Dismissed

Vivek Mathura v. State of U.P. and Another

Allahabad HC13 Apr 2022A482/29682/2017

Case brief

AI extract

What is this about?

Applications under Section 482 Cr.P.C. seeking quashing of complaint proceedings and summoning order under Section 406 I.P.C. concerning entrustment and non-return of stridhan. The court held that the offence arises from the date the stridhan was not returned despite notices in 2015-16, so the 2017 complaint was within limitation, and entrustment was specifically alleged. Applications dismissed.

What the court decided

AI extract

Vivek Mathura Vs State of U.P. and Another — Dowry and Cruelty | Allahabad HC (2022)

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A.F.R.

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Reserved on: 15.03.2022 Delivered on: 13.04.2022

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Court No. - 88

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Case :- APPLICATION U/S 482 No. - 29682 of 2017

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Applicant :- Vivek Mathura Opposite Party :- State of U.P. and Another Counsel for Applicant :- Piyush Dubey, Counsel for Opposite Party :- G.A.,Pooja Saxena (In person) and

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Case :- APPLICATION U/S 482 No. - 36696 of 2017

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Applicant :- U.C. Mathur And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Piyush Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Mohd. Aslam,J.

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Since both the applications arise out of the same proceedings, they are being decided by this common order.

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Heard Sri Piyush Dubey, learned counsel for the applicants, Smt. Pooja Saxena, opposite party no.2 appearing in person as well as Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record.

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The present applications under Section 482 Cr.P.C. have been moved seeking quashing of the proceeding of Complaint Case No. 203 of 2017 (Smt. Pooja Saxena vs Vivek Mathur and others), under Section 406 I.P.C., Police Station- Hari Parwat, District- Agra, pending in the court of Additional Chief Judicial Magistrate, Court No.5 as well as summoning order dated 03.07.2017 whereby applicants have been summoned to face trial under Section 406 I.P.C.

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In brief, prosecution case is that opposite party no.2/complainant lodged a criminal complaint in the court of Additional Chief Judicial Magistrate, Court No.4, Agra alleging therein that presently she along with her minor son is residing with her mother who is an old lady and suffering from brain cancer at House No. 307, Siddharth Apartment near Civil Court Compound, Police Station Hari Parwat, District Agra. The

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marriage of opposite party no.2 was solemnized with applicant Vivek Mathur on 22.01.2003 who is resident of B-8, Parivahan Marg, Chomu House, Jaipur, Rajasthan. In marriage, family members of opposite party no.2 had spent about a sum of Rs. 15 lakhs. The family members of her in-laws were not pleased with dowry given in her marriage. At the time of marriage jewellery of gold and silver, cash and other articles were given as gift. The applicants and Smt. Shalini Handoo, sister-in-law of opposite party no.2, had kept her stridhan jointly. After marriage, opposite party no.2 was harassed and maltreated by her husband and his family members due to demand of additional dowry. In the year 2004, the applicant Vivek Mathur got job and opposite party no.2 moved to Bangalore along with her husband where also she was physically and mentally harassed by her husband. In December, 2008 opposite party no.2 gave birth to a son, thereafter, behavior of her in-laws become more cruel towards her. While opposite party no.2 was residing with her husband at Bangalore, her husband filed a divorce petition with mala fide intention in the Family Court, Jaipur. On 15.02.2015 opposite party no.2 had gone to Jaipur from Bangalore to attend the case. Due to threat extended by the applicants and her financial crisis, opposite party no.2 along with her minor son came Agra on 16.02.2015 and started living with her mother. The applicants were using and damaging her Stridhan and they had denied its access to opposite party no.2. Thereafter, on 17.10.2015, opposite party no.2 sent legal notice to the applicants and her sister-in-law for returning her Stridhan. The notice was received by the applicants but the notice sent to Smt. Shalini Handoo was got returned with the connivance of the postman with endorsement that she was not found on repeated visit. On 27.08.2016, opposite party no.2 again sent notice to the applicants for returning her Stridhan which was refused by them. In spite of repeated notice, applicants were not returning her Stridhan and were misusing it. Thereafter, the instant complaint was filed on 19.01.2017 in the court of Additional Chief Judicial Magistrate, Court No. 4, Agra and later on it was transferred to the court of Additional Chief Judicial Magistrate, Court No. 5, Agra.

