REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.                               OF 2009 [Arising out of Special Leave Petition (Crl.) Nos. 4125-4126 of 2008]

BHASKAR LAL SHARMA & ANR. …APPELLANTS

Versus

MONICA          …RESPONDENT

J U D G M E N T  

S.B. SINHA, J:

Leave granted.

Respondent  Monica  married  Vikas  Sharma  (Vikas),  son  of  the  

appellants herein.  Vikas was a divorcee. He obtained the decree of divorce  

on or about 8th July, 2003 passed by the Civil Court in Lubumbashi, Congo.  

He had two children born on 23rd April, 1999 and 8th July, 2000 respectively  

from his first wife.

Indisputably, Vikas as also the appellants are engaged in the family  

business of import and export of about 150 commodities.   Vikas was the  

Managing Director of the family managed Company since 1994 having its  

operating  business  places  at  Delhi,  Bangkok,  Shanghai,  Brussels,  

Johannesburg,  Kinshasa,  Lubumbashi,  Uganda,  etc.   Vikas  and  the  

appellants ordinarily live in Congo.  They have a residential house also at  

Lajpat Nagar, New Delhi.   

Negotiation between Vikas and the respondent – Monica took place  

through  an  agency  known  as  ‘Sycorian  Matrimonial  Services’.   The  

marriage took place at Sanatan Dharam Mandir Hall, Delhi on 16.1.2004.  It  

was also registered with the Registrar of Marriages, MB Road Saket, New  

Delhi on 22.1.2004.  Immediately thereafter, i.e., on or about 25.1.2004, the  

couple  left  India  and stayed in  Johannesburg,  South Africa  for  about  10  

days.   They thereafter  left  for Lubumbashi,  Conga,  Africa.   They stayed  

there for 2 months in their matrimonial home.  The relationship between the  

parties was cordial during that period.   

Monica  came  back  to  India  on  5.4.2004.   She  stayed  at  her  

matrimonial  home  at  Lajpat  Nagar,  New  Delhi  till  10.5.2004  with  the  

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appellants.   She  again  left  for  Lubumbashi,  Africa  to  join  her  husband.  

However, the relationship between the parties deteriorated thereafter.  They  

came back to India on 21.5.2004. Monica allegedly took all her belongings  

from Congo including clothes and the jewelry which she had been carrying.   

On or about 26.5.2004, Vikas and the respondent visited Dr. Nagpal, a  

psychiatrist at Vim Hans Hospital for consultation to ascertain the reason for  

the non-compatibility and discord between them.  Dr. Nagpal advised them  

to make their matrimonial life successful.   

Vikas left for Congo on 27.5.2004 hoping that Monica would change  

her mind in regard to the future of their marriage and they should take a  

decision in regard to her going back thereto later.  She, however,  for one  

reason or the other, went to her parent’s house on 14.6.2004 and took all her  

belongings including the jewelry articles which she had been carrying.  

Allegedly,  during  that  period,  appellant  No.2  humiliated  her  by  

various acts to which we would advert to a little later.   

It is borne out from the records that during this entire period including  

the  period  after  she  left  her  matrimonial  home  in  June  2004,  parties  

communicated with each other through e-mails.   

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Monica  filed  a  complaint  marked as  Complaint  No.  287/1A under  

Sections  498A,  406 and 34 of  the  Indian  Penal  Code  (for  short,  “IPC”)  

against her husband Vikas and the appellants on 9.9.2004. On the same day,  

an application for grant of maintenance was also filed in the Court of learned  

Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi  

under Section 125 of the Code of Criminal Procedure (for short, “the Code”)  

claiming maintenance of a sum of Rs.2 lakhs per month as also an order of  

an interim maintenance of Rs.2 lakhs per month till the disposal of the case.  

She was examined by the learned Metropolitan Magistrate Patiala House,  

New Delhi on 30.11.2004.  Evidences were recorded whereafter summons  

had been issued on 21.3.2005 by the learned Metropolitan Magistrate.  Her  

application for grant of interim maintenance was also allowed by the learned  

Metropolitan Magistrate by an order dated 10.5.2005 and granted interim  

maintenance at the rate of Rs.5,000/- per month.   

Non bailable warrants of arrest were also issued against the appellants  

as also Vikas on 29.6.2005.   

The respondent being not satisfied with the quantum of maintenance  

as granted by way of an interim arrangement filed a Revision Application  

before  the  High  Court  marked  as  Criminal  Revision  No.  452  of  2005  

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seeking increase  in  the  maintenance  granted  by the  learned Metropolitan  

Magistrate.   The  High  Court  enhanced  the  amount  of  compensation  of  

interim maintenance to Rs.50,000/- per month.  The amount of maintenance  

has since been fixed at Rs.50,000/- per month by the said Court.

On  or  about  2.8.2005,  appellants  as  also  Vikas  filed  application  

marked as Criminal (Misc.) No. 3673-75 of 2005 under Section 482 of the  

Code before the Delhi High Court for quashing the order directing issuance  

of non-bailable warrants against them.  The High Court by its order dated  

8.8.2005  stayed  the  order  issuing  non-bailable  warrants  against  the  

appellants  with  an  undertaking  that  Vikas  and  appellants  would  appear  

before the learned Magistrate.   

Appellants  along  with  Vikas  also  filed  an  application  marked  as  

Criminal (Misc.) Main No. 4742 of 2005 under Section 482 of the  Code for  

quashing of the  summoning order  dated 21.3.2005 passed by the learned  

Magistrate in Complaint No.287/1A  summoning them for attending the trial  

court under Sections 498A, 406 and 34 of the IPC.   

On 3.10.2005, appellants and their son came to India; they appeared  

before the learned Magistrate; they were admitted to bail.  

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The  High  Court  by  its  order  dated  4.10.2005  passed  in  Criminal  

Revision No.  452 of  2005 directed impounding of  the  passport  of  Vikas  

stating that the efforts were being made for reconciliation.  Admittedly talks  

of reconciliation failed.  The High Court modified the said finding stating  

that  the  marriage  seems  to  have  broken  down  irretrievably  and  directed  

return of the passport to him by an order dated 6.10.2005.  Pursuant to the  

liberty  granted  by  the  High  Court,  appellants  as  also  Vikas  filed  an  

application on 15.10.2005 for permission to go abroad, which was allowed  

subject to the condition that additional bank guarantees be furnished of Rs.1  

lakh for each of the applicant.   

