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ASHOKKUMAR BUXI AND ANOTHER versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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AshokKumar Buxi and another v. State Of U.P. & Another - APPLICATION U/s 482 No. 8955 of 2006 [2006] RD-AH 19091 (13 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 48)

Criminal Misc. Application  No.   8955  of 2002

***

1. Ashok Kumar Buxi son of Sri Jodh Buxi.

2. Smt. Manja Buxi wife of Ashok Buxi

Both Resident of 3/20, Rajendra Park,

Gorey Gaon ( West)  Mumbai -400062  ........Applicants-Accused.

Vs.

1. State of U.P.

2. Smt. Geeta Buxi wife of Rajan Buxi,

Daughter of latge Sri Brahma Swaroop

Bhatnagar, at present residing at C/o S.S.

Bhatnagar, A-5, sales Tax Colony,

Jaipur House, Police Station Loha Mandi,

District Agra. ....... Complainant Opp.parties.

****

Hon'ble Barkat Ali Zaidi, J

1. Wife filed a complaint ( No. 1088 of 1999)  against the husband and ten other relatives for non-return of Stridhan property under Section  406 Indian Penal Code  and the Magistrate (A.C.J.M.) Agra issued process. Two of the eleven accused , named above, being the brother and the wife of  husband's brother have come under Section 482 Cr..P.C. to quash the proceedings.

2. The complainant-Opp.Party no.2 has mentioned the Stridhan given in para No. 6  of the complaint, and the list annexed which are as follows:-

(i) Cash amount of Rs. 35,000/-

(ii) One Bajaj Chetak Scooter.

(iii) One Big Almirah.

(iv) Polar Ceiling Fan.

(v) Two  HARS of Gold and

(vi) One  Ring of Gold

(vii) Etc.

3. It was mentioned in the complaint that she was turned out of the house by his Kinsmen while the husband had gone out of the country and they retained the Stridhan item for themselves.  A notice was also given for return of  Stridhan property by the wife ( Opp.Party No.2) to the accused but the Stridhan property  was not returned and thereafter, she filed this complaint.

4. The two petitioners, who have come to this Court, who are husband's brother and his wife, are residing at Bombay since 1980 i.e. since before the marriage of the complainant wife  and the petitioner no.1 ( Sri Ashok Baxi)  is an employee in Taj Hotel, Bombay. A certificate  of Taj Hotel, Bombay has been filed to this effect.

5. There is no allegation that the petitioners took any Stridhan to Bombay for their own use, and, there is no likelihood of their having appropriated any Stridhan property of the wife.  This is an illustrative of the reckless and ruthless manner for which the accused have been arrayed in this complaint.

6. The other aspect is that the complaint seems to be barred, prima-facie  by Limitation. Marriage of the complainant-Opp.Party  took place at Udaipur. She alleges that she was turned out of the house by the accused on 13.4.1996. The Limitation for filing the complaint under Section  406 Indian Penal Code is 3 years from the date of entrustment as provided in Section   468 (2) ( c) Cr.P.C. The complaint, therefore, be deemed to have been filed beyond Limitation and becomes un-maintainable on this ground.

7. There is another ground on which complaint seems to be un-maintainable in the court at  Agra,  and that is, that, the marriage of the complainant took place in Udaipur, and the Stridhan items are naturally delivered at the time of marriage  and must have been so delivered at Udaipur.  It is , therefore, the Udaipur Court, which will have the jurisdiction. It is for the first time, in this Court, in her counter affidavit that the  wife-Opp.party has mentioned that the Stridhan property was given 3 days before marriage at Agra. At first, no such thing was mentioned e3ither in the notice nor in the complaint.  This has now been deliberately inserted in order to bring the matter within the jurisdiction of Court at Agra. The contention that the Stridhan property was given even before the marriage is obviously a manipulated move  to bring the matter within the jurisdiction of Agra Court.  The Agra Court, therefore, seems to have no jurisdiction to entertain the complaint.

8. Besides limitation and jurisdiction, even on merits, the complaint's case against so many of her husband's relatives seems infirm and depreciated. The reason is that there is no clear mention of any entrustment of Stridhan property to any particular accused, which is necessary for constituting  the offence under Section  406 Indian Penal Code. There is a general averment about so many accused about retaining the property. It would be appropriate to quote here the observations made in case of  Vinod Kumar Goyal Vs. Union Territory, 1991 Cri. L.J.,2333( P & H), which is as follows:-

" As to criminal breach of trust by a spouse, it may, however, be opposite that mere allegations in the complaint either concerning entrustment of articles of dowry constituting stridhan to all the accused, or , their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima-facie case for commission of offences punishable under Section 405 or Section 406 I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with malafide intention  retained the same and had refused to return those articles to the wife for whose exclusive use such article were allegedly entrusted to him, no prima-facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal  breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima-facie be said to be responsible only for his individual acts  and cannot be fastened with joint or vicarious liability."

9. The requirement of  Section  406 Indian Penal Code being attracted as enumerated in the aforesaid case, cannot be said to be  available in the present case, because, there is no clear mention of the entrustment of items to any particular accused and there is only a general and vague statement that all the accused have usurped the property. Even on merits, the case of the complainant- wife is unsuccessful.

10. In view of the aforesaid circumstances, the  continuation  of the proceedings in the wife's complaint would obviously be an abuse of process of Court,  and the proceedings, need to be brought to a close.

11. The relief need not, therefore, be conferred to petitioners  and where this Court finds, as here, that that continuation of the proceedings is wholly unwarranted and unjust, the Court should terminate the same even in respect of other accused, who have not specifically approached this Court.

12. In the result, the proceedings initiated on the basis of complaint in question shall stand terminated.

13. A copy of this order be sent by the Registry forthwith to Addl. Chief Judicial Magistrate through District and Sessions Judge, Agra for information and compliance.

