 498A of the IPC.
two purported instances have been given with regard to alleged commission of an
offence against the appellant No.1 14 and so far as the appellant No.2 is
concerned, the allegations are only general in nature.
FIR in question and other spate of litigations started by Monica against her
husband and her parents-in-law clearly show acts of mala fide on her part
inasmuch as she not only filed the complaint petition in question but also
filed an application for grant of maintenance, a complaint petition under Section
420 of the IPC wherein an order of summoning had been issued as also an
application under Section 9 of the Hindu Marriage Act, 1955 for the purpose of
harassing her in-laws but at the same time she had been asking for mediation of
their matrimonial dispute.
Vinay Malhotra, the mother of the respondent, on the other hand, urged that:
appellants had been harassing and torturing the respondent in a systematic and
planned manner to break her marriage with their son so as to compel her to
agree for a divorce on receiving some amount.
Stridhan was entrusted to the appellants/their son and non- return thereof had
been used as a coercive method to meet the unlawful demand of extracting
divorce by mutual consent iii. Appellants had been taking different stands at
different time as although no statement has been made before the High Court
that they had returned the stridhan to the respondent; such a stand has been
taken for the first time in the Special Leave Petition.
respondent in her testimony having stated that the appellants had refused to
call their son to India and had refused to return the Stridhan unless the
proposal for divorce by mutual consent was accepted by her, sufficiently
established the offence against them.
appellants having admitted offering of money to the respondent for obtaining
divorce by mutual consent must be held to be guilty of commission of offences.
appellants having offered a sum of Rs.25 lakhs for divorce by mutual consent
would clearly go to show their mind-set that 16 they have been considering the
marriage only in monetary terms and not of any emotional values.
Parliament by Act No. 46 of 1983 with a view to combat the menace of dowry
deaths and harassment to woman at the hands of her husband or his relatives
introduced Section 498A and Section 304B in the IPC.
reads as under:
Husband or relative of husband or a woman subjecting her to cruelty.-- Whoever,
being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine."
`Explanation' appended thereto defines cruelty to mean: (i) any willful conduct
which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health whether mental or
physical of the woman; or (ii) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand.
the essential ingredients of the aforementioned provisions are:
woman must be married.
must be subjected to cruelty.
Cruelty must be of the nature of:
willful conduct as was likely to drive such woman:
grave injury or danger to her life, limb, either mental or physical;
harassment of such woman, (1) with a view to coerce her to meet unlawful demand
for property or valuable security, (2) or on account of failure of such woman
or by any of her relation to meet the unlawful demand, (iii) woman was
subjected to such cruelty by: (1) husband of that woman, or (2) any relative of
constitution an offence under Section 498A of the IPC, therefore, the
ingredients thereof must be held to be existing.
proving the offence under Section 498A of the IPC, the complainant must make
allegation of harassment to the extent so as to 18 coerce her to meet any
unlawful demand of dowry, or any willful conduct on the part of the accused of
such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health. We do not find any such
allegation has been made or otherwise can be found out so as to enable us to
arrive at an opinion that the appellants prima facie have committed such an
complaint petition must also be read with several other documents which form
part of the complaint petition. The children from the first wife of Vikas were
with Monica. Vikas affirmed an affidavit so as to enable Monica to apply for
their passports. Vikas, therefore, wanted to have children with them.
sent an e-mail on 5.6.2004 to his mother stating that Vikas sent an e-mail to
her on 4.6.2004, which reads thus:
worry everything will be fine. I am very happy to have found a person like you,
who loves durjaya and surya like me. Mona, pls. pray to Krishna to help me and
help us to do the right thing. I want to change my life to better, I want to
become a sincere devotee of the Lord, I never want to drink again, it puts me
down. I want to pray regularly, we must organize our time together to pray to
the lord, we must serve him together and 19 everything will be alright. Pls.
try to go everyday to the temple and pray to the Lord for us and our children,
don't worry all will be ok. I am sorry to have caused you so much pain, I will
make it up to you, promise. I love you my dear, take care.