Monica challenged the said order before the High Court which was  

dismissed by an order dated 18.10.2005.    

On 21.11.2005, Monica filed a Criminal Complaint No.574/1 under  

Section 420 of the IPC against the appellants and Vikas inter alia alleging all  

material facts relating to the first marriage and divorce and in particular the  

fact that the first wife of Vikas in her divorce suit alleged acts of cruelty on  

the part of her husband had not been disclosed.

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On 12.12.2005, Monica challenged the order of the Delhi High Court  

dated  18.10.2005  before  this  Court  by  way  of  Special  Leave  Petition  

(Criminal) No. 6015-6016 of 2005, which was dismissed by an order dated  

12.12.2005.

Despite the same, Monica filed another petition before the High Court  

under Section 482 of the Code inter alia praying that the learned trial court  

may be directed not to release the passport of Vikas till the application filed  

by her under Section 340 of the Code is disposed off.   

Another petition marked as Criminal Misc. (Main) No. 519 of 2006  

was filed by her for a direction upon the learned trial court to dispose of the  

case filed by her under Sections 498A/406 IPC and 420 IPC within a time  

frame of about 3 months and the appellants  as also Vikas be directed to  

submit all the papers relating to their properties in India before the learned  

trial court.   

The High Court  by  its  order  dated 7.2.2006 dismissed the  petition  

filed by the respondent with costs.  

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On 20.3.2006, the learned Metropolitan Magistrate, New Delhi took  

cognizance of the complaint No. 574/1 under Section 417/415 IPC as the  

allegations were not made out under Section 420.

On 27.3.2006, the order dated 7.2.2006 passed by the High court was  

challenged by the respondent before this  Court by way of Special  Leave  

Petition (Criminal) No.1220 of 2006, which was dismissed with a direction  

to the trial court to expedite the proceedings.      

Indisputably for one reason or the other (appellants had given some  

explanation in this behalf in the Special Leave Petition) appellants having  

failed to attend the court  of the learned Metropolitan Magistrate,  Monica  

filed  an  application  for  attachment  of  the  ancestral  property  of  the  first  

appellant.  Interpol also was sounded.  Orders were passed for attachment of  

the property in terms of Section 83 of the Code situated both at Delhi as also  

the ancestral house of the first appellant at Jaipur.  Although the order of  

attachment so far as the Jaipur property is concerned is said to have been  

passed in terms of Section 83(4)(c) of the Code, Monica allegedly forged the  

said order to show that the order of attachment has been passed in terms of  

Section 83(4)(a) thereof.

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Brother  of  the  first  appellant  lodged  a  First  Information  Report  

(“FIR”)  with  Moti  Dungri  Police  Station,  Jaipur.   We are,  however,  not  

concerned with the said case at present.

Indisputably on 17.11.2007, Monica filed a petition under Section 9 of  

the  Hindu  Marriage  Act,  1955  seeking  for  restitution  of  conjugal  rights  

marked as Case No. 683 of 2007, which is pending in the Court of learned  

Additional District Judge, Tis Hazari, New Delhi.

We  may  place  on  record  that  at  the  instance  of  Monica  several  

attempts have been made for reconciliation of matrimonial dispute between  

her and Vikas.   

We may also place on record that  applications  dated 9.5.2008 and  

31.5.2008 respectively were also filed before this Court by the respondent  

for mediation  

Chandan  Sharma,  another  son  of  the  appellants  came  from  Hong  

Kong to India for that purpose.  Monica, however, insisted that appellant  

No.1 himself should come to India before her husband Vikas comes, which  

was not acceptable to the appellants as the reconciliation of the disputes was  

to take place between Monica and her husband Vikas.   

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We may notice that even this Court in the transfer petition filed by  

Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated  

4.2.2008 impleaded Union of India through Ministry of External Affairs as a  

party and learned Additional Solicitor General appearing for Union of India  

made a  statement  before this  Court  on 11.4.2008 that  Emergency Travel  

Documents would be made available to Vikas and upon his arrival a regular  

passport  would  be  issued.   Interpol/Ministry  of  External  Affairs  were  

directed  not  to  enforce  the  Red  Corner  Notice  against  Vikas  Sharma.  

Pursuant thereto Vikas traveled to India.  

On 9.5.2008, Vikas appeared before this Court in Transfer Petition  

(Criminal) No. 258/2007 and this Court by an order dated 9.5.2008 directed  

the  complainant  and  Vikas  to  report  to  the  Senior  Coordinator  of  the  

Mediation Cell  at  Tis Hazari  Courts,  Delhi to explore the possibilities of  

resolving/settlement  of  their  matrimonial  discord.   Pursuant  thereto  the  

parties  appeared  before  the  learned  Senior  Mediator  and  the  mediation  

processes were resorted to on day to day basis.  Indisputably however, the  

said  negotiation  failed.   The  matter  was  listed  before  this  Court  on  

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11.6.2008.  The parties were given an opportunity to reconcile their disputes.  

However, they could not arrive at any settlement.   

The High Court  by  reason of  the  impugned order  dated  21.1.2008  

dismissed  the  application  for  quashing  the  summoning  order  dated  

21.3.2005 filed by the appellants herein, opining:

“14. In order to attract the offence under Section  498A it would have to be proved that the wife was  subjected  to  cruelty  which  could  include  mental  cruelty.  Whether the conduct was such as to cause  grave injury or danger to the mental health of the  woman are all matters to be examined only after  the detailed evidence is led by the prosecution.  At  this stage, when a prayer is made for quashing of  the  criminal  proceedings,  this  Court  is  not  expected  to  go  through  the  pre-summoning  evidence in great detail and determine whether in  fact  all  the  ingredients  of  the  offence  as  set  out  under Section 498A are actually made out or not.

15. Likewise  the  submission  of  the  petitioners  regarding non-entrustment of property to them by  the complainant for the purposes of attracting the  offence under Sections 403 read with 406 IPC is  without  merit.  It  was  attempted  to  be  shown by  learned counsel for the petitioner that there is no  specific  averment that  property was entrusted by  the  complainant  to  either  of  these  petitioners  or  that they had criminally misappropriated the same.  This Court is unable to agree.  The averments in  paras 16, 24 and 29 of the complaint when read  taken  collectively  do  indicate  that  the  property  which belonged to the complainant was, according  to  the  complainant,  in  the  possession  of  the  Petitioners and on demand they refused to return  

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such property.  At this stage, in order to examine if  the complaint makes out a prima facie case, it is  not  necessary  to  go  into  the  fine  details  and  determine whether what is stated in the complaint  is true or not.  

