Sauda Beevi v. Abdul Basheer and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938** **Crl.Rev.Pet.No. 2798 of 2003 ( ) ---------------------------------** ## **AGAINST THE JUDGMENT IN CC 182/2001 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, THALASSERY DATED 11-07-2003** **REVISION PETITIONER(S)/DEFACTO COMPLAINANT:** **-----------------------------------------** **SAUDA BEEVI, D/O. ABDUL FAREED, KOTTUPATTA HOUSE, PANNIKOTTOOR AMSOM PALANGAD DESOM, VIA. KODUVALLY, KOZHIKODE DISTRICT.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT(S)/ACCUSED, COMPLAINANT & STATE:** **------------------------------------------** **1. ABDUL BASHEER, S/O. ALIKUTTY, KUNIYIL HOUSE, IYYAD AMSOM DESOM, KOZHIKODE DISTRICT.** **2. IMBICHAYISHA, W/O. ALIKUTTY, KUNIYIL HOUSE, IYYAD AMSOM DESOM, KOZHIKODE DISTRICT.** **3. S.I. OF POLICE, KODUVALLY, KOZHIKODE DISTRICT. 4. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R,R1 & R2 BY ADV. SRI.A.ANTONY R,R1 & R2 BY ADV. SMT.LEELAMMA ANTONY** **R3 & R4 BY PUBLIC PROSECUTOR SMT. MADHUBEN M.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No. 2798 of 2003 ---------------------------------------------Dated this the 19[th] day of May, 2016 ## **ORDER** This revision petitioner is preferred by the defacto complainant against the judgment in C.C. No.182/2001 of Judicial First Class Magistrate-I Thamarassery, The case was charge sheeted by the Koduvally Police under Section 406, 498A IPC. The case is that the 1st respondent (accused) married the revision petitioner on 20.9.1992 as per Islamic Customary rites at Palangadu Juma Masjid and thereafter they resided together as husband and wife. At the time of marriage, she was given with 35 sovereigns of gold ornaments and 85,000/- as her share,₹ which was entrusted to the 1st respondent. He misappropriated those ornaments and amount and demanded 30,000/- for the₹ construction of a house. Even after receipt of that amount, Crl.R.P.No.2798/2003 2 respondents 1 and 2 ill-treated her both physically and mentally, thereby committed the offence. Koduvally Police registered a crime and after completing investigation, laid charge in the trial Court. 2. To substantiate the contention, prosecution examined PW1 to PW10 and marked Exts.P1 to P8 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. The accused examined DW1 to DW3 and marked Exts.D1 to D3. The learned Judicial First Class Magistrate, acquitted the accused. Being aggrieved by that, the defacto complainant preferred this revision petition. 3. The learned counsel appearing for the revision petitioner contended that the entrustment of the amount was properly proved in the trial Court, which was not considered by the learned Magistrate. The direct oral testimony of PW1 and PW2 is sufficient to prove the entrustment of money and Crl.R.P.No.2798/2003 3 misappropriation. But, the learned counsel appearing for the respondents strongly resisted the above contention and contended that the fact, when and where the entrustment of amount was made was not properly proved in this case. Hence, no interference is necessary in this revision petition. 4. In order to ascertain the mode of entrustment, I have examined the oral testimony of PW1, who is the defacto complainant in this case. Her evidence shows that the marriage with the 1st respondent was solemnized on 20.9.92 at Palangadu Juma Masjid mosque according to Muslim customary rites. At the time of marriage, 35 sovereigns of gold and ₹ 85,000/- were given to her. She entrusted the amount to the 1st respondent, he appropriated that amount and gold for constructing a house. When he wanted for getting job in the school, he started illtreating her both mentally and physically, demanding more gold ornaments and amount. In that wedlock, two children were born to them. Subsequently she left the Crl.R.P.No.2798/2003 4 matrimonial house and resided with her parents. In the mediation talk, 30,000/- was given to the 1₹ st respondent and he took her to the matrimonial home. Even though she deposed so, nothing has been stated in her evidence about the entrustment. In her oral evidence in the complaint to the Police nothing has been stated as to at which place the enturstment was made. She also stated that she has no direct knowledge with regard to the entrustment of the amount of ₹ 85,000/-. Therefore, the evidence of PW1 is not sufficient to prove the entrustment. 