Pankaj Saha vs Jaya Saha And Anr.

[1] This petition filed under Section 397 read with Section 401 of the Cr.P.C. is directed against the judgment and order dated 26.08.2010 delivered in Criminal Appeal No.06(2) of 2008 by the Addl. Sessions Judge, Court No.3, West Tripura, Agartala. By the said judgment, the conviction of the petitioner under Section 406 of the IPC has been affirmed. However, the conviction of the co-accused, namely Satyanarayan Saha and Kabita Saha has been set aside and they were set at liberty.

[2] On the basis of a complaint being C.R. case No.2926 of 2006 filed by Jaya Saha cognizance was taken by the Addl. Chief Judicial Magistrate, West Tripura, Agartala on 29.12.2006 and on examination of the said complaint under Section 200 of the Cr.P.C. the process was issued against the accused persons. On the basis of the evidence as led by the complainant, the charge was framed under Section 406 read with Section 34 of the IPC to which the accused persons pleaded not guilty. Thereafter, the complainant adduced as many as 3(three) witnesses [PWs-1 to 3] including herself [PW-1], her father namely, Naresh Chandra Saha [PW-2] whereas PW-3, namely Sri Biman Roy is an independent witness.

To rebut the evidence of the complainant, one Alorani Debnath [DW-1] and Sri Manik Chanda [DW-2] were examined. Prior to that, the petitioner and the other accused persons were examined under Section 313 of the Cr.P.C.

[3] On the purported appreciation of the evidence, the trial court [the court of the Addl. Chief Judicial Magistrate, West Tripura, Agartala] by the judgment dated 12.03.2008 convicted the accused persons under Section 406 of the IPC holding that the complainant left the matrimonial home having entrusted her properties to the accused persons. The trial court has observed further:

"......the accused persons misappropriated the stridhans of the complainant by using them in their own use and by trying to sell the same. Further from the facts and circumstances of the case it appears that all of the accused persons committed breach of trust in regard to the said stridhans/properties with common intention to use and deprive the complainant. Considering all these aspects it transpires that the complainant proved her case beyond reasonable doubt against the accused persons. So, the accused persons are hereby convicted for the offence under Section 406 of IPC read with Section 34 of IPC in connection with the instant case."

[4] Being aggrieved by that judgment and order dated 12.03.2008, an appeal was filed by all the accused persons under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, West Tripura, Agartala being Criminal Appeal No.06(2) of 2008. For hearing and disposal in accordance with the law, the said appeal was transferred to the court of the Additional Sessions Judge, Court No.3, West Tripura, Agartala and the said appeal was partly allowed by the judgment dated 26.08.2010 on acquitting the other accused namely, Satyanarayan Saha and Kabita Saha but the conviction against the petitioner was upheld by returning the finding which reads, inter alia, as under:

"Now, the question is whether 15 bharis of gold was kept under the custody of all the accused appellants. The gold ornaments are generally kept by the wife in her safe custody for her day to day use where husband has easy access. Thus, husband can be said to have domain over the gold ornaments and so her husband can be said to have entrustment over the ornaments. Father and mother-in-law being the old aged persons have no interest over the ornaments of their daughter-in-law. Generally, they do not have any interest over the ornaments. The allegation that the ornaments were also under the custody of the parents-in-law and they have domain and dishonestly misappropriated the ornaments to their own use is hard to believe. There is no direct evidence that at any point of time the complainant handed over the gold ornaments to her parents-in- law. As such, observation of the learned court below that the parents-in-law were also entrusted with the gold ornaments or had domain over the same appears to be not correct and so the conviction and sentence of accused Satya Narayan Saha and Smt. Kabita Saha being the father and mother-in-law of the complaint is liable to be set aside.

At the same time, the observation of the learned Court below that the husband namely Pankaj Saha had domain over the ornaments and he was found guilty under Section 406 of IPC appears to be correct."

[Emphasis added]

The said finding as emphasized above has been challenged in this revision petition.

[5] Mr. P. Majumder, learned counsel appearing for the petitioner has submitted that there is no evidence that those articles were ever handed over to the petitioner. For this purpose, he has referred to the statement of the complainant [PW-1] where it is found as under:

"I left all my Stridhan which was given in my marriage and the golden ornaments of 15 varies and the listed articles in my matrimonial house. All the things were entrusted to the custody of the accused persons. At the time of payment of cash money amounting to Rs.10,000/- one Biman Roy was present. At the time of handing over of cheque amounting to Rs.65,000/- said Biman Roy was present. I also filed another case against the accused persons U/S 498-A of the IPC. Later on I myself and my father over telephone requested the accused persons to return back the listed articles along with cash amounting to Rs.1,25,000/- in total and golden ornaments of 15 varies, Motor bike and other Stridhans, but they did not return back the same on our demand. Then I could realize that the accused persons will not return back money, articles and ornaments and other goods and they are also reluctant to return back me to my matrimonial house. Then I lodged a complaint before the court of learned CJM, West Tripura, Agartala. Then the said case was transferred to this court. After lodging the complaint petition one petition was filed for issuing search warrant accordingly, the said petition as treated as Misc.44/06 and a search warrant was issued in the said Misc. case and police seized some articles from my matrimonial house on 09.02.07 by preparing a seizure list. But the motor bike and the 15 varies of golden ornaments which includes necklace, ear rings, puspa necklace, plain neck chain, one pair of chur, one pair bungle and conch bungles which was covered with gold was not recovered etc. The said cash amount, golden ornaments of 15 varies and motor bike was misappropriated by the accused persons. The said a/c was opened in my name and in the name of my mother jointly."