e-mail sent to everybody concerned explaining her behaviour vis-`-vis those of
Vikas, she referred to even the e-mails which was sent by Vikas to her to his
It is not
possible for us to deal with the contents of the e-mails in great details but
it is evident that the couple had developed incompatibility in respect of
various aspects of life including the one as to whether Monica did a favour to
Vikas by marrying him. They also include the children, her going out of the
home without informing any senior member of the house, allegation of extra
marital affairs against Vikas; her taking of detergent powder evidently to
commit suicide; they had been staying in separate rooms, differences in respect
of carrying of business, her becoming hysterical at some point of time. Vikas
even thought that she had been trying to black-mail him by refusing to go back
to India and threatening to commit suicide. The e-mails shows allegations,
counter allegations and 20 explanations by Monica in relation thereto. In an
e-mail dated 19.6.2004 by Vikas, it was stated:
have given a lot of thought to our situation and as you told me many times
before and yesterday also, that may be it is better that we split, I think that
yes it is better to do so. We both are not at all compatible to each other
monica. And it is not a wise decision to live this kind of life. I am not
interested to living 2 different lives in the same house as you had once
commented, I think this was on our first flight to Dubai. Anyway Monica I don't
want any more of this and neither do you, we both have a lot of things we can
do with our lives, and I want to carry on now.
I am also
going to leave congo and go somewhere else, I am presently talking to dad about
going on my own, but its not easy as I don't have any money and only dad can
give me something to help me, anyway, congo is finished, I hate that place.
I am not
blaming you for anything, but it is better that we part, you also know this is
better, and better to swallow the pain now then live our lives like this.
In one of
the e-mails Vinay Malhotra alleges humiliation by appellant No.2.
21 On 14.8.2004,
Vikas writes to his father-in-law by e-mail, which reads as under:
have never written nasty emails to your daughter, on the contrary I always
respected her and sent her lovely and sometimes erotic emails to light up our
love life. But her nagging and lies that she has kept on telling you have made
it difficult for me to try to live with a person like her. Your daughter on
many occasions threatened me by trying to suicide for example trying to jump
out of a running car, drinking poisonous substance, breaking things in my
house, etc. When she does not get her way she goes bizark. And not only with me
but on several occasions she fought with my parents, this for me is difficult
to accept. I have always been truthful to you and her, and if you think
otherwise then do as you please. I am not interested in continuing my
relationship with your daughter, this is how I feel and I believe that we would
not be happy together.
already asked my parents to speak to you and do what has to be done in a
daughter thinks that I have insulted her or hurt her in anyway then frankly she
has some mental problem, I have done nothing wrong, if I had done so then why
until last week she was so eager to come back to me, when I have told her
already that I don't think we can live together. I will not be coming to India.
I am too busy and I have asked my parents to settle this with you, please
remember that if you try to throw dirt on me I will not stay put, I will
protect my reputation.
go as far as you want, I don't fear anything because I have nothing to fear.
that you will do what is best for everyone, the ball in is your court."
counter allegation was made by Anil Malhotra to Vikas, which reads as under:
marriage things went well for some time and then suddenly you started crying
foul. You along with my daughter came back to India on 25th May 2004. You
profusely apologized for treatment meted out to my daughter and reassured to
behave in future and that you were a gentleman. You and my daughter stayed at
your parents place during your India visit when things appeared to be falling
in line. You left for Africa on 27th May 2004 leaving behind my daughter at
your parental house so that she could spend some time with your parents and
then join you in South Africa after 10 days. After returning to Africa, for some
time you kept on sending apologetic emails to my daughter and then suddenly you
told my daughter that you were tired of hearing trivial complaints against her
from your mother. Thereafter, you started writing nasty emails to my daughter,
which is to your knowledge.
purpose of my writing this email is to express that anything that has to be
done should be done with a human face. For that matter you should come to India
within a week's time.
you to re introspect may be a futile exercise. Rest assured, we are capable of
meeting any situation in dealing with a gentleman or a deceit.
to reply to this email."
are many more e-mails exchanged between the couple as also their parents.
