Judgment:
S.K. Mahajan, J.
(1) One Shashibala, daughter of the complainant Om Prakash, was married to petitioner No.2 Bhupinder Sachdeva on 18th November, 1993. The marriage was arranged after the complainant had given an advertisement in a local newspaper for a bridegroom for his daughter. The father of petitioner No.2 had also given a similar advertisement looking for a bride for his son. About three months before the marriage, petitioner No.1, father of petitioner No.2, is alleged to have approached the brother-in-law of the complainant and demanded in dowry a motor car, fridge, television and other domestic items of luxury. The brother-in-law of the complainant did not agree to give car in dowry and the complainant who was also present at that time did not speak anything. On 16th November, 1993, the sagan ceremony had taken place in which the complainant is alleged to have given a colour television, re- 391 frigerator, Yamaha motorcycle, washing machine, a gold locket weighing about 27 gms. other jewellery, wrist watch and cash as well. The marriage took place on 18th November, 1993. Within a week of marriage, the petitioner No.2 and his father informed the daughter of the complainant to ask her father to give a car. As the complainant was not in a position to give a car, the petitioners are alleged to have started harassing her. The daughter of the complainant talked to the complainant on phone about the harassment meted out to her at which the complainant and his wife went to their daughter's matrimonial home to enquire as to why they were harassing their daughter, at which the father of petitioner No.2 told them that a car was demanded in marriage and as the same was not given, they did not want to keep other articles in their house. At this, the daughter of the complainant started weeping. Thereafter several phone calls were alleged to have been made by daughter of the complainant about the harassment which was meted out to her regarding the demand for a car. On or about 6th December, 1993 the daughter of the complainant is stated to have gone to Aurangabad along with her husband. From Aurangabad a telephone call is stated to have been received by the complainant from her daughter about some other woman who was staying in the hotel with whom her husband was allegedly having relations. However, during the conversation the telephone was disconnected. On 18th December, 1993 a telephone call was received by the complainant from his son-in-law informing the complainant that his daughter had expired at Aurangabad. The complainant reached Aurangabad and on the basis of his complaint a case under section 498-A/306/.34 Indian Penal Code was registered against the petitioners 1 & 2 and one Bhupinder Kaur at Ps Kanti Chowk, Aurangabad, Maharashtra. On a representation having been made by the complainant Section 304-B was subsequently added.
(2) As the dowry articles which had been given to his daughter by the complainant were being mis-appropriated by the petitioners, he lodged a complaint on the basis of which an Fir under Section 406/120-B Indian Penal Code was registered against the petitioners. Aggrieved by the registration of a case under Section 406/120-B Indian Penal Code, the petitioners have filed this petition for quashing the same.
(3) The contention of the petitioners is that under Section 405 Indian Penal Code, it is only in a case of dishonest misappropriation of property by a person that he can be charged with an offence punishable under section 406 Indian Penal Code The contention is that it has nowhere been alleged that the petitioners were trying to dishonestly misappropriate or convert to their own use the property which had been given to them in trust. In support of his case, learned counsel for the petitioners has relied upon the judgments reported as Sardar Singh Vs . State of Haryana, : 1977CriLJ1158 ; Mahipal Baladur Singh Vs . State, 1986 Criminal Law Journal 1851; and State of U.P. Vs.R.K.Shrivastava : 1989CriLJ2301 . '
(4) In Sardar Singh v. State of Haryana (Supra), the appellant was posted as a Patwari and he took charge of his post on 6th November, 1967. One of the books which was handed over to him at the time of taking charge was the receipt book. The case against the appellant was that he had committed a criminal breach of trust in respect of the receipt book and other documents as also an amount of Rs-26.50 paise which had been received by him in his capacity as Patwari for purposes of giving certified copies and which he failed to account for at the time when the charge was taken from him. The Supreme Court while dealing with the case held that an essential ingredient of an offence under Section 405 Indian Penal Code was that the accused being in any manner entrusted with the property or with the domain over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction or law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied, which he has made touching the discharge of such trust. In the facts of that case it was held that though the appellant was admittedly entrusted with the receipt book but there was no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It was further held that it was quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to-the superior authorities. I just fail to understand as to how this judgment is of any assistance to the petitioners. Firstly, it was a case where the Court was finally disposing of the matter and it was not concerned at the initial stages as to whether prima facie case under Section 406 was made out in the Fir and secondly, in this case the prosecution had not been able to establish that the appellant had dishonestly misappropriated the receipt book or converted it to his own use. In the present case, there are definite allegations made against the petitioners I to 4 that the property which had been entrusted to them is not being returned. The only inference that can be drawn is that the said persons are trying to dishonestly misappropriate the same to their own use.
(5) IN- State of U.P. v. R.K.Shrivastava (Supra), the facts were that a case under Section 420/468/471 read with Section 5(l)(d) of the Prevention of Corruption Act was registered against the accused persons on the allegations that while they were posted and functioning as Accountant and Clerk-cum-go down keeper in the bank, they entered into a criminal conspiracy with certain other persons to cheat the bank and in pursuance thereto an amount of Rs.54,600.00 was withdrawn by making false credit entry in the books of accounts and connected credit and debit vouchers were also prepared and passed by the accused. It was on this basis that the Court held that the allegations in the Fir appeared to be vague and where the Fir prima facie makes out no offence of criminal misappropriation proceedings' instituted on the basis of the Fir were liable to be quashed. This judgment is also not of any assistance to the petitioners, as in the present case, as I have already held, definite allegations not only of the entrustment of the property have been made against the pet'tioners 1 to 4 but it has also been stated that the said petitioners are refusing to return the same which clearly imply that the said petitioners' are trying to dishonestly misappropriate the same for their own use.
(6) The judgment of Mahipal Bahadur Singh v. State (Supra), is also not of any assistant to the petitioners as the facts in that case were wholly different and this judgment is not applicable to the facts and circumstances of the present case.
(7) It is no doubt true that if the allegations made in the Fir taken at their face value and accepted in their entirety did not constitute an offence, the criminal proceedings instituted on the basis of Fir should be quashed. Flowever, in my view, in the present case the allegations made in the Fir do make out a case against petitioners 1 to 4. There is entrustment of property to the said petitioners and there are allegations of refusal by the said petitioners to return the said property which was given to them in trust and, in my opinion, on the basis of the allegations made in the Fir, prim facie, a case under Section 406 is made out against the petitioners 1to 4. I, thereforee, see no reason to quash the Fir as far as the same relates to petitioners 1 to 4.
(8) As regards petitioners 5 to 7, I find that there are no allegations of entrustment of the property to them and in the absence of any allegations of entrustment against them there cannot be any question of misappropriation of the same. The Fir does not disclose any case against the sa.id petitioners. I, thereforee, quash the Fir so far as it relates to petitioners 5 to 7.
(9) With these observations, the petition stands disposed of.