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Judgment
Radhakrishna Rao, J.—This criminal revision case is filed against the judgment of the First Additional Metropolitan Sessions Judge, Hyderabad in Crl.A.No. 134/90 confirming the conviction of A-l and A-2 for an offence u/s 6 of the Dowry Prohibition Act and sentence to suffer R.I for one year and also pay a fine of Rs. 1,000/- I.D. to suffer S.I. for four months. They were further directed to return Rs. 75,000/- to P.W.2 within one month from the date of the order. The appellate court set aside the conviction and sentence of A-2 u/s 406 IPC.
The case of the prosecution in brief is as follows: A-1 and A-2 are brothers. P.W.I is the wife of A-l. A-l married P.W.I on2O-1-85 at Hyderabad as per Muslim Personal Law. Subsequently she was subjected to cruel treatment and later driven out of the house of A-l. Since 8-6-85 she was living with her parents. Prior to the marriage a sum of Rs. 75,000/- was paid towards Ghoda Joda Ki Rakam and it is alleged that the same was not returned in spite of demand and legal notices to the accused. It must be noted that after separation of A-l and P.W.I, A-l filed O.S.20/85 on the file of First Additional Magistrate and the same was decreed. The wife also filed a suit for dissolution of the marriage and the same was decreed. Subsequently she filed another suit at Hyderabad for return of an amount of Rs. 2,70,000/- and the same was decreed by the original court. An application to set aside that ex parte order has been filed and that was dismissed. Against that C.M.A.was filed and that was also dismissed. Supreme Court also dismissed the SLP So far as the claim with regard to Rs. 2,70,000/- is concerned a decree has been granted in favour of P.W.I and it has become final. The decree for dissolution of marriage has also become final. Now this case is filed u/s 6 of Dowry Prohibition Act alleging that a sum of Rs-.75,000/- was paid in two instalments on 16-12-84 and 6-1-85. The case of the accused is one of total denial.
The evidence of P.Ws.l to 3 is to the effect that a sum of Rs. 75,000/- was given towards Ghoda Joda in two instalments. Photographs were also taken at the time of payment. D.W.2 the wife of A-2 perused the photographs Exs.P-1 and P-2 and stated that the person shown in the photographs is her husband. Thus Exs.P-1 and P-2 amply corroborate the oral testimony of P.Ws.l and 2.. Another circumstance that has to be taken into consideration is Ex.P-7, a certificate issued by the Manager of Andhra Bank stating that P.W.2 has withdrawn Rs. 50,000/- from his S.B. Account on 15-12-84. It is the case of the prosecution that with the said amount they purchased a house at Erragadd,a in the name of D.W.2. Ex.P-5 is the sale deed which is executed on 17-12-84 i.e., one day after receiving the sum of Rs. 75,000/-. The consideration is shown as, Rs. 10,000/-. Though we are not concerned with the date of sale, as it coincides with the date of payment which is just one day prior to the date of sale strengthening the evidence of P.Ws.l to 3,1 feel that the courts below rightly held about the factum of payment of Rs. 75,000/-.
The learned counsel for the petitioners conterids that the amount paid towards Ghoda Joda must be treated as present but not part of the dowry amount. If the said amount is paid as a present they would have purchased the horse and the dress. But the case of the accused is one of total denial. The sum of Rs. 75,000/- paid towards Ghoda Joda cannot be treated as a present duly taking into account the circumstances under which the amount has been paid prior to the marriage. In the circumstances of the case the accused are not entitled for benefit of doubt.
Section 6 of the Dowry Prohibition Act states that where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman within the specified time. If any person fails to transfer any property as required by sub- section (1) within the time limit specified therefor, he shall be punishable with imprisonment or fine or both. It is the case of P.Ws.l to 3 that the amount of Rs. 75,000/- was paid for the welfare of A-l and P.W.I but not as a present. In the circumstances of the case this court finds that payment of Rs. 75,000/- to A-2 has been established and he failed to transfer the same as required under sub-section (1) of Section 6 of the Act. A 2 is the main person who took the money and purchased a house in the name of his wife with the above said money. In the circumstances, the conviction of A-2 u/s 6 of the Dowry Prohibition Act is confirmed but the sentence of imprisonment is reduced to six months R.I. from one year R.I. He shall also pay the fine amount as directed by the Court below. As regards A-l he is not the person who directly received the money but his vicarious liability also is there. However, as it appears that sale deed has been executed in the name of wife of A-2 and he is the person who was benefitted with the amount taken and since A-1 has already lost his job, this court feels that a lenient view can be taken. In the circumstances, A-l''s conviction u/s 6 of the Dowry Prohibition Act is confirmed but the sentence of imprisonment for one year R.I is set aside. However, he is directed to pay a sum of Rs. 2,000/- towards fine.
In the result the conviction of A-2 u/s 6 of Dowry Prohibition Act and sentence of payment of fine of Rs. 1,000/- in default to suffer S.I. for four months is confirmed. But the sentence of imprisonment is reduced to six months R.I as against one year R.I. The conviction of A-1 u/s 6 of Dowy Prohibition Act is confirmed but the sentence of imprisonment is set aside. However, he shall pay a sum of Rs. 2,000/- towards fine. The direction of the court below that the appellants shall return Rs. 75,000/- to P.W.2 shall remain. If any amount is paid, the accused can ask for set off in the decree to that extent.
The criminal revision case is dismissed with the above modification in the sentence of imprisonment.