However, in none of them any allegation with regard to cruelty or breach of
trust had been made. Such allegations are made for the first time in the
complaint petition as also in the application for grant of maintenance.
in her complaint petition, made the following allegations against the
appellants, which we may notice:
No.1 Appellant No.2 SH. BHASKAR LAL SHARMA - SMT. VIMLA SHARMA - FATHER IN LAW
(MOTHER IN LAW)
1. He threatened
the Complainant to 1. She sent only two unmarried girls finish her relationship
with Mr. for Shagun instead of seven (page Vikas Sharma as she was trying to
42) control their house, children and the business (page 57)
offered divorce by mutual 2. She said that she would like the consent on the
payment of Rs.25 lacs function of Engagement Ceremony as compensation. He also
refused to to be organized in a 5 Star Hotel return the clothes/jewelry unless
the (page 43) divorce by mutual consent is granted by the complainant (Page 63)
also advised the respondents to hold the marriage ceremony at Iscon Temple
also took all the gifts/cash given by the invitees/guests (page 46)
made complaints on trivial matters. She kicked the respondent with her leg and
told that her mother is a liar (page 51)
poisoned the ears of her son (page 52).
gave two used lady suits of her daughter to the Complainant (page 57).
gave perpetual sermons to the Complainant (page 58)
told her son Vikas Sharma over phone that kids do not like anything prepared by
the Complainant (page 59)
humiliated and harassed by 25 repeatedly saying that her son would be divorced
for the second time whereas the Complainant would be divorced for the first
no case has been made out under Section 498A of the IPC so far as the appellants
allegations relating to the place where the marriage took place has nothing to
do with an offence under Section 498A of the IPC. Allegations that appellant
No.2 kicked the respondent with her leg and told her that her mother to be a
liar may make out some other offence but not the one punishable under Section
498A. Similarly her allegations that the appellant No.2 poisoned the ears of
her son against the respondent; she gave two used lady suits of her daughter to
the complainant and has been given perpetual sermons to the complainant could
not be said to be offences punishable under Section 498A. Even threatening that
her son may be divorced for the second time could not bring out the offence
under Section 498A of the IPC.
of the aforementioned provision came up for consideration in some of the
decisions of this Court. We may notice a few.
Noorjahan vs. State rep. by D.S.P, [(2008) 11 SCC 55], this Court held:
Consequences of cruelty which are likely to drive a woman to commit suicide or
to cause grave injury or danger to life, limb or health, whether mental or
physical, of the woman is required to be established in order to bring home the
application of Section 498-A IPC. Cruelty has been defined in the Explanation
for the purpose of Section 498-A.
Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been
inserted in the respective statutes by the Criminal Law (Second Amendment) Act,
1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be
mutually inclusive. These provisions deal with two distinct offences. It is
true that cruelty is a common essential to both the sections and that has to be
proved. The Explanation to Section 498-A gives the meaning of "cruelty".
object for which Section 498-A IPC was introduced is amply reflected in the
Statement of Objects and Reasons while enacting the Criminal Law (Amendment)
Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of
dowry deaths is a matter of serious concern. The extent of the evil has been
commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961.
In some cases, cruelty of the husband and the relatives of the husband which
culminate in suicide by or murder of the helpless woman concerned, constitute
only a small fraction involving such cruelty. Therefore, it was proposed to
amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably
to deal effectively not only with cases of dowry deaths but also cases of
cruelty to married women by the husband, in-laws and relatives. The avowed
object is to combat the menace of dowry death and cruelty."
observed in the fact situation obtaining therein:
"18. So far as the present appellant is concerned, the evidence is
inadequate to show that she was party to any demand for dowry. In fact, PW 1
stated that when she went to the place of her daughter the appellant was
present along with A-1 and A-2. The said A-1 demanded jewels and presentation
of Rs. 5000 for Ramzan. She accepted that she told A-1 and A-2 that she will
send the same within a week. The next statement of this witness is very
significant. She (the appellant) told that two months' time will be sufficient
for offering the presentation. In other words, she did not make any demand for
dowry. That aspect has been accepted by PW 1. Significantly, this witness in
her cross-examination had admitted that the appellant is residing at Coimbatore
for the last 35 years. She has categorically admitted that while she went to
the house of her daughter, she (the appellant) was not present. Therefore,
there is no evidence to show that the appellant was either present when the
demand was made or she herself made any demand."