16. In  this  context  the  observations  of  the  Supreme  Court  in  Rashmi  Kumar  v.  Mahesh  Kumar  Bhada  (1997)  2  SCC  397  would  be  relevant.  In that case while examining Section 406  in some detail, this Court observed as under (SCC  p. 407): The expression entrustment carries with it  the implication that the person handing over any  property  or  on  whose  behalf  that  property  is  handed over to another, continues to be its owner.  Entrustment is  not  necessarily  a term of law.  It  may  have  different  implications  in  different  contexts.   In  its  most  general  signifance,  all  its  imports is  handing over the possession for some  purpose which may not imply the conferment  of  any proprietary  right  therein.   The  ownership  or  beneficial  interest  in  the  property  in  respect  of  which criminal breach of trust is alleged to have  been  committed,  must  be  in  some  person  other  than  the  accused  and  the  latter  must  hold  it  on  account  of  some person or  in  some way for  his  benefit.”

Mr.  Vikas  Pahwa,  the  learned  counsel  appearing  on  behalf  of  the  

appellants urged that the High Court committed a serious error in passing the  

impugned judgment insofar as it failed to take into consideration that:

i. the complaint petition even if given face value and taken to be  

correct in its entirety does not disclose commission of offences  

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either under Section 498A or Section 406 of the IPC so far as  

the appellants are concerned;

ii. the  order  summoning  the  appellants  passed  by  the  learned  

Metropolitan  Magistrate,  New  Delhi  dated  21.3.2005  would  

categorically  show  that  there  has  been  a  complete  non-

application of mind on the part of the learned Magistrate;

iii. The  High  Court  failed  to  consider  the  e-mails  exchanged  

between  the  parties  which  were  annexed  to  the  complaint  

petition  itself.   Had  the  said  e-mails  been  taken  into  

consideration, it could have been shown that no allegation of  

dowry demand or misappropriation of her Streedhan had been  

made therein;

iv. the  complaint  petition  does  not  disclose  that  any  dowry  has  

been demanded by the appellants or any act on their part was  

likely  to  drive  the  woman to  commit  suicide;  which  are  the  

requisite  ingredients  in  regard  to  commission  of  an  offence  

under Section 498A of the IPC.

v. Only two purported instances have been given with regard to  

alleged commission of  an offence against  the appellant  No.1  

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and so far as the appellant No.2 is concerned, the allegations are  

only general in nature.   

vi. The FIR in question and other  spate  of litigations  started by  

Monica  against  her  husband  and  her  parents-in-law  clearly  

show acts of mala fide on her part inasmuch as she not only  

filed  the  complaint  petition  in  question  but  also  filed  an  

application for grant of maintenance, a complaint petition under  

Section 420 of the IPC wherein an order of summoning had  

been issued as also an application under Section 9 of the Hindu  

Marriage Act, 1955 for the purpose of harassing her in-laws but  

at  the same time she had been asking for mediation of  their  

matrimonial dispute.

Mrs. Vinay Malhotra, the mother of the respondent, on the other hand,  

urged that:

i. the appellants had been harassing and torturing the respondent  

in a systematic and planned manner to break her marriage with  

their son so as to compel her to agree for a divorce on receiving  

some amount.  

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ii. Stridhan  was  entrusted  to  the  appellants/their  son  and  non-

return thereof had been used as a coercive method to meet the  

unlawful demand of extracting divorce by mutual consent  

iii. Appellants had been taking different stands at different time as  

although no statement  has been made before the High Court  

that  they had returned the stridhan to the respondent;  such a  

stand has  been taken  for  the  first  time in  the  Special  Leave  

Petition.    

iv. the respondent in her testimony having stated that the appellants  

had refused to call their son to India and had refused to return  

the Stridhan unless the proposal for divorce by mutual consent  

was accepted by her, sufficiently established the offence against  

them.   

v. the  appellants  having  admitted  offering  of  money  to  the  

respondent  for  obtaining divorce  by  mutual  consent  must  be  

held to be guilty of commission of offences.

vi. the appellants having offered a sum of Rs.25 lakhs for divorce  

by mutual consent would clearly go to show their mind-set that  

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they  have  been  considering  the  marriage  only  in  monetary  

terms and not of any emotional values.  

The Parliament by Act No. 46 of 1983 with a view to combat the  

menace  of  dowry  deaths  and  harassment  to  woman at  the  hands  of  her  

husband or his relatives introduced Section 498A and Section 304B in the  

IPC.   

Section 498A reads as under:

“498-A.  Husband or  relative  of  husband or  a  woman  subjecting  her  to  cruelty.--   Whoever,  being the husband or the relative of the husband of  a woman, subjects such woman to cruelty shall be  punished with imprisonment for a term which may  extend to  three  years  and shall  also  be  liable  to  fine.”   

The ‘Explanation’ appended thereto defines cruelty to mean: (i) any  

willful conduct which is of such a nature as is likely to drive the woman to  

commit  suicide or to cause grave injury or danger to life,  limb or health  

whether mental or physical of the woman; or (ii) harassment of the woman  

where such harassment is with a view to coercing her or any person related  

to her to meet any unlawful demand for any property or valuable security or  

is on account of failure by her or any person related to her to meet such  

demand.   

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Thus, the essential ingredients of the aforementioned provisions are:

. 1. A woman must be married.

2. She must be subjected to cruelty.

3. Cruelty must be of the nature of:

(i) any willful conduct as was likely to drive such woman:

a. to commit suicide;

b. cause  grave  injury  or  danger  to  her  life,  limb,  

either mental or physical;

(ii) harassment of such woman, (1) with a view to coerce her  

to meet unlawful demand for property or valuable security, (2)  

or on account of failure of such woman or by any of her relation  

to meet the unlawful demand,  

(iii) woman was subjected to such cruelty by: (1) husband of  

that woman, or (2) any relative of the husband.

For constitution an offence under Section 498A of the IPC, therefore,  

the ingredients thereof must be held to be existing.

For  proving  the  offence  under  Section  498A  of  the  IPC,  the  

complainant  must  make  allegation  of  harassment  to  the  extent  so  as  to  

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coerce her to meet any unlawful demand of dowry, or any willful conduct on  

the part of the accused of such a nature as is likely to drive the woman to  

commit suicide or to cause grave injury or danger to life, limb or health.  We  

do not find any such allegation has been made or otherwise can be found out  

so as to enable us to arrive at an opinion that the appellants prima facie have  

committed such an offence.    