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It is alleged that opposite party no.2, wife of applicant Vivek Mathur, has filed a complaint case against the applicants on 19.01.2017 in which statements of the complainant and witnesses Madhubala, mother of the complainant, and Sunil Kumar Jain were recorded under Section 200 & 202 Cr.P.C. and the applicants were summoned to face trial for offence punishable under Section 406 I.P.C. vide order dated 03.07.2017 passed by learned Additional Chief Judicial Magistrate, Court No.5, Agra. The opposite party no.2 herself does not want to live with her husband and left her matrimonial house on her own sweet will. The opposite party no.2 with malafide intention and to harass the applicants has launched series of litigation against the applicants. A list of the cases lodged by opposite party no.2 has been annexed as Annexure No.4 to the affidavit. The applicants have not committed any offence. The complaint has been filed in gross abuse of process of law. Therefore, the summoning order as well as the proceeding of the aforesaid complaint case is liable to be quashed.

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Opposite party no.2 appearing in person have opposed the application and submitted counter affidavit that the instant application has been filed with intention to delay the proceedings of the lower court and to harass opposite party no.2 and her minor son. It is further submitted that vide order dated 08.09.2017 this Court had referred the matter to mediation centre on the request of learned counsel for the applicants but the mediatioin has failed. It is stated that it is wrong to say that opposite party no.2 herself does not want to live with her husband and left her matrimonial house out of her own sweet will. This allegation has been made with malafide intention of portraying opposite party no.2 in the negative light and hiding the truth and facts. In fact, after filing of divorce petition on 26.03.2014 the applicant Vivek Mathur transferred the matrimonial house bearing address D-1102, Ajmera Green Acres, Kalenaagrajra, Bannerghata Road, Bangalore to his sister Mrs. Shalini Handoo wife of Mr. Ashish Handoo by gift deed executed on 21.05.2014 with malafide intention to avoid any liability that may be fasten upon him in divorce proceedings. The copy of gift deed has been annexed as Annexure no. CA-1 to the counter affidavit. Thereafter, Mrs. Shalini

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Handoo gave vacation notice dated 20.10.2014 to opposite party no.2 through her counsel asking her to vacate the matrimonial home, copy of which has been annexed as Annexure No. CA-2 to the counter affidavit. On 09.12.2014 applicant Vivek Mathur vacated the matrimonial home and took all the house hold things in his possession. Thereafter, opposite party no.2 has filed an Original Suit No. 822 of 2014 in the court of 1^st Additional Civil Judge, Bangalore in which she was granted temporary intention vide orders dated 03.06.2017 and 11.12.2017 despite that her entry was denied in the matrimonial home, copy of the order has been annexed as Annexure No.CA-3 to the counter affidavit. Thereafter, she went to reside in her matrimonial home along with two lady constables of police station Hulimavu, Bengaluru but she was denied access of the house, copy of endorsement letter dated 08.02.2018 issued to opposite party No. 2 by the competent police authority of Hulimavu has been annexed as Annexure No.CA-4 to the counter affidavit. After decree of Restitution for Conjugal Right dated 08.08.2017 passed by Principal Judge Family Court, Agra in favour of opposite party no.2 she went to the permanent residence of applicant bearing address B-8, Parivahan Marg Home House, Jaipur, Rajasthan accompanied by two lady constables but she was denied the access of house by her mother-in-law. The copy of report dated 18.08.2017 issued by SHO, Vidhyak Puri Police Station has been annexed as Annexure No.CA-5 to the counter affidavit, thus the averments made in Para 6 of the affidavit filed in support of present application are false and applicants have not approached this Court with clean hand. It is further submitted that the averments made in Para 8 of the affidavit that opposite party no.2 has launched series of litigation against the applicant are denied as baseless because seeking recourse to law by the victim cannot be termed as harassment of perpetrators. It is the applicant who has launched litigation in this Court against the order granting relief to opposite party no.2 and her minor son. In fact, the Case No. 1102 of 2016 under DV Act has been filed by applicant but it has been shown to be filed by opposite party no.2. It is further submitted that applicant has no respect to the