5. PW2 has only hearsay information with regard to the entrustment of money. PW2 stated that the money was entrusted by the defacto complainant to the 1st respondent to pay off the debt incurred for the construction of the house and for getting a job in the school. Analysing the evidence of these two witnesses, the entrustment of the amount and the gold is not proved in this case. When there is no evidence Crl.R.P.No.2798/2003 5 with regard to the manner of entrustment of the property, money and the gold, no offence will attract u/s.406 IPC. PW3 participated in the marriage. Ext.P3 is the original marriage register. PW4 is the President of Mahal Committee and he issued Ext.P4 certificate. PW5 participated in the mediation talk. PW1 is his brother's daughter. PW6 deposed that he heard the quarrel between PW1 and A1. He advised A1 several times. But, he has not deposed that A1 demanded any amount from the defacto complainant and ill-treated or manhandled her demanding more amount and gold. In the absence of any evidence, I am of the view that there is no evidence to attract the offence punishable u/s.498A IPC. 6. Criminal breach of trust means whoever being in any manner entrusted with property or with any dominion 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 of law prescribing the Crl.R.P.No.2798/2003 6 mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffers any other person so to do, commits criminal breach of trust. Therefore, the entrustment of property or dominion over property is essential ingredient to attract an offence of criminal breach of trust. a has or Secondly, person dishonestly misappropriated converted to his own use that property or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. 7. The prosecution has to prove that the accused has dominion over the money and the gold entrusted to him and he dishonestly misappropriated or converted to his own use that property. There is also no evidence with regard to the harassment or about he demand for more dowry and money. Even though other witnesses were examined in the trial Court, analysing the evidence, it is clear that the prosecution utterly Crl.R.P.No.2798/2003 7 failed to prove the case against the accused. The meaning and extent of criminal breach of trust has been explained by the Apex Court in **Jaswantrai Manilal Akhaney** v. **State of Bombay** [AIR 1956 SC 575]. The position of entrustment is also settled by the Apex Court in **Ramaswami Nair** v. **State of Madras** [AIR 1958 SC 56] and held that the word entrusted in the section is very important unless there is entrustment, there can be no offence under the section. 8. Analysing the aforesaid evidence, it is clear that no direct evidence is found in this case to prove the cruelty by the husband or relatives of the husband. Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished u/s.498A IPC. The cruelty means any wilful 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 harassment of the woman where Crl.R.P.No.2798/2003 8 such harassment 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. Such evidence is **Sobha Rani** v. **Madhukar** not found in this case. Apex Court in [AIR 1988 SC 121] settled the position with regard to the demand for dowry and illtreatment and held that the demand for dowry is prohibited under the law. That itself was bad enough. When there is no evidence to prove that the husband and his mother demanded more amount and illtreated or harassed the wife to meet any unlawful demand, no offence is attracted against the 1st respondent. However, analysing the totality of evidence, it is clear that the trial court rightly appreciated the evidence and concluded that no offence u/s.406 & 498A IPC has been committed by the accused and acquitted them. There is no illegality or irregularity in the finding of the Crl.R.P.No.2798/2003 9 trial Court to invoke the revisional jurisdiction. Hence the revision petition is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.R.P.No.2798/2003 10 PW7 received CMP No.4037/2000 from Judicial First Class Magistrate Court, Thamarassery. On the basis of that, he registered a crime. Ext.P5 is the FIR. PW8 deposed that in the mediation, in the presence of the Panchayat President Narikuni Panchayat a sum of 30,000/- had given to A1 for₹ construction of the house. That amount was received by PW8 at the house of one Fareed and the dispute was settled in his presence. PW9 also admitted that while he was the President of Narikuni Panchayat, interfered in the dispute and settled. At the time of settlement, 30,000/- was given to A1. PW10₹ conducted investigation and laid charge before Court. He seized Ext.P6 letter and also prepared Ext.P3 seizure mahazar. He questioned the witness and laid charge before Court. Crl.R.P.No.2798/2003 11