Kumar Sharma vs. Union of India & Ors. [(2005) 6 SCC 281], this Court held:
The object for which Section 498-A IPC was introduced is amply reflected in the
Statement of Objects and Reasons while enacting the Criminal Law (Second
Amendment) Act 46 of 1983. As clearly stated therein the increase in the number
of dowry deaths is a matter of serious concern. The extent of the evil has been
commented upon by the Joint Committee of the Houses to examine the work of the
Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the
relatives of the husband which culminate in suicide by or murder of the
helpless woman concerned, constitute only a small fraction involving such
cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal
Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to
deal effectively not only with cases of dowry deaths but also cases of cruelty
to married women by the husband, in-laws and relatives. The avowed object is to
combat the menace of dowry death and cruelty.
object of the provision is prevention of the dowry menace. But as has been
rightly contended by the petitioner many instances have come to light where the
complaints are not bona fide and have been filed with oblique motive. In such
cases acquittal of the accused does not in all cases wipe out the ignominy
suffered during and prior to trial. Sometimes adverse media coverage adds to
the misery. The question, therefore, is what remedial measures can be taken to
prevent abuse of the well-intentioned provision. Merely because the provision
is constitutional and intra vires, does not give a licence to unscrupulous
persons to wreak personal vendetta or unleash harassment. It may, therefore,
become necessary for the legislature to find out ways how the makers of
frivolous complaints or allegations can be appropriately dealt with. Till then
the courts have to take care of the situation within the existing framework. As
noted above the object is to strike at the roots of dowry menace. But by misuse
of the provision a new legal terrorism can be unleashed.
provision is intended to be used as a shield and not as an assassin's weapon.
If the cry of "wolf" is made too often as a prank, assistance and
protection may not be available when the actual "wolf" appears. There
is no question of the investigating agency and courts casually dealing with the
allegations. They cannot follow any straitjacket formula in the matters
relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that
the ultimate objective of every legal system is to arrive at the truth, punish
the guilty and protect the innocent. There is no scope for any preconceived
notion or view. It is strenuously argued by the petitioner that the
investigating agencies and the courts start with the presumptions that the
accused persons are guilty and that the complainant is speaking the truth. This
is too wide and generalised a statement. Certain statutory presumptions are
drawn which again are rebuttable. It is to be noted that the role of the
investigating agencies and the courts is that of a watchdog and not of a
bloodhound. It should be their effort to see that an innocent person is not
made to suffer on account of unfounded, baseless and malicious allegations. It
is equally undisputable that in many cases no direct evidence is available and
the courts have to act on circumstantial evidence. While dealing with such
cases, the law laid down relating to circumstantial evidence has to be kept in
jurisdiction of the High Court to quash an order of summoning and/or a criminal
proceeding as also this Court are well known. The parties have relied upon the
decisions of this Court in State of Haryana vs. Bhajan Lal [1992 (Supp.) 1 SCC
335]. We may notice the categories 1, 3, 5 and 7 mentioned in Para 102 of the
said decision, which are as under:
Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against the accused.
xxx (3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission of
any offence and make out a case against the accused.
xxx (5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
xxx (7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge."
also Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu & Anr.
[2009 (4) SCALE 685], Kailashi Bai vs. Aarti Arya & Anr. [2009 (7) SCALE
304} Does this case fall under any of the categories is the question.
however, we consider the necessary ingredients of the aforementioned dicta
vis-`-vis the facts involved in the present case, we may also notice some other
decisions of this Court.
Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr. [2008 (1) JCC 65],
this Court opined as under:
In the present case, from a plain reading of the complaint filed by the
complainant on 8-11-1994, extracted above, it is clear that the facts mentioned
in the complaint, taken on their face value, do not make out a prima facie case
against the appellants for having dishonestly misappropriated the stridhan of
the complainant, allegedly handed over to them, thereby committing criminal
breach of trust punishable under Section 406 IPC. It is manifestly clear from
the afore extracted complaint as also the relevant portion of the charge-sheet
that there is neither any allegation of entrustment of any kind of property by
the complainant to the appellants nor its misappropriation by them.
it is also noted in the charge-sheet itself that the complainant had refused to
take articles back when this offer was made to her by the investigating
officer. Therefore, in our opinion, the very prerequisite of entrustment of the
property and its misappropriation by the appellants are lacking in the instant
case. We have no hesitation in holding that the learned Additional Sessions
Judge and the High Court erred in law in coming to the conclusion that a case
for framing of charge under Section 406 IPC was made out.
regards the applicability of Section 498-A IPC, in the complaint dated
8-11-1994 there is not 31 even a whisper of a wilful conduct of Appellants 1
and 2 of harassment of the complainant at their hands with a view to coercing
her to meet any unlawful demand by them so as to attract the provisions of
Section 498-A read with Explanation thereto. The complaint refers to the talk
the complainant purports to have had with her husband, Appellant 3, who is
alleged to have told her to come to Bijnore if she apologises to his father;
keeps him happy; obeys his sister and talks to her father (the complainant's)
to give her Rs.50,000 and VCR and brings these articles to Bijnore. We are
convinced that the allegation of misbehaviour on the part of Appellants 1 and 2
and the demand of Rs. 50,000 and VCR by them made by the complainant in her
subsequent statement dated 4-4-1995, was an afterthought and not bona
& Ors. vs. State of T.N. [(2005) 3 SCC 507], it was opined:
Before we proceed to deal with the two contentions relating to limitation and
territorial jurisdiction, we would like to consider first the contention
advanced on behalf of the appellant Gowri Ramaswamy. Looking at the allegations
in the FIR and the contents of charge-sheet, we hold that none of the alleged
offences viz. Sections 498- A, 406 IPC and Section 4 of the Dowry Prohibition
Act are made out against her. She is the married sister of the informant's
husband who is undisputedly living in Delhi with her family.
that during the relevant time i.e. between March and October 1997, when the 6th
respondent (informant) lived in Mumbai in her marital home, the said lady
stayed with them for some days, there is nothing in the complaint which connects
her with an offence under Section 498-A or any other offence of which
cognizance was taken. Certain acts of taunting and ill-treatment of the
informant by her sister-in-law (the appellant) were alleged but they do not
pertain to dowry demand or entrustment and misappropriation of property
belonging to the informant. What was said against her in the FIR is that on
some 32 occasions, she directed the complainant to wash WC and she used to
abuse her and used to pass remarks such as "even if you have got much
jewellery, you are our slave". It is further stated in the report that
Gowri would make wrong imputations to provoke her husband and would warn her
that nobody could do anything to her family. These allegations, even if true,
do not amount to harassment with a view to coercing the informant or her
relation to meet an unlawful demand for any property or valuable security. At
the most, the allegations reveal that her sister-in- law Gowri was insulting
and making derogatory remarks against her and behaving rudely against her. Even
acts of abetment in connection with unlawful demand for property/dowry are not
alleged against her. The bald allegations made against her sister-in-law seem
to suggest the anxiety of the informant to rope in as many of the husband's
relations as possible. Neither the FIR nor the charge-sheet furnished the legal
basis to the Magistrate to take cognizance of the offences alleged against the
appellant Gowri Ramaswamy.
Court ought not to have relegated her to the ordeal of trial. Accordingly, the
proceedings against the appellant Gowri Ramaswamy are hereby quashed and her
appeal stands allowed."
Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu & Anr.