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order of court and he is habitual of taking the law for granted as would be clear by the statements being made follows that:-

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(a) despite order dated 17.07.2018 passed by Additional Chief Judicial Magistrate-XII, Agra to pay interim maintenance of Rs. 25,000 per month under Section 23 of Prevention of Woman From Domestic Violence Act to oppoiste party no.2 but applicant has not paid a single penny till date and arrear of 40 months amounting to Rs.10,00,000/- are pending upon the applicant.

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(b) despite order dated 16.05.2016 passed by ADJ/F.T.C.-I, District and Sessions Judge, Agra to pay maintenance under Section 125 Cr.P.C. of Rs. 35,000/- per month to the opposite party no.2, applicant is not paying maintenance regularly and arreares of Rs.4,58,600/- are pending upon him.

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(c) despite order dated 08.08.2017 by which decree for restitution of conjugal right was passed in favour of opposite party no.2, the applicant has not complied it. When the opposite party no.2 went to stay with the applicant in his house situated in Jaipur she was denied entry in the house by her mother-in-law Mrs. Abha Mathur (applicant).

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(d) despite orders dated 03.06.2017 and 11.12.2017 passed by 1^st Additional Civil Judge, Bangalore, Karnataka in O.S. No. 822 of 2014, applicant is not letting opposite party no.2 reside in the matrimonial home.

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(e) despite interim order dated 29.01.2018 passed by ACJM-XII, Agra District and Sessions Court, Agra, under Section 23 P.W.A.D.V. Act, applicant is not letting opposite party no.2 reside in the matrimonial home.

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(f) despite final order dated 18.11.2020 passed by A.D.J., 20, District and Sessions Court, Agra, under Section 23 P.W.A.D.V. Act to let opposite party no.2 reside in the matrimonial home or arrange alternative accommodation to opposite party no.2, applicant has not complied with it.

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Thus, applicant cannot be called law abiding citizen of India as being claimed by him In the Para 12 of affidavit.

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Rejoinder affidavit has been filed on behalf of the applicants wherein they have denied the averments made in the counter affidavit and have reiterated the same averments made in the affidavit filed in support of the present applications. It has been submitted that the proceedings are nothing but an abuse of process of law by the opposite party no.2. The contents of Para 8 of counter affidavit are denied by the applicants and it has been reiterated that opposite party no.2 left her matrimonial house out of her own sweet will. The contents of Para 12 of counter affidavit are denied and it is stated that till date applicant has paid Rs. 25,25000/- to opposite party no.2 but she is in habit of litigation and at least for 11 times date was fixed in mediation at Allahabad as well as at Rajasthan but opposite party no.2 appeared only once which shows

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that she is interested in litigation and not in settlement. The details of payment made to opposite party no.2 have been annexed as Annexure No.RA-1 to the rejoinder affidavit. It has been further stated that all the ornaments were taken by opposite party no.2 just after one week of the marriage on the pretext to show them to her relatives and thereafter the same were not returned to her husband or other family members. It is further stated that there is no specific allegation as to whom entrustment was made and if no specific averment is made regarding entrustment, no offence under Section 406 I.P.C. is made out. Therefore, the impugned proceedings of the present case are liable to be quashed.

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In rebuttal of the rejoinder affidavit, supplementary affidavit has been filed by opposite party no.2 stating therein that the averments made in Para 11 of rejoinder affidavit that opposite party no.2 is in habit of litigation and at least for 11 times date was fixed in mediation at Allahabad as well as at Rajasthan but she appeared only once are a blatant lie which show the extent to which applicants are ready to make false statement on oath to portray opposite party no.2 in negative light. In fact the matter has been referred to mediation for three times as follows:-

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a. Firstly, the matter was referred to mediation centre by this Court in the year 2016 in Application U/S 482 No. 5226 of 2016 (Vivek Mathur vs. State of U.P. and another) in which four dates were fixed by the mediation Centre. The opposite party no.2 remained present on all dates along with her minor son but applicants had turned up on two dates only and mediation failed.

