Kamlabai Vs. Manoharlal and ors. - Court Judgment

Excerpt:
- - 2, but all these persuasions failed and she ultimately came out with a notice through her counsel given to both the respondents on 4-11-89, which has been exhibited as ex. disgusted with such promises the ultimately served a notice, which the respondents refused to receive and the refusal was as endorsed on the envelope on 13-11-1985. if this is the date of refusal, as it ought to be treated, the complaint filed on 19-2-1986 is well within time. both, on facts as well as law, the courts below have erred and such an order cannot be allowed to stand.orderv.d. gyani, j.1. by this petition under section 482, cr. p.c., the petitioner seeks to challenge the order dated 31-8-87, passed by the addl, sessions judge, neemuch, in criminal revision no. 129 of 1987, thereby upholding the order dated 21-4-87, passed by the judicial magistrate, ist class, neemuch, in criminal case no. 20 of 1986, holding the complaint filed by the petitioner as barred by time and dismissing the same on that count.2. a few facts of the case, necessary for disposal of this petition, may be noted : the petitioner is the wife of the first respondent and daughter-in-law of respondent no. 2. her marriage was solemnised on 10-2-72, in village chittakhedi, police station jiran, district mandsaur, but as can be gathered from the allegations made in the complaint, there was no conjugal harmony between the two and ultimately the petitioner was required to separate herself because of illtreatment and at times indifferent attitude on the part of her husband. she started serving as a school mistress and is also presently serving. her in-laws live in village ringnod, tahsil jaora. it has been stated by the complainant in her evidence, recorded on 3-7-87, that while she was about to go for a bath, her mother-in-law sampatbai persuaded her to take out the ornaments, which she was wearing. accordingly she took out the ornaments presented to her on the eve of her marriage and since then the ornaments were not returned despite repeated demands and entreaties on her part. there was a quarrel in the family on account of her serving as a school teachers, which she has been serving since 1974. the whole tenor of her evidence is that she was forced to serve as a teacher.3. she was relentlessly pressing for return of all those ornaments and the in-laws avoided returning the same under some pretext or other. according to her, these orenaments were presented to her in kanyadan and they were her absolute property. she has also stated on oath that her husband promised to return the ornaments, for which he was perusading his father, i.e. respondent no. 2, but all these persuasions failed and she ultimately came out with a notice through her counsel given to both the respondents on 4-11-89, which has been exhibited as ex.p/11 before the trial court. this notice has been returned with an endorsement 'refused' and in absence of even a suggestion in cross-examination when this notice was tendered in evidence to the complainant kamlabai, it would not be wrong to impute knowledge of the contents of this notice to the respondents. during the course of her cross-examination kamlabai was questioned as to when she made her first demand and her reply to this question was 'when she started serving' and just in the next breath she added that 'she had started serving in the year 1974'. when pressed further she stated that it was in the year 1974 that i demanded the necklace and have been ever since continuously demanding the ornaments and at times it resulted in wordy dual. she has further stated that although initially she did not talk to her father-in-law (as is customary amongst some families), but after having started serving she also started talking to her father-in-law.4. now, it is this first demand made in the year 1974, which has been made the basis of throwing out the complaint as barred by time.5. shri siddique, learned counsel for the petitioner submitted that the courts below have taken a distorted view of the evidence on record, very conveniently ignoring the fact that the return of ornaments was being continuously pressed for by the complainant. a stray sentence from the evidence has been picked up to oust the complainant from the court.6. shri jain, learned counsel appearing for the respondent on the other hand submitted that the view taken by the courts below is in complete accord with section 469, cr. p.c. and does not call for any interference.7. there is no dispute that in a case of offence under section 406, ipc, the period of limitation would be three years. the dispute is about the date from which this period is to commence. the courts below have taken the date of first demand made in the year 1974, while the complaint came to be filed on 19-2-1986. too obviously it was barred by time if the date of first demand is made the basis for calculating the time prescribed under the law. what has been missed by the courts below is the essential ingredient of the offence of criminal breach of trust, as defined under section 405, ipc. what would go to constitute criminal breach of trust is not the demand, but the refusal to accede to that demand made and even of one goes by the statement, as made by the complainant, there is not even a remotest indication that when she demanded her ornaments way-back in 1974, they were refused to be returned by either of the respondents. so long as there is no refusal on the part of the accused, there is no question of any breach of trust. refusal may be even by conduct, but the evidence suggests that a promise, though evasive, was held out to the complainant for return of the ornaments. disgusted with such promises the ultimately served a notice, which the respondents refused to receive and the refusal was as endorsed on the envelope on 13-11-1985. if this is the date of refusal, as it ought to be treated, the complaint filed on 19-2-1986 is well within time.8. courts below have completely ignored the essential ingredients of the offence and have misapplied section 469, cr. p.c. by picking up a stray sentence from the evidence of the complainant. both, on facts as well as law, the courts below have erred and such an order cannot be allowed to stand. it is liable to be set aside and is accordingly set aside. complaint henceforth shall proceed in accordance with law. considering the time that has elapsed, it is to be expected that the trial court shall expeditiously dispose of the case. parties shall appear before the trial court on 30-1-1990.