[supra], it is stated:
The aforesaid discussion clearly pin-point the legal position on the subject
which is by now well settled. The principle that could be culled out is that
when at an initial stage a prosecution is asked to be quashed, the test to be
applied by the court is as to whether the uncontroverted allegations as made in
the complaint filed prima facie establish the offence. It is also for the court
to take into consideration any special feature that may appear in a particular
case while considering 33 whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on the basis that the court
cannot be utilized for any oblique purpose. The tests that are laid down in the
case of Bhajan Lal (supra) are required to be applied very carefully and
minutely when a prayer for quashing is laid down before the Court."
Devendra & Ors. vs. State of U.P. & Anr. [2009 (7) SCALE 613], it has
There is no dispute with regard to the aforementioned propositions of law.
However, it is now well-settled that the High Court ordinarily would exercise
its jurisdiction under Section 482 of the Code of Criminal Procedure if the
allegations made in the First Information Report, even if given face value and
taken to be correct in their entirety, do not make out any offence. When the
allegations made in the First Information Report or the evidences collected
during investigation do not satisfy the ingredients of an offence, the superior
courts would not encourage harassment of a person in a criminal court for
has been placed by Mr. Malhotra on the decision of this Court in Mahila Vinod
Kumari vs. State of Madhya Pradesh [2008 (10) SCALE 97]. We are not concerned
with the same as the same deals with the question of perjury.
complainant further did not stop there but also filed a complaint petition that
she was cheated as Vikas and his parents did not disclose about his marital
state of affairs in regard to the first marriage and/or the decree of divorce
obtained by him. We do not intend to make any comment with regard to the
correctness or otherwise of the statements made therein as the matter is not
however, made note of the litigations filed between the parties in great
detail. These litigations, if a holistic view is taken, depict a sad state of
affairs, namely, that the respondent, on the one hand, intends to take all
coercive measures to secure the presence of her husband and the appellants in
India in various cases filed by her and, on the other hand, she had repeatedly
been making attempts of conciliation.
were made by the Delhi High Court as also this Court at various stages. The
High Court, as indicated hereinbefore, in its order dated 6.10.2005 passed in
Criminal Revision No. 452 of 2005 categorically held that the marriage has
irretrievably broken down. Be that as it may, we are of the opinion that
keeping in view the ingredients of the provisions of Sections 498A of the IPC,
no case has been made out against the appellants herein.
35 We may
now consider the question as to whether the complaint petition discloses any
offence under Section 406 of the IPC.
outset, we may notice as to what is `Streedhana' In Rashmi Kumar (Smt.) vs.
Mahesh Kumar Bhada [(1997) 2 SCC 397], the meaning of Stridhana has been taken
from Mayne's Hindu Law &
(13th Edn.). It was opined:
A woman's power of disposal, independent of her husband's control, is not
confined to saudayika but extends to other properties as well.
says: "A woman's maintenance (vritti), ornaments, perquisites (sulka),
gains (labha), are her stridhana. She herself has the exclusive right to enjoy
it. Her husband has no right to use it except in distress...." In N.R.
Raghavachariar's Hindu Law -- Principles and Precedents, (8th Edn.) edited by
Prof. S. Venkataraman, one of the renowned Professors of Hindu Law para 468
deals with "Definition of Stridhana". In para 469 dealing with
"Sources of acquisition" it is stated that the sources of acquisition
of property in a woman's possession are: gifts before marriage, wedding gifts,
gifts subsequent to marriage etc. Para 470 deals with "Gifts to a
maiden". Para 471 deals with "Wedding gifts" and it is stated
therein that properties gifted at the time of marriage to the bride, whether by
relations or strangers, either Adhiyagni or Adhyavahanika, are the bride's
stridhana. In para 481 at page 426, it is stated that ornaments presented to
the bride by her husband or father constitute her Stridhana property. In para
487 dealing with "powers during coverture" it is stated that
saudayika meaning the gift of affectionate kindred, includes both Yautaka or
gifts received at the time of marriage as well as its negative Ayautaka. In
respect of such property, 36 whether given by gift or will she is the absolute
owner and can deal with it in any way she likes.
spend, sell or give it away at her own pleasure.