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b. Secondly, the matter was referred to mediation centre by this Court in the year 2017 in Application U/S 482 No. 29682 of 2017 (Vivek Mathur vs. State of U.P. and another) in which opposite party no.2 did not attend mediation centre because by that time it had become clear that the sole purpose of getting case referred to mediation centre was to delay the proceedings of the lower court by misusing interim protection.

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c. Thirdly, in C.M.A. 368 of 2018 (Vivek Mathur vs. State of U.P. and Pooja Saxena) by Hon'ble Rajasthan High Court Jaipur Bench in which two dates were fixed for mediation but it failed as applicant did not turn up.

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It is further stated that applicant Vivek Mathur has filed about 19 cases against the opposite party no.2. A list of cases filed by the applicant Vivek Mathur against the opposite party no.2 has been annexed as Annexure No.SA-1 to the supplementary affidavit. It is further stated

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that opposite party no.2 is appearing in person in most of those cases as she is unable to bear the legal fees of the advocate whereas applicant has engaged team of most expensive lawyers in Agra, Jaipur, Delhi and Allahabad. It is the opposite party no.2 who is being harassed and not applicant as is being claimed by him to obtain desired favourable order. The averments made in Para 12 of rejoinder affidavit that “there are no specific allegations as to whom entrustment was made” has been denied and it is stated that specific allegations regarding entrustment have been made in the statements under Section 200 & 202 Cr.P.C. by opposite party no.2, her mother Madhubala Saxena and her family friend Mr. Sushil Kumar as follows:-

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a. Opposite party no.2 has stated in her statement under Section 200 Cr.P.C. that “ मेरी मां ने मेरी शादी में इन्हें मां ने मेरी शादी में इन्हें नेमेरी मां ने मेरी शादी में इन्हें शादी मां ने मेरी शादी में इन्हें में इन्हें इन्हें इन्हें 8 लाख रुपये व लगभग लगभग 500 ग्रामसोनेकाजेव लगभग रव लगभग अन्यसामानश्री मां ने मेरी शादी में इन्हें यू 0 सी मां ने मेरी शादी में इन्हें 0 माथुरव लगभग श्री म ां ने मेरी शादी में इन्हें ती मां ने मेरी शादी में इन्हें आभामाथुरकोदिदए जो इनके कब्जे मेंजोइनकेकब्जेमें इन्हें है। ” Certified copy of statement of opposite party no.2 recorded under Section 200 Cr.P.C. has been annexed as Annexure No.SA-2 to the supplementary affidavit.

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b. Smt. Madhubala Saxena, mother of opposite party no.2, has stated in her statement under Section 202 Cr.P.C. that “ जनव लगभग री मां ने मेरी शादी में इन्हें सन 2003 केप्रथमसप्ताहमें इन्हें श्री मां ने मेरी शादी में इन्हें यू 0 सी मां ने मेरी शादी में इन्हें 0 माथुरतथाउनकी मां ने मेरी शादी में इन्हें पत्नी मां ने मेरी शादी में इन्हें आभामाथुरमेरेघरआगराआए जो इनके कब्जे में।मैंनेतयकी मां ने मेरी शादी में इन्हें हुई नकदी नकदी मां ने मेरी शादी में इन्हें 8 लाख रुपये तथालगभग 500 ग्रामसोनेकेजेव लगभग रव लगभग अन्यसामान श्री मां ने मेरी शादी में इन्हें यू 0 सी मां ने मेरी शादी में इन्हें 0 माथुरतथाउनकी मां ने मेरी शादी में इन्हें पत्नी मां ने मेरी शादी में इन्हें कोदेदिदए जो इनके कब्जे मेंदिजससेव लगभग ेसुरदि,त जयपुरपहुं ने मेरी शादी में इन्हें च जाए क्योंकि शादी जयपुर में होनी थी।जाए जो इनके कब्जे मेंक्योंदिकशादी मां ने मेरी शादी में इन्हें जयपुरमें इन्हें होनी मां ने मेरी शादी में इन्हें थी मां ने मेरी शादी में इन्हें । " The certified copy of the statement has been annexed as Annexure No.SA-4 to the supplementary affidavit.