Judgment:
ORDER

V.D. Gyani, J.

1. By this petition under Section 482, Cr. P.C., the petitioner seeks to challenge the order dated 31-8-87, passed by the Addl, Sessions Judge, Neemuch, in Criminal Revision No. 129 of 1987, thereby upholding the order dated 21-4-87, passed by the Judicial Magistrate, Ist Class, Neemuch, in Criminal Case No. 20 of 1986, holding the complaint filed by the petitioner as barred by time and dismissing the same on that count.

2. A few facts of the case, necessary for disposal of this petition, may be noted : The petitioner is the wife of the first respondent and daughter-in-law of respondent No. 2. Her marriage was solemnised on 10-2-72, in village Chittakhedi, police station Jiran, district Mandsaur, but as can be gathered from the allegations made in the complaint, there was no conjugal harmony between the two and ultimately the petitioner was required to separate herself because of illtreatment and at times indifferent attitude on the part of her husband. She started serving as a school mistress and is also presently serving. Her in-laws live in village Ringnod, Tahsil Jaora. It has been stated by the complainant in her evidence, recorded on 3-7-87, that while she was about to go for a bath, her mother-in-law Sampatbai persuaded her to take out the ornaments, which she was wearing. Accordingly she took out the ornaments presented to her on the eve of her marriage and since then the ornaments were not returned despite repeated demands and entreaties on her part. There was a quarrel in the family on account of her serving as a school teachers, which she has been serving since 1974. The whole tenor of her evidence is that she was forced to serve as a teacher.

3. She was relentlessly pressing for return of all those ornaments and the in-laws avoided returning the same under some pretext or other. According to her, these orenaments were presented to her in Kanyadan and they were her absolute property. She has also stated on oath that her husband promised to return the ornaments, for which he was perusading his father, i.e. respondent No. 2, but all these persuasions failed and she ultimately came out with a notice through her counsel given to both the respondents on 4-11-89, which has been exhibited as Ex.P/11 before the trial Court. This notice has been returned with an endorsement 'refused' and in absence of even a suggestion in cross-examination when this notice was tendered in evidence to the complainant Kamlabai, it would not be wrong to impute knowledge of the contents of this notice to the respondents. During the course of her cross-examination kamlabai was questioned as to when she made her first demand and her reply to this question was 'when she started serving' and just in the next breath she added that 'she had started serving in the year 1974'. When pressed further she stated that it was in the year 1974 that I demanded the necklace and have been ever since continuously demanding the ornaments and at times it resulted in wordy dual. She has further stated that although initially she did not talk to her father-in-law (as is customary amongst some families), but after having started serving she also started talking to her father-in-law.

4. Now, it is this first demand made in the year 1974, which has been made the basis of throwing out the complaint as barred by time.

5. Shri Siddique, learned counsel for the petitioner submitted that the Courts below have taken a distorted view of the evidence on record, very conveniently ignoring the fact that the return of ornaments was being continuously pressed for by the complainant. A stray sentence from the evidence has been picked up to oust the complainant from the Court.

6. Shri Jain, learned counsel appearing for the respondent on the other hand submitted that the view taken by the Courts below is in complete accord with Section 469, Cr. P.C. and does not call for any interference.

7. There is no dispute that in a case of offence under Section 406, IPC, the period of limitation would be three years. The dispute is about the date from which this period is to commence. The Courts below have taken the date of first demand made in the year 1974, while the complaint came to be filed on 19-2-1986. Too obviously it was barred by time if the date of first demand is made the basis for calculating the time prescribed under the law. What has been missed by the Courts below is the essential ingredient of the offence of criminal breach of trust, as defined under Section 405, IPC. What would go to constitute criminal breach of trust is not the demand, but the refusal to accede to that demand made and even of one goes by the statement, as made by the complainant, there is not even a remotest indication that when she demanded her ornaments way-back in 1974, they were refused to be returned by either of the respondents. So long as there is no refusal on the part of the accused, there is no question of any breach of trust. Refusal may be even by conduct, but the evidence suggests that a promise, though evasive, was held out to the complainant for return of the ornaments. Disgusted with such promises the ultimately served a notice, which the respondents refused to receive and the refusal was as endorsed on the envelope on 13-11-1985. If this is the date of refusal, as it ought to be treated, the complaint filed on 19-2-1986 is well within time.

8. Courts below have completely ignored the essential ingredients of the offence and have misapplied Section 469, Cr. P.C. by picking up a stray sentence from the evidence of the complainant. Both, on facts as well as law, the Courts below have erred and such an order cannot be allowed to stand. It is liable to be set aside and is accordingly set aside. Complaint henceforth shall proceed in accordance with law. Considering the time that has elapsed, it is to be expected that the trial Court shall expeditiously dispose of the case. Parties shall appear before the trial court on 30-1-1990.