Manoj Misra, J.
1. Heard learned Counsel for the applicants; Sri S.K. Tiwari for the opposite party No. 2 and the learned AGA for the State. By the present application u/s 482 Cr.P.C., the applicants, who are five in number, being wife, mother in law, father in law, brother-in-law and other distant relatives, by marriage, of the opposite party No. 2 (the complainant), have sought quashing of the complaint and the proceedings, in pursuance thereof, pending as complaint case No. 833 of 2010 (Rinkoot V. Smt. Jyoti and others), u/s 406 IPC, in the Court of Additional Chief Judicial Magistrate, Court No. 2, Aligarh.
2. Earlier, this Court while entertaining the application, vide its order dated 2nd March 2012, issued notice to the opposite party No. 2 and gave time to file counter-affidavit. Thereafter, twice time was allowed to file counter affidavit, but no cou
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nter-affidavit has been filed even though the opposite party No. 2 had put in appearance through Sri S.K. Tewari Advocate. Learned Counsel for the applicants submitted that despite full information, the opposite party No. 2 has not turned up for filing counter affidavit, therefore, the matter may be decided on the basis of material available on record.
3. In view of the above, the matter has been heard and examined on the basis of material available on record.
4. A perusal of the record reveals that the opposite party No. 2, who is the husband of the applicant No. 1, filed an application u/s 156(3) Cr.P.C. for registering a First Information Report against the applicants, which was treated as a complaint. In the complaint, it has been alleged that on 18th February, 2010, the complainant's mother-in-law (Smt. Vimla Devi-applicant No. 2) and father-in-law (Bharat Singh-applicant No. 3) came to the complainant's house and informed the complainant that their son's marriage has been fixed and that they want that their daughter (the applicant No. 1) be sent with them so as to be able to attend the engagement ceremony. Thereupon, the complainant asked his mother for jewellery articles and gave them to his wife (applicant No. 1), who wore them and went away with her parents. It has also been alleged that complainant's father-in-law had asked for a sum of 10-15 thousand rupees, which could not be immediately arranged for by the complainant, but, subsequently the complainant gave a sum of Rs. 10 thousand to his father-in-law. It has been alleged that his father-in-law had invited the complainant also for the engagement ceremony and when the complainant went to his in-laws place, he found that there was no ceremony and upon his query, he was informed that the proposed marriage broke. It is alleged that thereafter the complainant requested his in-laws to send his wife with him, but they refused to send her with him and that when the complainant demanded for the jewellery articles and the money, the accused refused to return the same. On these allegations, which were supported by statements recorded under sections 200 and 202 Cr.P.C., the learned Magistrate summoned the applicants u/s 406 IPC, vide his order dated 8.4.2011.
5. The submission of learned Counsel for the applicants is that even if the complaint allegations are taken on their given face value no offence can be said to have been committed by the applicants. It has been submitted that no case of 'entrustment' is made out from the complaint allegations against any of the accused persons and since there is no evidence to support commission of any other offence, the complaint and the proceedings in pursuance thereof are liable to be quashed. It has been submitted that according to the own case of the complainant, jewellery articles were given by the complainant himself to his wife without any request on the part of his wife for the jewellery articles. It has not been alleged that at the time when the jewellery articles were handed over to the wife (applicant No. 1), the wife was made to understand that she was required to return the same on demand as those articles do not belong to her but they belong to her mother in law. It has been submitted that the jewelery articles were nothing but 'Stridhan' of the applicant No. 1, which she, in any case, is entitled to retain with herself, therefore, no offence can be said to be committed by her. It has also been submitted that so far as the allegation of an advance of Rs. 10,000/- and its non-return is concerned, that by itself would not make out an offence, inasmuch as, it has not been alleged that when the same was advanced, there was any assurance on the part of the father-in-law of the opposite party No. 2 that the said money would be returned back, therefore, neither there would be any 'entrustment' so as to justify proceedings u/s 406 IPC nor there would be any false misrepresentation on the part of the accused so as to justify drawing proceeding for an offence of cheating.
6. In reply to the aforesaid submission, learned Counsel for the opposite party No. 2 submitted that in the complaint it has been clearly mentioned that the jewelery articles belonged to the mother of the complainant, therefore, when a demand was made for return of the same, the accused were required to return the same and since they failed to do so, an offence punishable u/s 406 IPC is made out against them.
7. Having considered the submissions of learned Counsel for the parties and on perusal of the record, this Court finds that according to the own case of the complainant, the complainant had, on his own, handed over the jewelery articles to his wife. There is nothing in the complaint to show that at the time when the jewelery articles were handed over by the complainant to his wife, the wife was either aware or was made to understand that she was required to return the articles as they belong to the mother of the complainant. It is clear from the complaint allegations that the jewelery articles handed over to her were worn by her before leaving the house, which suggests that she considered the said jewelery articles to be her own. Since there is no averment either in the complaint or in the statement made in support thereof that the wife was made to understand that the jewelery which she was wearing was of her mother-in-law and not her, therefore, even if she retains the same, it cannot be said that she had any dishonest intention in retaining the same. For an offence punishable u/s 405 read with section 406 IPC, it is essential that there should be a dishonest misappropriation or conversion or disposal of any 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 a person to whom there is an entrustment has made touching the discharge of such trust.
8. As there is nothing in the complaint or in the statement recorded in support thereof that the wife was made to understand that she was not given her own jewelery articles but her mother-in-law's jewelery, which she was required to return, it cannot be said that there was any dishonest intention on her part, inasmuch as, it is well settled in law that the jewelery articles given by the in-laws to a daughter-in-law at the time of marriage would be considered/deemed be her 'Stridhan'. No doubt, in this case, it is not the case that the jewelery articles were given to the applicant No. 1 at the time of her marriage. But, in any case, they were allegedly given by her husband to be worn by her, without making her understand that she would be required to return them as they did not belong to her. In such a situation, where there is a presumption that jewelery articles are for the benefit of ladies and ordinarily are given by way of gift to the wife by her husband or other relatives, out of love and affection, in absence of specific allegation to show that they were entrusted to the wife for only a limited use, with a specific understanding that she would be required to return the same, it cannot be said that she had any dishonest intention so as to be liable for an offence of criminal breach of trust. From the facts given in the complaint and the statements in support thereof, this Court does not find commission of any offence by the applicants. The Court, accordingly, finds that the proceedings against the applicants are nothing but abuse of the process of the Court and, as such, the same deserve to be quashed. In view of the discussions made above, the application is allowed. The proceeding of the complaint case No. 833 of 2010 (Rinkoot v. Smt. Jyoti and others), u/s 406 IPC, in the Court of Additional Chief Judicial Magistrate, Court No. 2, Aligarh are hereby quashed. It goes without saying that decision of this Court will not prejudice the right of the complainant to take recourse to civil remedies.