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c. Mr. Sushil Kumar, family friend of opposite party no.2, has stated in his statement under Section 202 Cr.P.C. that " जनव लगभग री मां ने मेरी शादी में इन्हें सन 2003 केप्रथमसप्ताहमें इन्हें श्री मां ने मेरी शादी में इन्हें यू 0 सी मां ने मेरी शादी में इन्हें 0 माथुरव लगभग उनकी मां ने मेरी शादी में इन्हें पत्नी मां ने मेरी शादी में इन्हें श्री म ां ने मेरी शादी में इन्हें ती मां ने मेरी शादी में इन्हें आभामाथुरजयपुरसेआगराआए जो इनके कब्जे में।पूजासक्सेनाकी मां ने मेरी शादी में इन्हें माताश्री म ां ने मेरी शादी में इन्हें ती मां ने मेरी शादी में इन्हें मधुबालासक्सेनानेमेरेसामने 8 लाख रुपयेव लगभग लगभग 500 ग्रामसोनेकेजेव लगभग रव लगभग अन्यसामानश्री मां ने मेरी शादी में इन्हें यू 0 सी मां ने मेरी शादी में इन्हें 0 माथुरतथाउनकी मां ने मेरी शादी में इन्हें पत्नी मां ने मेरी शादी में इन्हें श्री म ां ने मेरी शादी में इन्हें ती मां ने मेरी शादी में इन्हें आभामाथुरकोदेदिदए जो इनके कब्जे मेंथे। " The certified copy of the statement has been annexed as Annexure No.SA-6 to the supplementary affidavit.

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From the above statement, it is crystal clear that there are specific allegations to whom entrustment was made. It is further stated that summoning order dated 03.07.2017 passed by Additional Chief Judicial Magistrate, Court No.5, Agra is just and proper and there is no illegality.

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The initial limb of the arguments advanced in this case is that according to the case of the complainant herself, her matter is hopelessely time barred but learned lower court did not look into this

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aspect of the matter. Perusal of the complaint shows that the ‘Stridhan’ of the complainant was given to the applicants some time in January, 2003, although the specific date has not been mentioned. The learned Magistrate failed to take into consideration the provisions of Section 468 of Cr.P.C. The ingredients of Section 406 I.P.C. have not been set forth as specific date of entrustment and the specific date of demand have also not been mentioned, hence, the order is bad in the eye of law. Counsel for the applicants has placed reliance upon Taule Ram and others vs. State of U.P. and another [ reported in 2014 0 Supreme(All) 1194] , wherein it has been held that the complaint shows that ‘Stridhan’ was given to the applicants some times in March, 2008, although the specific date has not been mentioned. The learned Magistrate has failed to take into consideration the provisions of Section 468 Cr.P.C. He has also placed reliance upon Nagendra Kumar and others vs. State of U.P. and another, 2008 Cr LJ 2321 , in which it has been held that there should be specific allegations but vague allegations should not be given weightage too. Reliance has also been placed upon Ashok Kumar Buxi and another vs. State of U.P. and another [ reported in 2006 0 Supreme(All) 2999: 2006 (10) ADJ 498] wherein this Court has held that "the other aspect is that the complaint seems to be barred, prima facie, by Limitation. Marriage of the complainant-opposite party took place at Udaipur. She alleges that she was turned out of the house by accused on 13.04.1996. 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." It is submitted that from the complaint it is not clear to whom the entrustment of ‘Stridhan’ was made. The marriage took place in January, 2003. No clear date of entrustment was alleged in the complaint and the complaint is filed in the year 2017, therefore, the complaint is barred by Section 468 (2) (c) of Cr.P.C. It is further submitted that in the rejoinder affidavit it has been specifically narrated that all the ornaments were taken by opposite party no.2 just after one week of marriage on the pretext to show them to her relatives, and thereafter, the same were not

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returned to the applicants. In above circumstances, opposite party no.2 has filed the complaint in abuse of process of law to harrass the applicants who are husband, father-in-law and mother-in-law. It is also submitted that opposite party no.2 does not want to live with the applicants and left the matrimonial house out of her own sweet will. The proceedings as well as summoning order of the aforesaid complaint case which is filed with malafide intention on the basis of bogus allegations are liable to be quashed and he has relied on the law laid down by Hon'ble Apex Court in State of Haryana and others vs. Ch. Bhajan Lal and others, 1992 AIR 604, 1990 SCR Supl. (3) 259 .

