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Gopi Pujari v. State Of U.P. & Another - APPLICATION U/s 482 No. 10688 of 2006  RD-AH 17523 (11 October 2006)
Hon'ble M. K. Mittal, J.
Application has been filed under Section 482 Cr.P.C. to quash the proceedings in criminal complaint case no. 2311 of 2005 Stm. Shashi Vs. Ravi Pujari and others under Section 406 IPC, P.S. Surajpur, District Gautambudh Nagar pending in the Court of C.J.M., Gautambudh Nagar.
Heard learned counsel for the applicant, learned A.G.A. and perused the material on record.
Brief facts of the case are that opposite party no. 2 filed a complaint against her husband Ravi Pujari and her father in law under Section 406 IPC alleging that her Stridhan, which was in possession of the accused persons, was not being returned. According to complainant she was married on 5.3.2003 and dowry was given but the accused were not satisfied and she was ill-treated and even was tried to be killed through electric current. She filed a report under Section 323, 498-A IPC and Section 3/4 D. P. Act, which is still pending. She also gave an application to Senior Superintendent of Police, Gautambudh Nagar. The accused promised to return but did not return her Stridhan, a notice was given through her counsel and thereafter complaint was filed.
Learned Magistrate examined the complainant under Section 200 and her father under Section 202 Cr.P.C. and finding a prima facie case against the accused directed to summon him as well as his son.
Learned counsel for the applicant has contended that the applicant has no concern with his son as he had made a declaration to that effect in a Panchayat on 21.5.2004 and that no case under Section 406 IPC is made out against him. He has also contended that applicant also gave an application to District Magistrate and S.S.P., Gautambudh Nagar stating that he has partitioned his property amongst his sons and has no concern with them. On this basis, learned counsel for the applicant has contended that applicant has been wrongly summoned under Section 406 IPC but it appears that the applicant did not inform the complainant about the alleged partition and disclaimer of his sons. It also appears that the accused did not give any reply to the notice given by the complainant. Moreover, alleged partition does not appear to be genuine as the absolute right has not been given to his sons by the applicant.
In the case of criminal breach of trust the initial burden is on prosecution to prove entrustment of the property to accused. Although the actual manner of misappropriation of the property by the accused need not be proved by it. Once the initial burden is discharged by the prosecution onus shifted to the accused to prove how the property entrusted to him was dealt with by him.
In the circumstances of the case whether the opposite party no. 2 entrusted her Stridhan to the applicant and where he misappropriated it or not, are question of fact which can be seen in the Trial Court. The fact that accused had disclaimed his sons is also to be seen by the Trial Court at appropriate stage. These facts cannot be seen in the proceedings under Section 482 Cr.P.C..
In the circumstances I do not find any illegality in the complaint and the summoning order and the application being devoid of merits is liable to be dismissed.
Application filed under Section 482 Cr.P.C. is hereby dismissed. However, if the applicant surrenders in the Trial Court by 25.9.2006 and apply for bail under Chapter XXXIII Cr.P.C. same shall be decided expeditiously and according to law. Till 25.9.2006 the execution of non bailable warrant against the appellant shall remain stayed.
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