10. It is
thus clear that the properties gifted to her before the marriage, at the time
of marriage or at the time of giving farewell or thereafter are her stridhana
properties. It is her absolute property with all rights to dispose at her own
pleasure. He has no control over her stridhana property.
may use it during the time of his distress but nonetheless he has a moral
obligation to restore the same or its value to his wife. Therefore, stridhana
property does not become a joint property of the wife and the husband and the
husband has no title or independent dominion over the property as owner
expression "entrustment" carries with it the implication that the
person handing over any property or on whose behalf that property is handed
over to another, continues to be its owner.
is not necessarily a term of law. It may have different implications in
different contexts. In its most general significance, all its imports is
handing over the possession for some purpose which may not imply the conferment
of any proprietary right therein. The ownership or beneficial interest in the
property in respect of which criminal breach of trust is alleged to have been
committed, must be in some person other than the accused and the latter must
hold it on account of some person or in some way for his benefit...."
offence of criminal breach of trust as defined in Section 405 of the IPC may be
held to have been committed when a person who had been entrusted in any manner
with the property or has otherwise dominion over it, 37 dishonestly
misappropriates it or converts it to his own use, or dishonestly uses it, or
disposes it of, in violation of any direction of law prescribing the mode in
which the trust is to be discharged, or of any lawful contract, express or
implied, made by him touching such discharge, or willfully suffers any other
person so to do.
essential ingredients for establishing an offence of criminal breach of trust
as defined in Section 405 and punishable under Section 406 IPC with sentence
for a period up to three years or with fine or with both, are:
entrusting any person with property or with any dominion over property;
person entrusted dishonestly misappropriating or converting to his own use that
property; or dishonestly using or disposing of that property or wilfully
suffering any other person so to do in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal
contract made touching the discharge of such trust.
noticed heretobefore that the correspondences exchanged between the spouses or
by and between Vikas and his in-laws do not disclose any allegation which would
amount to criminal misconduct on the part of the appellants.
the aforementioned backdrop of events, we may now notice the allegations made
in the complaint petition filed by the respondent against the appellants.
allegation which brings the case within the purview of Section 406 is that
appellant No.2 had taken all the gifts/cash given by the invitees/guests.
Technically, this allegation would attract the definition of breach of trust
within the meaning of Section 405 of the IPC.
of some properties and/or dominion over them, if any, therefore, is attributed
only against the appellant No.2. Other allegations made against the appellants
are general in nature.
is said to have been made to the appellants and/or their son.
definite case of entrustment of any property has been made against the
only said to have given back to the complainant's parent the entire cloth and
jewelry. No demand was made by the respondent.
of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the
complainant, which is three times of the amount of the value of `Streedhana'
and/or amount spent by the complainant's father per se does not constitute any
offence of Section 406 of the Code.
gift made to the bridegroom or his parents - whether in accordance with any
custom or otherwise also would not constitute any offence under Section 406 of
of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457], it has been held:
Section 406 IPC deals with punishment for criminal breach of trust. In a case
under Section 406 the prosecution is required to prove that the accused was
entrusted with property or he had dominion over the property and that the
accused misappropriated or converted the property to his own use or used or
disposed of the property or willfully suffered any person to dispose of the
property dishonestly or in violation of any direction of law prescribing the
mode in which the entrusted property should be dealt with or any legal contract
express or implied which he had entered into relating to carrying out of the
Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab & Ors.[2009 (7)
SCALE 85]} We, therefore, are of the opinion that prima facie a case under
Section 406 of the IPC has been made out only against appellant No.2.
parting, we may observe that courts at all levels have made endeavours to bring
about a settlement between the parties. The High Court 40 in the earlier round
of proceedings probably rightly observed that the marriage between the Monica
and Vikas has irretrievably been broken down.
appeals are allowed to the extent mentioned hereinabove.
summoning order dated 21.3.2005 passed against the appellants except Appellant
No.2 is set aside. It is clarified that the proceedings can continue only
against the appellant No.2, that too in respect of Section 406 IPC only.
...............................J. [S.B. Sinha]
................................J. [Cyriac Joseph]