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Learned A.G.A. and opposite party no.2 appearing in person have supported the order of summoning of the accused-applicants passed by learned Additional Chief Judicial Magistrate, Court No. 5, Agra and have submitted that the summoning order was passed after perusal of the complaint and statements complainant as well as witnesses wherein it finds mention as to when the ornaments and other articles were handed over to the father and mother of applicant Vivek Mathur, husband of opposite party no.2. It is further submitted how and when the ornaments and other articles were entrusted to the applicants has been stated by the witnesses in their statements under Section 200 and 202 Cr.P.C. It is further submitted that it is normally seen that the ‘Stridhan’ of a married women remains in the entrustment of the husband or family members and on demand of ‘Stridhan’ by the women if the same is not returned it amounts the offence under 406 I.P.C. from the date of non-compliance of her demand from her husband and family members of in-laws house. The entrustment of ‘Stridhan’ to the members of in-laws family does not amount any offence and it become offence on the date when the same was not returned to the women on her demand. Therefore, the submission of the counsel of applicants that the limitation of the offence starts from the date of entrustment is misconceived. It is further submitted that the case was cited by learned counsel for the applicants in Taule Ram and others (supra) and Ashok Kumar Buxi and another (supra) is not applicable in this case because the facts of those cases are different from the facts of present case as no more specific date for

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entrustment and date of demand for return have been mentioned in those cases. It is further submitted that so far as the submission of learned counsel for the applicants that ornaments were taken by opposite party no.2 just after one week of the marriage on the pretext to show them to her relatives, and thereafter, the same were not returned to the applicants, is concerned requires an appreciation of evidence which cannot be done at the stage under the proceedings under Section 482 Cr.P.C. It is further submitted that on perusal of allegations made in the complaint as well as in the statements under Section 200 & 202 Cr.P.C., prima facie , commission of offence under Section 406 I.P.C. is disclosed against the applicants that cannot be quashed in proceeding under Section 482 Cr.P.C. in view of the law laid down by Hon'ble Apex Court in State of Haryana vs. Ch. Bhajan Lal (supra) . It is further submitted that in view of the law laid down by Hon'ble Apex Court in R.P. Kapur vs. State of Punjab, A.I.R. 1960 S.C. 866 , the appreciation of evidence cannot be done at this stage under the proceeding of Section 482 Cr.P.C. Hon'ble Supreme Court has summarized some categories of cases where the inherent jurisdiction can and should be exercised to quash proceedings:-

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“(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

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(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

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(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.”

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Hon’ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors, 2020 SCC Online SC 850 has held that while examining an F.I.R./complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R./complaint. Therefore, the application is liable to be dismissed.

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I have given thoughtful consideration to the contentions raised by learned counsel for the parties and have gone through the record. It is the admitted case of parties that marriage of opposite party no.2 Pooja Saxena was solemnized with applicant Vivek Mathur on 22.01.2003. It is