Dt:   13.11.2006

  n.u.

(Court No. 48)

Criminal Misc. Application  No.   8955  of 2002

***

1. Ashok Kumar Buxi son of Sri Jodh Buxi.

2. Smt. Manja Buxi wife of Ashok Buxi

Both Resident of 3/20, Rajendra Park,

Gorey Gaon ( West)  Mumbai -400062  ........Applicants-Accused.

Vs.

1. State of U.P.

2. Smt. Geeta Buxi wife of Rajan Buxi,

Daughter of latge Sri Brahma Swaroop

Bhatnagar, at present residing at C/o S.S.

Bhatnagar, A-5, sales Tax Colony,

Jaipur House, Police Station Loha Mandi,

District Agra. ....... Complainant Opp.parties.

****

Hon'ble Barkat Ali Zaidi, J

1. Wife filed a complaint ( No. 1088 of 1999)  against the husband and ten other relatives for non-return of Stridhan property under Section  406 Indian Penal Code  and the Magistrate (A.C.J.M.) Agra issued process. Two of the eleven accused , named above, being the brother and the wife of  husband's brother have come under Section 482 Cr..P.C. to quash the proceedings.

2. The complainant-Opp.Party no.2 has mentioned the Stridhan given in para No. 6  of the complaint, and the list annexed which are as follows:-

(i) Cash amount of Rs. 35,000/-

(ii) One Bajaj Chetak Scooter.

(iii) One Big Almirah.

(iv) Polar Ceiling Fan.

(v) Two  HARS of Gold and

(vi) One  Ring of Gold

(vii) Etc.

3. It was mentioned in the complaint that she was turned out of the house by his Kinsmen while the husband had gone out of the country and they retained the Stridhan item for themselves.  A notice was also given for return of  Stridhan property by the wife ( Opp.Party No.2) to the accused but the Stridhan property  was not returned and thereafter, she filed this complaint.

4. The two petitioners, who have come to this Court, who are husband's brother and his wife, are residing at Bombay since 1980 i.e. since before the marriage of the complainant wife  and the petitioner no.1 ( Sri Ashok Baxi)  is an employee in Taj Hotel, Bombay. A certificate  of Taj Hotel, Bombay has been filed to this effect.

5. There is no allegation that the petitioners took any Stridhan to Bombay for their own use, and, there is no likelihood of their having appropriated any Stridhan property of the wife.  This is an illustrative of the reckless and ruthless manner for which the accused have been arrayed in this complaint.

6. The other aspect is that the complaint seems to be barred, prima-facie  by Limitation. Marriage of the complainant-Opp.Party  took place at Udaipur. She alleges that she was turned out of the house by the accused on 13.4.1996. The Limitation for filing the complaint under Section  406 Indian Penal Code is 3 years from the date of entrustment as provided in Section   468 (2) ( c) Cr.P.C. The complaint, therefore, be deemed to have been filed beyond Limitation and becomes un-maintainable on this ground.

7. There is another ground on which complaint seems to be un-maintainable in the court at  Agra,  and that is, that, the marriage of the complainant took place in Udaipur, and the Stridhan items are naturally delivered at the time of marriage  and must have been so delivered at Udaipur.  It is , therefore, the Udaipur Court, which will have the jurisdiction. It is for the first time, in this Court, in her counter affidavit that the  wife-Opp.party has mentioned that the Stridhan property was given 3 days before marriage at Agra. At first, no such thing was mentioned e3ither in the notice nor in the complaint.  This has now been deliberately inserted in order to bring the matter within the jurisdiction of Court at Agra. The contention that the Stridhan property was given even before the marriage is obviously a manipulated move  to bring the matter within the jurisdiction of Agra Court.  The Agra Court, therefore, seems to have no jurisdiction to entertain the complaint.

8. Besides limitation and jurisdiction, even on merits, the complaint's case against so many of her husband's relatives seems infirm and depreciated. The reason is that there is no clear mention of any entrustment of Stridhan property to any particular accused, which is necessary for constituting  the offence under Section  406 Indian Penal Code. There is a general averment about so many accused about retaining the property. It would be appropriate to quote here the observations made in case of  Vinod Kumar Goyal Vs. Union Territory, 1991 Cri. L.J.,2333( P & H), which is as follows:-

" As to criminal breach of trust by a spouse, it may, however, be opposite that mere allegations in the complaint either concerning entrustment of articles of dowry constituting stridhan to all the accused, or , their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima-facie case for commission of offences punishable under Section 405 or Section 406 I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with malafide intention  retained the same and had refused to return those articles to the wife for whose exclusive use such article were allegedly entrusted to him, no prima-facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal  breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima-facie be said to be responsible only for his individual acts  and cannot be fastened with joint or vicarious liability."

9. The requirement of  Section  406 Indian Penal Code being attracted as enumerated in the aforesaid case, cannot be said to be  available in the present case, because, there is no clear mention of the entrustment of items to any particular accused and there is only a general and vague statement that all the accused have usurped the property. Even on merits, the case of the complainant- wife is unsuccessful.

10. In view of the aforesaid circumstances, the  continuation  of the proceedings in the wife's complaint would obviously be an abuse of process of Court,  and the proceedings, need to be brought to a close.

11. The relief need not, therefore, be conferred to petitioners  and where this Court finds, as here, that that continuation of the proceedings is wholly unwarranted and unjust, the Court should terminate the same even in respect of other accused, who have not specifically approached this Court.

12. In the result, the proceedings initiated on the basis of complaint in question shall stand terminated.

13. A copy of this order be sent by the Registry forthwith to Addl. Chief Judicial Magistrate through District and Sessions Judge, Agra for information and compliance.

Dt:   13.11.2006

  n.u.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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