The  complaint  petition  must  also  be  read  with  several  other  

documents which form part of the complaint petition.  The children from the  

first wife of Vikas were with Monica.  Vikas affirmed an affidavit so as to  

enable Monica to apply for their passports.  Vikas, therefore, wanted to have  

children with them.   

Monica sent an e-mail on 5.6.2004 to his mother stating that Vikas  

sent an e-mail to her on 4.6.2004, which reads thus:

“My love bubbly.

Don’t  worry everything will  be fine.   I  am very  happy to have found a person like you, who loves  durjaya  and  surya  like  me.   Mona,  pls.  pray  to  Krishna  to  help  me and help  us  to  do  the  right  thing.  I want to change my life to better, I want to  become a sincere devotee of the Lord, I never want  to drink again, it  puts me down.  I want to pray  regularly,  we must organize our time together to  pray to the lord, we must serve him together and  

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everything will be alright.  Pls. try to go everyday  to the temple and pray to the Lord for us and our  children, don’t worry all will be ok.  I am sorry to  have caused you so much pain, I will make it up to  you, promise.  I love you my dear, take care.

HARE KRISHNA

Baba.”

In an e-mail sent to everybody concerned explaining her behaviour  

vis-à-vis those of Vikas, she referred to even the e-mails which was sent by  

Vikas to her to his mother.   

It is not possible for us to deal with the contents of the e-mails in great  

details  but  it  is  evident  that  the  couple  had developed incompatibility  in  

respect of various aspects of life including the one as to whether Monica did  

a favour to Vikas by marrying him. They also include the children, her going  

out  of  the  home  without  informing  any  senior  member  of  the  house,  

allegation  of  extra  marital  affairs  against  Vikas;  her  taking  of  detergent  

powder  evidently  to  commit  suicide;  they  had  been  staying  in  separate  

rooms,  differences  in  respect  of  carrying  of  business,  her  becoming  

hysterical  at  some point  of  time.   Vikas even thought  that  she  had been  

trying to black-mail him by refusing to go back to India and threatening to  

commit  suicide.   The  e-mails  shows  allegations,  counter  allegations  and  

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explanations by Monica in relation thereto.  In an e-mail dated 19.6.2004 by  

Vikas, it was stated:

“I have given a lot of thought to our situation and  as you told me many times before and yesterday  also, that may be it is better that we split, I think  that yes it is better to do so.  We both are not at all  compatible to each other monica. And it is not a  wise decision to live this kind of life.   I  am not  interested  to  living  2 different  lives  in  the  same  house as you had once commented, I think this was  on  our  first  flight  to  Dubai.   Anyway Monica  I  don’t want anymore of this and neither do you, we  both have a lot of things we can do with our lives,  and I want to carry on now.  

I am also going to leave congo and go somewhere  else, I am presently talking to dad about going on  my  own,  but  its  not  easy  as  I  don’t  have  any  money  and  only  dad  can  give  me  something  to  help  me,  anyway,  congo  is  finished,  I  hate  that  place.  

I am not blaming you for anything, but it is better  that  we  part,  you  also  know  this  is  better,  and  better to swallow the pain now then live our lives  like this.  

I am sorry.

Vikas.”

In one of the e-mails Vinay Malhotra alleges humiliation by appellant  

No.2.   

20

On 14.8.2004, Vikas writes to his father-in-law by e-mail, which reads  

as under:

“I  have  never  written  nasty  emails  to  your  daughter,  on the  contrary I  always  respected her  and sent her lovely and sometimes erotic emails to  light up our love life.  But her nagging and lies that  she has kept on telling you have made it difficult  for me to try to live with a person like her.  Your  daughter  on  many  occasions  threatened  me  by  trying to suicide for example trying to jump out of  a  running  car,  drinking  poisonous  substance,  breaking things in my house, etc.  When she does  not  get  her  way she goes bizark.   And not  only  with me but on several occasions she fought with  my parents,  this  for  me is  difficult  to  accept.   I  have always been truthful to you and her, and if  you think otherwise then do as you please.  I am  not  interested in continuing my relationship with  your daughter, this is how I feel and I believe that  we would not be happy together.  

I have already asked my parents to speak to you  and do what has to be done in a civilized manner.  If your daughter thinks that I have insulted her or  hurt  her  in  anyway  then  frankly  she  has  some  mental problem, I have done nothing wrong, if I  had done so then why until last week she was so  eager to come back to me, when I have told her  already that I don’t think we can live together.  I  will not be coming to India.  I am too busy and I  have  asked  my  parents  to  settle  this  with  you,  please remember that if you try to throw dirt on me  I  will  not  stay put,  I  will  protect  my reputation.  This  can  go  as  far  as  you  want,  I  don’t  fear  anything because I have nothing to fear.

I hope that you will do what is best for everyone,  the ball in is your court.”

21

A counter  allegation  was  made  by Anil  Malhotra  to  Vikas,  which  

reads as under:

“After marriage things went well for sometime and  then suddenly you started crying foul.  You along  with my daughter came back to India on 25th May  2004.   You  profusely  apologized  for  treatment  meted out to my daughter and reassured to behave  in future and that you were a gentleman.  You and  my daughter  stayed at  your parents place during  your India visit when things appeared to be falling  in  line.   You  left  for  Africa  on  27th May  2004  leaving behind my daughter at your parental house  so  that  she  could  spend  sometime  with  your  parents and then join you in South Africa after 10  days.  After returning to Africa, for sometime you  kept on sending apologetic emails to my daughter  and then suddenly you told my daughter that you  were tired of hearing trivial complaints against her  from your mother.  Thereafter, you started writing  nasty  emails  to  my  daughter,  which  is  to  your  knowledge.  

The main purpose of my writing this email is to  express that anything that has to be done should be  done  with  a  human  face.   For  that  matter  you  should come to India within a week’s time.

Suggesting  you  to  re  introspect  may  be  a  futile  exercise.  Rest assured, we are capable of meeting  any  situation  in  dealing  with  a  gentleman  or  a  deceit.   

May like to reply to this email.”

22

There are many more e-mails exchanged between the couple as also  

their parents. However, in none of them any allegation with regard to cruelty  

or breach of trust had been made.  Such allegations are made for the first  

time  in  the  complaint  petition  as  also  in  the  application  for  grant  of  

maintenance.   