[6] PW-2, namely Naresh Chandra Saha, the father of the complainant in the trial has stated:

"After the marriage the husband of my daughter compelled my daughter to give a loan amounting to Rs.50,000/- to her husband. After the marriage my daughter used to be tortured in her matrimonial house on demand of further money. In total he was compelled to pay an amounting to Rs.1,25,000/- to her husband and the father-in-law. There was a joint account in the bank in the name of my daughter namely Jaya Saha and Rani Bala Saha. All the said amount was paid from the said bank A/C. My daughter along with her daughter returned back to my house without bringing back the stridhan which was given by me in her marriage as at that time for the safety of her life she was compelled to return back to my house. Some of the stridhan was recovered subsequently by dint of a search warrant issued by this court. The accused person denied to return back the stridhan to my daughter. Due to this she was compelled to file the instant case. Motorbike, golden ornaments and a cash and two sofa which was given by me was not returned back except one pair of golden ring."

In the cross-examination, PW-1 volunteered to the court that her father purchased some golden ornaments and some were made by the jewelry shop over a span of long years. The cash memos were not preserved. She has further stated that the cash memo of the motorbike was not produced in the court, but she had submitted the passbook of the bank before the court, but in reality no passbook was submitted in the court. PW-2 in the cross-examination has claimed that the cash memos of the golden ornaments were lying with him and he could produce those if it was required. Even PW-2 has stated that his wife had never withdrawn any money from the said account and his daughter used to operate the said account. For purpose of appreciating the challenge, the following solitary question falls for consideration:

Whether the criminal breach of trust has been established or not?

The criminal breach of trust has been defined in Section 405 of the IPC. Unless the ingredients viz. entrustment with the property or dominion over the property is established and shown that the person accused of the criminal breach of trust has by breaching the said entrustment or dominion dishonestly misappropriated or converted to his own use or dishonestly used or disposed 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 had made touching the discharge of such trust, or wilfully caused suffer any person so to do, commits criminal breach of trust. Hence, the initial burden on the complainant is to prove that the entrustment of property was made to the accused but the actual manner of misappropriation of the property by the accused may not be proved by the complainant, once the initial burden is discharged by the complainant. The onus would be on the accused to prove how the property entrusted to him was dealt with. Proof of entrustment is the sine qua non for establishing the charge for commission of offence under Section 406 of the IPC. True it is that dishonest appropriation or conversion to own use of stridhan property by husband or such other person by itself amounts to criminal breach of trust. For this purpose, in the context of this case, requirement of proof is that that those stridhans did really exist and those were entrusted to the husband or the other inmates and there was breach. The manner of proving would be that if the entrustment is proved then the onus would shift to the accused to prove in what way they had maintained the trust or utilized the properties, if at all.

[7] Mr. Majumder, learned counsel appearing for the petitioner has submitted that if the statements of PWs-1 & 2 are read together, it would be apparent that there was no entrustment. Even PW-1 did not state anywhere that she has given the entrustment to the petitioner. Her statement is general that such entrustment was with the petitioner and the parents-in-law. The appellate court disbelieved the entrustment to the parents-in-law, even though beyond this, there is no evidence against the petitioner. The conviction against him has been maintained. That apart, PW-2 has revealed that it was under the control of PW-1. Whether PW-1 after drawing the money has spent it or not, there is no proof. Mere statement that the amount to the petitioner without proving the mode of transfer should not be believed by this court. Moreover, PW-2 has stated that `50,000/- was paid to the petitioner as a loan. Loan cannot be stated to be 'a property' entrusted. It is guided by the certain principles if the loan is not paid back, it would be a civil cause and not in all circumstances it would be a culpable act subject to the criminal proceeding.

[8] Mr. Majumder, learned counsel appearing for the petitioner has referred to a decision of the apex court in Bhaskar Lal Sharma and another vs. Monica, reported in (2009) 10 SCC 604, where the apex court has observed as under:

"Any 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 the Code."

[9] From the other side, Mr. Samarjit Bhattacharji, learned counsel appearing for the complainant, the respondent No.1 herein, has submitted that there is no infirmity in the judgments delivered by the trial court as well as by the appellate court, as there is adequate evidence of entrustment of the stridhan. According to Mr. Bhattacharji, learned counsel, stridhan has been defined by the apex court in Rashmi Kumar (SMT) vs. Mahesh Kumar Bhada, reported in (1997) 2 SCC 397. The apex court in Rashmi Kumar (supra) has observed as under:

"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. Husband 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 thereof."

[10] On appreciating the submissions made by the learned counsel appearing for the parties including the submission made by Mr. R.C. Debnath, learned Addl. P.P. appearing for the State and on revisiting the evidence as recorded by the trial court, this court is of the view that the complainant has failed to establish the charge beyond reasonable doubt inasmuch as the complainant has led insufficient material to establish entrustment of her properties to the petitioner, rather the evidence led by the complainant had gone haywire and even PW-2 did not support her case. In the material points, PW-2 contradicted the complainant (PW-1). That apart, PW-1 could not prove by evidence how she made the payment or how her properties in the form of cash or gold were entrusted to the petitioner. There is a mere general statement against all the accused persons. There is no specific evidence in this regard. Moreover, it is clear from Bhaskar Lal Sharma (supra) that the gifts made to the bridegroom or the parents-in- law at the time of marriage or any other occasion cannot come to be the properties of the bride. It was really astonishing how a motorbike can be gifted to the bride. Even the gift of money has been successfully submitted. The savings account has not been led in the evidence. Therefore, there is no primary evidence in this case to hold that the charge proved beyond reasonable doubt. Hence, the benefit would go to the petitioner.

[11] Having held so, the impugned judgment and order is set aside on benefit of doubt and in consequence thereof, the petitioner is acquitted from the charge. The sureties are discharged from their obligation.

In the result, this petition stands allowed. Send down the LCRs forthwith.