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also admitted that husband of opposite party no.2 shifted to Bangalore where he got employment. One son was born out of their wedlock. It is also admitted that opposite party no.2 along with her minor son is residing at Agra with her mother. Now the argument placed before the Court by learned counsel for the applicants that all the ornaments were taken by opposite party no.2 just after one week of marriage on the pretext to show them to her relatives, and thereafter, the same were not returned to applicants. In Para 8 of the counter affidavit opposite party no.2 has stated that it is wrong to say that opposite party no.2 does not want to live with applicants and left her matrimonial house out of her own sweet will and these allegations were made with malafide intention to portray her in negative light and to hide the truth. In reality after filing of divorce of marriage on 26.03.2014 the applicant Vivek Mathur transferred the matrimonial house bearing address D-1102, Ajmera Green Acres, Kalenaagrajra, Bannerghata Road, Bangalore to his sister Mrs. Shalini Handoo wife of Mr. Ashish Handoo by gift deed executed on 21.05.2014 with malafide intention to avoid any liability that may be fasten upon him in divorce proceedings. No clarification has been given by learned counsel for the applicants regarding gift deed executed by applicant Vivek Mathur in favour of his sister on 21.05.2014. In reply to the contents of Para 12 of the counter affidavit, applicants have stated in rejoinder affidavit that till date deponent has paid Rs. 25,25,000/- to opposite party no.2 but she is in habit of litigation and at least for 11 times dates were fixed for mediation at Allahabad as well as at Rajasthan but she appeared only once. She is interested in litigation and not in settlement regarding which opposite party no.2 has filed supplementary affidavit wherein it is stated that the allegations of Para 12 of the rejoinder affidavit is blatant lie. The fact and truth is that matter has been referred to mediation centre for three times as follows:-

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a. Firstly, the matter was referred to mediation centre by this Court in the year 2016 in Application U/S 482 No. 5226 of 2016 (Vivek Mathur vs. State of U.P. and another) in which four dates were fixed by the mediation Centre. The opposite party no.2 remained present on all dates along with her minor son but applicants had turned up on two dates only and mediation failed.

So far as the submission of learned counsel for the applicants that complaint is barred by Limitation as entrustment of articles as ‘Stridhan’ of opposite party no.2 was given in the year 2003, whereas, the complaint was filed in the year 2017 and the Limitation for filing complaint is three years is concerned, it is pertinent to mention that Entrustment is an essential ingredient of the offence and a person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.

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It is well settled law that articles given at the time of marriage by the parents, friends and husband are ‘Stridhan’. Entrustment of ‘Stridhan’ to the members of in-laws family does not amount any offence unless and until it is misappropriated or not returned and on the date when the property is not returned to the women who entrusted the property to accused in spite of asking them to return the same becomes an offence punishable under Section 406 I.P.C. Hon’ble Delhi High Court in Surinder Kumar Yadav and Ors. vs. State, 84 (2000) DLT 289 has observed in para 4 of the judgment as follows:-

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“4. It is common knowledge that when a bride leaves her parental home for matrimonial home stridhan presented to her by the parents and others for all practical purposes is placed under the charge and dominion of her husband and/or his family members. Normally at that stage she being a new bride placed in an unfamiliar environment and bound by the traditional moorings of the society, cannot take care of her stridhan especially when she is required to be shy and bashful and to keep her head covered and more often than not, to conceal her face by covering the same. In such a situation how can she look after her stridhan or even enquire about it. It is actually her in-laws who exercise control and dominion over the same during the transit and at the matrimonial home till the same, if at all, is made over to her.”

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17. Hon’ble Supreme Court in Pratibha Rani vs. Suraj Kumar & Ors., 1985 AIR 628 held as under:-

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1.1 The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The entrustment to the husband of the stridhan property is just like something which the wife keeps in a bank and can withdraw any amount when ever she likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine,illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.”

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In above case law, Hon’ble Apex Court has laid down that if the husband does not return the property to the wife, it becomes an offence under Section 496 I.P.C. on the date when her Stridhan was not restored even after asking to return the ‘Stridhan’.

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In the present case Smt. Madhubala, mother of opposite party no.2, in her statement under Section 202 Cr.P.C. stated that at the time of marriage her daughter Pooja Saxena was doing MD in Allahabad Medical College. She further stated that keeping in view the security and safety of Stridhan, that is, Rs.19 lakh cash, ornaments and other articles were given to applicant UC Mathur, father-in-law of opposite party no.2. From this statement under Section 202 Cr.P.C. it is, prima facie , proved that articles of ‘Stridhan’ were given to the father-in-law of opposite party no.2 in the first week of January, 2003 at Agra at her residence for the purpose of security and safety of ‘Stridhan’ to be taken to Jaipur by applicants UC Mathur and Smt. Abha Mathur. It is also stated that her daughter had asked her husband, father-in-law, mother-in-law to return the ‘Stridhan’ but the same was not returned, therefore, she has filed complaint. In Para 3 of the complaint it finds mention that notice regarding return of ‘Stridhan’ was sent to applicants Vivek Mathur, UC Mathur, Smt. Abha Mathur and Smt. Shalini Mathur on 17.10.2015