Respondent, in her complaint petition, made the following allegations  

against the appellants, which we may notice:

Appellant No.1 SH.  BHASKAR  LAL  SHARMA  – FATHER IN LAW

Appellant No.2 SMT.  VIMLA  SHARMA  –  (MOTHER IN LAW)

1.  He threatened the Complainant to  

finish  her  relationship  with  Mr.  

Vikas  Sharma as  she  was  trying  to  

control their house, children and the  

business (page 57)

1. She sent only two unmarried girls  

for  Shagun  instead  of  seven  (page  

42)

2.   He  offered  divorce  by  mutual  

consent on the payment of Rs.25 lacs  

as compensation.  He also refused to  

return the clothes/jewelry unless the  

divorce by mutual consent is granted  

by the complainant (Page 63)

2.  She said that  she  would like  the  

function  of  Engagement  Ceremony  

to  be  organized  in  a  5  Star  Hotel  

(page 43)

23

3. She also advised the respondents  

to  hold  the  marriage  ceremony  at  

Iscon Temple (page 44)

4.  She  also  took  all  the  gifts/cash  

given  by  the  invitees/guests  (page  

46) 5.   She  made  complaints  on  trivial  

matters.  She  kicked  the  respondent  

with her leg and told that her mother  

is a liar (page 51) 6.  She poisoned the ears of her son  

(page 52).  7.  She gave two used lady suits of  

her  daughter  to  the  Complainant  

(page 57). 8.  She gave perpetual sermons to the  

Complainant (page 58) 9.   She told her son Vikas Sharma  

over  phone  that  kids  do  not  like  

anything  prepared  by  the  

Complainant (page 59) 10. She humiliated and harassed by  

24

repeatedly saying that her son would  

be  divorced  for  the  second  time  

whereas  the  Complainant  would  be  

divorced for the first time.  

Ex facie no case has been made out under Section 498A of the IPC so  

far as the appellants are concerned.  

The allegations relating to the place where the marriage took place has  

nothing to do with an offence under Section 498A of the IPC.  Allegations  

that appellant No.2 kicked the respondent with her leg and told her that her  

mother  to  be  a  liar  may  make  out  some  other  offence  but  not  the  one  

punishable under Section 498A. Similarly her allegations that the appellant  

No.2 poisoned the ears of her son against the respondent; she gave two used  

lady suits of her daughter to the complainant and has been given perpetual  

sermons to  the  complainant  could  not  be  said  to  be  offences  punishable  

under Section 498A. Even threatening that her son may be divorced for the  

second time could not bring out the offence under Section 498A of the IPC.   

The scope of the aforementioned provision came up for consideration  

in some of the decisions of this Court.  We may notice a few.  

25

In Noorjahan vs. State rep. by D.S.P, [(2008) 11 SCC 55], this Court  

held:

“16. Consequences of cruelty which are likely to  drive a woman to commit suicide or to cause grave  injury  or  danger  to  life,  limb or  health,  whether  mental or physical, of the woman is required to be  established in order to bring home the application  of Section 498-A IPC. Cruelty has been defined in  the Explanation for the purpose of Section 498-A.  Substantive  Section  498-A IPC and  presumptive  Section  113-B  of  the  Evidence  Act  have  been  inserted in the respective statutes by the Criminal  Law (Second Amendment)  Act, 1983. It  is to be  noted that Sections 304-B and 498-A IPC cannot  be held to be mutually inclusive. These provisions  deal  with  two  distinct  offences.  It  is  true  that  cruelty is a common essential to both the sections  and  that  has  to  be  proved.  The  Explanation  to  Section 498-A gives the meaning of “cruelty”.

17. The object for which Section 498-A IPC was  introduced is amply reflected in the Statement of  Objects and Reasons while enacting the Criminal  Law  (Amendment)  Act,  1983  (46  of  1983).  As  clearly stated therein the increase in the number of  dowry deaths is a matter of serious concern. The  extent of the evil has been commented upon by the  Joint  Committee  of  the  Houses  to  examine  the  work of the Dowry Prohibition Act, 1961. In some  cases, cruelty of the husband and the relatives of  the  husband  which  culminate  in  suicide  by  or  murder  of  the  helpless  woman  concerned,  constitute  only  a  small  fraction  involving  such  cruelty. Therefore, it was proposed to amend IPC,  the  Code  of  Criminal  Procedure,  1973  and  the  Evidence Act suitably to deal effectively not only  with  cases  of  dowry  deaths  but  also  cases  of  cruelty to married women by the husband, in-laws  and relatives. The avowed object is to combat the  menace of dowry death and cruelty.”

It was observed in the fact situation obtaining therein:

26

“18. So far as the present appellant is concerned,  the evidence is  inadequate to show that  she was  party  to  any  demand  for  dowry.  In  fact,  PW  1  stated  that  when  she  went  to  the  place  of  her  daughter the appellant was present along with A-1  and  A-2.  The  said  A-1  demanded  jewels  and  presentation of Rs. 5000 for Ramzan. She accepted  that she told A-1 and A-2 that she will send the  same  within  a  week.  The  next  statement  of  this  witness is very significant. She (the appellant) told  that  two  months’  time  will  be  sufficient  for  offering the presentation. In other words, she did  not make any demand for dowry. That aspect has  been accepted by PW 1. Significantly, this witness  in  her  cross-examination  had  admitted  that  the  appellant is residing at Coimbatore for the last 35  years.  She  has  categorically  admitted  that  while  she  went  to  the  house  of  her  daughter,  she  (the  appellant) was not present. Therefore, there is no  evidence  to  show  that  the  appellant  was  either  present when the demand was made or she herself  made any demand.”

In  Sushil Kumar Sharma  vs.  Union of India & Ors. [(2005) 6 SCC  

281], this Court held:

“10. The  object  for  which  Section  498-A  IPC  was introduced is amply reflected in the Statement  of  Objects  and  Reasons  while  enacting  the  Criminal  Law  (Second  Amendment)  Act  46  of  1983. As clearly stated therein the increase in the  number  of  dowry  deaths  is  a  matter  of  serious  concern.  The  extent  of  the  evil  has  been  commented  upon by the  Joint  Committee  of  the  Houses  to  examine  the  work  of  the  Dowry  Prohibition  Act,  1961.  In  some cases,  cruelty  of  the husband and the relatives of the husband which  culminate in suicide by or murder of the helpless  woman concerned, constitute only a small fraction  involving such cruelty. Therefore, it was proposed  to  amend IPC,  the  Code  of  Criminal  Procedure,  1973  (in  short  “CrPC”)  and  the  Evidence  Act  suitably to deal effectively not only with cases of  dowry deaths but also cases of cruelty to married  women by the husband, in-laws and relatives. The  avowed object is to combat the menace of dowry  death and cruelty.

27

19. The object of the provision is prevention of  the  dowry  menace.  But  as  has  been  rightly  contended by the petitioner many instances  have  come to light where the complaints are not bona  fide and have been filed with oblique motive.  In  such cases acquittal of the accused does not in all  cases wipe out the ignominy suffered during and  prior to trial. Sometimes adverse media coverage  adds to the misery. The question, therefore, is what  remedial measures can be taken to prevent abuse  of the well-intentioned provision. Merely because  the provision is constitutional and intra vires, does  not  give  a  licence  to  unscrupulous  persons  to  wreak personal vendetta or unleash harassment. It  may,  therefore,  become  necessary  for  the  legislature  to  find  out  ways  how the  makers  of  frivolous  complaints  or  allegations  can  be  appropriately dealt with. Till then the courts have  to  take  care  of  the  situation  within  the  existing  framework. As noted above the object is to strike  at the roots of dowry menace. But by misuse of the  provision a new legal terrorism can be unleashed.  The provision is  intended to be used as a shield  and  not  as  an  assassin’s  weapon.  If  the  cry  of  “wolf” is made too often as a prank, assistance and  protection  may  not  be  available  when the actual  “wolf”  appears.  There  is  no  question  of  the  investigating  agency  and  courts  casually  dealing  with  the  allegations.  They  cannot  follow  any  straitjacket  formula  in  the  matters  relating  to  dowry tortures, deaths and cruelty. It cannot be lost  sight of that the ultimate objective of every legal  system is to arrive at the truth, punish the guilty  and protect the innocent. There is no scope for any  preconceived  notion  or  view.  It  is  strenuously  argued  by  the  petitioner  that  the  investigating  agencies and the courts start with the presumptions  that  the  accused  persons  are  guilty  and  that  the  complainant is speaking the truth. This is too wide  and  generalised  a  statement.  Certain  statutory  presumptions  are  drawn  which  again  are  rebuttable.  It  is  to  be  noted  that  the  role  of  the  investigating agencies and the courts is that of a  watchdog and not of a bloodhound.  It  should be  their  effort  to see that  an innocent  person is  not  made to suffer on account of unfounded, baseless  and  malicious  allegations.  It  is  equally  undisputable that in many cases no direct evidence  is  available  and  the  courts  have  to  act  on  circumstantial  evidence. While dealing with such  cases, the law laid down relating to circumstantial  evidence has to be kept in view.”

28

The jurisdiction of the High Court to quash an order of summoning  

and/or a criminal proceeding as also this Court are well known.  The parties  

have relied upon the decisions of this Court in State of Haryana vs. Bhajan  

Lal [1992 (Supp.) 1 SCC 335]. We may notice the categories 1, 3, 5 and 7  

mentioned in Para 102 of the said decision, which are as under:

“(1) Where  the  allegations  made  in  the  first  information report  or the complaint,  even if they  are taken at their face value and accepted in their  entirety do not prima facie constitute any offence  or make out a case against the accused.

xxx xxx xxx (3) Where the uncontroverted allegations made  in the FIR or complaint and the evidence collected  in  support  of  the  same  do  not  disclose  the  commission of any offence and make out a case  against the accused.

xxx xxx xxx (5) Where  the  allegations  made in  the  FIR or  complaint are so absurd and inherently improbable  on the basis of which no prudent person can ever  reach  a  just  conclusion  that  there  is  sufficient  ground for proceeding against the accused.

xxx xxx xxx (7) Where a  criminal  proceeding is  manifestly  attended  with  mala  fide  and/or  where  the  proceeding  is  maliciously  instituted  with  an  ulterior  motive  for  wreaking  vengeance  on  the  accused and with a view to spite him due to private  and personal grudge.”

29

{See also Chunduru Siva Ram Krishna & Anr. vs. Peddi Ravindra Babu &  

Anr. [2009 (4) SCALE 685], Kailashi Bai vs. Aarti Arya & Anr. [2009 (7)  

SCALE 304}

Does this case fall under any of the categories is the question.

Before  however,  we  consider  the  necessary  ingredients  of  the  

aforementioned dicta vis-à-vis the facts involved in the present case, we may  

also notice some other decisions of this Court.   

In Onkar Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr. [2008  

(1) JCC 65], this Court opined as under:

“18. In the present case, from a plain reading of the  complaint filed by the complainant on 8-11-1994,  extracted above, it is clear that the facts mentioned  in the complaint, taken on their face value, do not  make out a prima facie case against the appellants  for  having  dishonestly  misappropriated  the  stridhan of the complainant, allegedly handed over  to  them,  thereby  committing  criminal  breach  of  trust  punishable  under  Section  406  IPC.  It  is  manifestly clear from the afore extracted complaint  as also the relevant portion of the charge-sheet that  there  is  neither  any  allegation  of  entrustment  of  any  kind  of  property  by  the  complainant  to  the  appellants  nor  its  misappropriation  by  them.  Furthermore,  it  is  also  noted in  the  charge-sheet  itself  that  the  complainant  had  refused  to  take  articles back when this offer was made to her by  the investigating officer. Therefore, in our opinion,  the very prerequisite of entrustment of the property  and  its  misappropriation  by  the  appellants  are  lacking in the instant case. We have no hesitation  in  holding  that  the  learned  Additional  Sessions  Judge and the High Court erred in law in coming  to the conclusion that a case for framing of charge  under Section 406 IPC was made out.

19. As regards the applicability of Section 498-A  IPC, in the complaint dated 8-11-1994 there is not  

30

even a whisper of a wilful conduct of Appellants 1  and 2  of  harassment  of  the  complainant  at  their  hands  with  a  view  to  coercing  her  to  meet  any  unlawful  demand  by  them  so  as  to  attract  the  provisions of Section 498-A read with Explanation  thereto.  The  complaint  refers  to  the  talk  the  complainant  purports  to  have  had  with  her  husband, Appellant 3, who is alleged to have told  her  to  come  to  Bijnore  if  she  apologises  to  his  father; keeps him happy; obeys his sister and talks  to  her  father  (the  complainant’s)  to  give  her  Rs.50,000  and  VCR and  brings  these  articles  to  Bijnore.  We are  convinced that  the  allegation  of  misbehaviour on the part of Appellants 1 and 2 and  the demand of Rs. 50,000 and VCR by them made  by  the  complainant  in  her  subsequent  statement  dated 4-4-1995, was an afterthought and not bona  fide.”