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which was received by the present applicants but Smt. Shalini Mathur in connivance of postman got the notice returned with endorsement that addressee could not meet on several visit, thereafter, she again sent another notice the applicants for returning the ‘Stridhan’ which was refused by them. From the perusal of statement, it is very much clear that entrustment of ‘Stridhan’ was made in the first week of January, 2003 and notice regarding return of ‘Stridhan’ was sent to applicants on 17.10.2015 and 27.08.2016 but the same was not returned. Therefore, in view of the law laid down by Hon’ble Supreme Court in Pratibha Rani (supra) it will amount the offence of Section 406 I.P.C. from the date on which the article was not returned after giving notice. The notice was given in the year 2015-16 to the husband, father-in-law, mother-in-law and they had not returned the articles, therefore, it will become offence of breach of trust from year 2015 and the complaint was filed in the year 2017 and summoning order was passed on 03.07.2017. The allegations of the complaint find support from the statements of opposite party no.2 Pooja Saxena, her mother Madhubala Saxena and witness Sushil Saxena recorded under Section 200 & 202 Cr.P.C., respectively. So, in above circumstances, it cannot be said that this complaint is filed in abuse of process of law.

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So far as the contention raised by learned counsel for the applicants that this complaint is barred by Limitation and it ought to be filed within three years of entrustment placing reliance on the law laid down in Taule Ram and others (supra) is concerned, in the said ruling no specific date was mentioned as to when the entrustment was made and the complainant has asked to return the ‘Stridhan’. So far as the reliance placed by learned counsel for the applicants on the law laid down in Neelu Chopra & Another vs. Bharti, 2009 (4) JCC 3021 is concerned, in that case the complaint was sadly vague which does not show as to which accused has committed what offence and what is the exact role played by the appellants in the commission of offence, therefore, that ruling is not applicable in the case in hand. The date of entrustment is clearly established by PW2 Smt. Madhubala, other of opposite party no.2, in her statement under Section 202 Cr.P.C. and

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notice regarding return of ‘Stridhan’ was given by the complainant in the year 2015-16. Thus, in the present case both the date of entrustment and the date of return of ‘Stridhan’, that is, breach of trust is clearly mentioned, therefore, the ruling cited by learned counsel for the applicants is not applicable in this case.

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So far as the reliance placed by learned counsel for the applicants on the law laid down in Ashok Kumar Buxi & Another (supra) is concerned, in that case also there was no clear date and time of entrustment and only general allegations were made and in that case this Court has held that the complaint amounts to abuse of process of law but in the present case entrustment was made in the month of January, 2003 and the notice regarding return of ‘Stridhan’ was given in the year 201516 which has been clearly mentioned in Para 3 of the complaint. Therefore, the law cited by learned counsel for the applicants does not apply to this case.

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Now the question arises that what will be the consequences where opposite party no.2 alleges that ‘Stridhan’ is lying with the applicants and applicants have stated in the rejoinder affidavit that ornaments were taken away by opposite party no.2 just after one week of marriage to show her relatives, on this point it requires appreciation of evidence which cannot be done in the proceedings under Section 482 Cr.P.C. in view of the law laid down by Hon’ble Apex Court in R.P. Kapur vs. State of Punjab, A.L.R. 1960 S.C. 866 , State of Haryana vs. Bhajan Lal, 1992 SCC (Cr.) 426 , State of Bihar vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 .

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Having heard learned counsel for the parties, considering the overall facts and circumstances of the case as well as keeping in view the law laid down by Hon’ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. (supra) , I do not find any substance in the present application which may warrant any interference by this Court in exercise of its jurisdiction under Section 482 Cr.P.C.

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