In  Ramesh  & Ors.  vs.  State  of  T.N.  [(2005)  3  SCC 507],  it  was  

opined:

“6. Before  we  proceed  to  deal  with  the  two  contentions  relating  to  limitation  and  territorial  jurisdiction,  we  would  like  to  consider  first  the  contention  advanced  on  behalf  of  the  appellant  Gowri Ramaswamy. Looking at the allegations in  the FIR and the contents of charge-sheet, we hold  that none of the alleged offences viz. Sections 498- A, 406 IPC and Section 4 of the Dowry Prohibition  Act are made out against her. She is the married  sister  of  the  informant’s  husband  who  is  undisputedly  living  in  Delhi  with  her  family.  Assuming  that  during  the  relevant  time  i.e.  between March and October 1997, when the 6th  respondent  (informant)  lived  in  Mumbai  in  her  marital home, the said lady stayed with them for  some days, there is nothing in the complaint which  connects her with an offence under Section 498-A  or  any  other  offence  of  which  cognizance  was  taken. Certain acts of taunting and ill-treatment of  the informant by her  sister-in-law (the appellant)  were  alleged  but  they  do  not  pertain  to  dowry  demand  or  entrustment  and  misappropriation  of  property  belonging  to  the  informant.  What  was  said  against  her  in  the  FIR  is  that  on  some  

31

occasions,  she  directed  the  complainant  to  wash  WC and she used to abuse her and used to pass  remarks  such  as  “even  if  you  have  got  much  jewellery, you are our slave”. It is further stated in  the  report  that  Gowri  would  make  wrong  imputations  to  provoke  her  husband  and  would  warn  her  that  nobody  could  do  anything  to  her  family.  These  allegations,  even  if  true,  do  not  amount to harassment with a view to coercing the  informant  or  her  relation  to  meet  an  unlawful  demand for any property or valuable security. At  the most,  the allegations reveal that her sister-in- law Gowri  was  insulting  and making  derogatory  remarks  against  her  and behaving  rudely  against  her.  Even  acts  of  abetment  in  connection  with  unlawful  demand  for  property/dowry  are  not  alleged  against  her.  The  bald  allegations  made  against  her  sister-in-law  seem  to  suggest  the  anxiety of the informant to rope in as many of the  husband’s  relations  as  possible.  Neither  the  FIR  nor the charge-sheet furnished the legal basis to the  Magistrate  to  take  cognizance  of  the  offences  alleged against the appellant Gowri Ramaswamy.  The High Court ought not to have relegated her to  the  ordeal  of  trial.  Accordingly,  the  proceedings  against  the  appellant  Gowri  Ramaswamy  are  hereby quashed and her appeal stands allowed.”

In  Chunduru Siva Ram Krishna & Anr. vs.  Peddi Ravindra Babu &  

Anr. [supra], it is stated:

“17. The  aforesaid  discussion  clearly  pin-point  the legal position on the subject which is by now  well settled.  The principle that could be culled out  is  that  when  at  an  initial  stage  a  prosecution  is  asked to be quashed, the test to be applied by the  court  is  as  to  whether  the  uncontroverted  allegations  as  made in the complaint  filed prima  facie establish the offence.  It is also for the court  to take into consideration any special feature that  may appear in a particular case while considering  

32

whether it is expedient and in the interest of justice  to permit a prosecution to continue.  This is so on  the basis that the court cannot be utilized for any  oblique purpose.  The tests that are laid down in  the case of Bhajan Lal (supra) are required to be  applied very carefully and minutely when a prayer  for quashing is laid down before the Court.”

In Devendra & Ors. vs. State of U.P. & Anr. [2009 (7) SCALE 613],  

it has been held:

“26. There  is  no  dispute  with  regard  to  the  aforementioned propositions of law.  However, it  is now well-settled that the High Court ordinarily  would  exercise its jurisdiction under Section 482  of  the  Code  of  Criminal  Procedure  if  the  allegations made in the First Information Report,  even if given face value and taken to be correct in  their entirety, do not make out any offence.  When  the  allegations  made  in  the  First  Information  Report  or  the  evidences  collected  during  investigation do not  satisfy the ingredients  of  an  offence, the superior courts would not encourage  harassment  of  a  person  in  a  criminal  court  for  nothing.”

Reliance  has  been placed  by Mr.  Malhotra  on the  decision  of  this  

Court  in  Mahila  Vinod Kumari  vs.  State  of  Madhya Pradesh [2008 (10)  

SCALE 97].  We are not concerned with the same as the same deals with the  

question of perjury.   

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The complainant further did not stop there but also filed a complaint  

petition that she was cheated as Vikas and his parents did not disclose about  

his marital state of affairs in regard to the first marriage and/or the decree of  

divorce obtained by him.  We do not intend to make any comment  with  

regard to the correctness or otherwise of the statements made therein as the  

matter is not before us.   

We have,  however,  made  note  of  the  litigations  filed  between  the  

parties in great detail.  These litigations, if a holistic view is taken, depict a  

sad state of affairs, namely, that the respondent, on the one hand, intends to  

take all coercive measures to secure the presence of her husband and the  

appellants in India in various cases filed by her and, on the other hand, she  

had  repeatedly  been  making  attempts  of  conciliation.  

Endeavour/conciliations  were made by the  Delhi  High Court  as also this  

Court at various stages.  The High Court,  as indicated hereinbefore,  in its  

order  dated  6.10.2005  passed  in  Criminal  Revision  No.  452  of  2005  

categorically held that the marriage has irretrievably broken down.  Be that  

as it may, we are of the opinion that keeping in view the ingredients of the  

provisions of Sections 498A of the IPC, no case has been made out against  

the appellants herein.  

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We  may  now  consider  the  question  as  to  whether  the  complaint  

petition discloses any offence under Section 406 of the IPC.   

At the outset, we may notice as to what is ‘Streedhana’

In  Rashmi Kumar (Smt.)  vs.  Mahesh Kumar Bhada [(1997) 2 SCC  

397], the meaning of Stridhana has been taken from Mayne’s Hindu Law &  

Usage (13th Edn.).  It was opined:

“9. A woman’s power of disposal, independent  of  her  husband’s  control,  is  not  confined  to  saudayika but extends to other properties as well.  Devala  says:  “A  woman’s  maintenance  (vritti),  ornaments,  perquisites  (sulka),  gains  (labha),  are  her stridhana. She herself has the exclusive right to  enjoy it. Her husband has no right to use it except  in  distress....”  In  N.R.  Raghavachariar’s  Hindu  Law  —  Principles  and  Precedents,  (8th  Edn.)  edited  by  Prof.  S.  Venkataraman,  one  of  the  renowned Professors of Hindu Law para 468 deals  with “Definition of Stridhana”. In para 469 dealing  with “Sources of acquisition” it is stated that the  sources  of  acquisition  of  property  in  a  woman’s  possession  are:  gifts  before  marriage,  wedding  gifts,  gifts  subsequent  to  marriage  etc.  Para  470  deals with “Gifts to a maiden”. Para 471 deals with  “Wedding  gifts”  and  it  is  stated  therein  that  properties  gifted  at  the  time  of  marriage  to  the  bride,  whether  by  relations  or  strangers,  either  Adhiyagni  or  Adhyavahanika,  are  the  bride’s  stridhana. In para 481 at page 426, it is stated that  ornaments presented to the bride by her husband or  father  constitute  her  Stridhana  property.  In  para  487 dealing with “powers during coverture” it  is  stated  that  saudayika  meaning  the  gift  of  affectionate  kindred,  includes  both  Yautaka  or  gifts received at the time of marriage as well as its  negative  Ayautaka.  In  respect  of  such  property,  

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whether given by gift  or will  she is the absolute  owner and can deal with it in any way she likes.  She may spend,  sell  or  give it  away at  her  own  pleasure. 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.”

It was furthermore held:

“…The  expression  “entrustment”  carries  with  it  the implication that the person handing over any  property  or  on  whose  behalf  that  property  is  handed over to another, continues to be its owner.  Entrustment  is  not  necessarily  a  term of  law.  It  may  have  different  implications  in  different  contexts.  In  its  most  general  significance,  all  its  imports is  handing over the possession for some  purpose which may not imply the conferment  of  any  proprietary  right  therein.  The  ownership  or  beneficial  interest  in  the  property  in  respect  of  which criminal breach of trust is alleged to have  been  committed,  must  be  in  some  person  other  than  the  accused  and  the  latter  must  hold  it  on  account  of  some person or  in  some way for  his  benefit….”

The offence of criminal breach of trust as defined in Section 405 of  

the IPC may be held to have been committed when a person who had been  

entrusted in any manner with the property or has otherwise dominion over it,  

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dishonestly misappropriates it or converts it to his own use, or dishonestly  

uses it, or disposes it of, in violation of any direction of law prescribing the  

mode  in  which  the  trust  is  to  be  discharged,  or  of  any  lawful  contract,  

express  or  implied,  made  by  him  touching  such  discharge,  or  willfully  

suffers any other person so to do.

The essential ingredients for establishing an offence of criminal breach of  

trust as defined in Section 405 and punishable under Section 406 IPC with  

sentence for a period up to three years or with fine or with both, are:  

(i)  entrusting  any  person  with  property  or  with  any  dominion  over  

property;  

(ii) the person entrusted dishonestly misappropriating or converting to his  

own use that property; or dishonestly using or disposing of that property or  

wilfully suffering any other person so to do in violation of any direction of  

law prescribing the mode in which such trust is to be discharged, or of any  

legal contract made touching the discharge of such trust.

We  have  noticed  heretobefore  that  the  correspondences  exchanged  

between  the  spouses  or  by  and  between  Vikas  and  his  in-laws  do  not  

disclose any allegation which would amount to criminal misconduct on the  

part of the appellants.  

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With the aforementioned backdrop of events, we may now notice the  

allegations made in the complaint petition filed by the respondent against the  

appellants.

The  only  allegation  which  brings  the  case  within  the  purview  of  

Section 406 is that appellant No.2 had taken all the gifts/cash given by the  

invitees/guests.  Technically, this allegation would attract the definition of  

breach of trust within the meaning of Section 405 of the IPC.   

Entrustment of some properties and/or dominion over them, if any,  

therefore,  is attributed only against  the appellant No.2.  Other allegations  

made against the appellants are general in nature.   

Entrustment is said to have been made to the appellants and/or their  

son.   

No definite case of entrustment of any property has been made against  

the appellant No.1.  

He is only said to have given back to the complainant’s parent the  

entire cloth and jewelry.  No demand was made by the respondent.  

Offering of  Rs.25 lakhs for  grant  of  divorce  by mutual  consent  as  

compensation to the complainant, which is three times of the amount of the  

value of ‘Streedhana’ and/or amount spent by the complainant’s father per se  

does not constitute any offence of Section 406 of the Code.  

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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.  

In State of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457], it  

has been held:

“4. Section 406 IPC deals with punishment for  criminal breach of trust.  In a case under Section  406 the prosecution is  required to prove that the  accused  was  entrusted  with  property  or  he  had  dominion over the property and that  the accused  misappropriated  or  converted the  property  to  his  own use  or  used  or  disposed  of  the  property  or  willfully  suffered  any  person  to  dispose  of  the  property  dishonestly  or  in  violation  of  any  direction of law prescribing the mode in which the  entrusted  property  should  be  dealt  with  or  any  legal  contract  express  or  implied  which  he  had  entered into relating to carrying out of the trust.”

{See  also  Harmanpreet  Singh  Ahluwalia  &  Ors.  vs.  State  of  Punjab  &  

Ors.[2009 (7) SCALE 85]}

We, therefore, are of the opinion that prima facie a case under Section  

406 of the IPC has been made out only against appellant No.2.

Before parting, we may observe that courts at all levels have made  

endeavours to bring about a settlement between the parties. The High Court  

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in  the  earlier  round  of  proceedings  probably  rightly  observed  that  the  

marriage between the Monica and Vikas has irretrievably been broken down.  

The appeals are allowed to the extent mentioned hereinabove.   

The summoning order dated 21.3.2005 passed against the appellants  

except Appellant No.2 is set aside.  It is clarified that the proceedings can  

continue only against the appellant No.2, that too in respect of Section 406  

IPC only.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

NEW DELHI; JULY 27, 2009

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