IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS : : SONARI.

PRESENT : Mr. Angaz Baruah, A.J.S.,

Judicial Magistrate First Class,
Sonari.

For the complainant .... Sri M. Goduka, Ld. Advocate

For the accused persons .... Sri N.R. Borah, Ld. Advocate.

Ref. : C.R. Case No. 156/2017.

Smt. Kiran Agarwalla ….. Complainant

-vs-
Sri Roshan Agarwalla
Sri Krishna Agarwalla
Smt. Manju Devi Agarwalla
Miss Lekha Agarwalla …… Accused persons.

Under sections 406 I.P.C.

Charge framed on .... 31.08.2019

Evidence recorded on .... 15.07.2019, 19.08.2019 , 01.10.2019 and
15.10.2019.
Statement of the victim u/s 164 Cr. P.C. recorded on: 15.11.2017
Statement of the accused u/s 313 Cr. P.C. recorded on: 28.11.2019
Arguments heard on .... 17.01.2020
Judgment delivered on .... 10.02.2020.

JUDGMENT AND ORDER

1. The accused persons namely Sri Roshan Agarwalla, Sri Krishna Agarwalla,
Smt. Manju Devi Agarwalla and Miss Lekha Agarwalla has stood trial for offences
punishable under section 406/34 IPC.

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 Allegation:

2. The prosecution in this case was launched by the filing of this complaint by
the victim, Smt. Kiran Agarwalla with the Learned Sub Divisional Judicial
Magistrate, Sonari on 08.11.2017 to the effect that the victim, is the wife of the
accused, Sri Roshan Agarwalla and she married him on 25.07.2015. The other
accused persons namely Sri Krishna Agarwalla, Smt. Manju Agarwalla and Smt.
Lekha Agarwalla are father in law, mother in law and sister in law of the
complainant respectively. It is stated by the complainant that as per the customs
and traditions, certain goods, valuable articles, clothing, ornaments, cash worth ₹
25,00,000/- were entrusted to the accused persons. It is alleged that after three to
four months of their marriage she found that the accused Sri Roshan Agarwalla got
married to her with a plan that she would bring money as and when demanded
according to the wishes of the accused persons. The motive of all the accused
persons was same. The accused persons started torturing the complainant
mentally by saying that no sufficient cash amount was given as dowry by her
parents at the time of marriage. It is also alleged that accused persons demanded
₹ 1,00,000/- from her as dowry. The accused persons also started to torture
physically on demand of dowry amount and slapped on her and uttering filthy
language. The complainant, with the high hope and expectation that everything
will be normalized brought a sum of ₹. 60,000/- in two installments from her father
in the year 2016 and handed over the money to the accused. Even after giving ₹
60,000/- the accused persons greed were not fulfilled. The accused Sri Roshan
Agarwalla also threatened to upload naked photo of the complainant in face-book
account if the complainant refuses to act as per their dictation.
3. The accused persons again demanded ₹ 1,00,000/- as dowry on 15th
August, 2017 and asked the complainant to bring the amount from her father.
Thereafter in the night of 18.08.2017 the accused Sri Roshan Agarwalla asked the
complainant about her intention to bring Rs. 1,00,000/- and when she finally told
that she could not ask her parents for the amount, she was subjected to physical
torture for which she could not sleep on that night. On the very next morning i.e.,
on 19/08/2017 at about 7.30 a.m. before breakfast the accused persons directed
the complainant to go to her parental home on that day to bring Rs. 1,00,000/-
and on refusal by the complainant she was assaulted and asked to “get-out”

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immediately. The accused persons also snatched away her mobile phone two days
ago of this incident. So finding no any other option, the complainant rushed to her
bedroom and tried to pick up the mobile phone of her husband to inform her
parents. The accused persons ran behind her and the accused persons namely Sri
Krishna Agarwalla and Smt Manju Devi Agarwalla held her tightly upon the bed
and accused Sri Roshan Agarwalla forcefully poured poison (liquid jalim lotion) into
her mouth.
4. That the complainant was immediately taken to a doctor’s chamber at Teok
and then admitted at Sanjivani hospital, Jorhat and on 20.08.2017 she was
admitted at Apollo Hospital at Guwahati where she was shifted in I.C.U. the
complainat was discharged from hospital on 24.08.2017 and came to her parent’s
home at Sonari along with her elder brother and other family members. Later on
27.08.2017 the complainant lodged an F.I.R. at Teok P.S.
5. That all the articles of “Stridhan” are now in the custody of the accused
persons and there is every possibility the gold ornaments and other articles by
selling those articles.
3. The accused persons entered their appearance and were enlarged on bail.
After hearing both sides and on perusal of the materials on record, formal charge
was framed under sections 406 IPC against the accused person by my Learned
Predecessor. The particulars of which were read over and explained to the accused
persons to which they pleaded not guilty and claimed to be tried. Hence the trial.

4. The point which arises for determination in this case is:-

a. Whether the accused persons, entrusted with Stridhan articles and

converted the same to their own use and thereby committed an offence
punishable under section 406 of the Indian Penal Code?

DISCUSSION, DECISION AND REASONS THEREOF :

5. PW-1, Smti Kiran Agarwalla stated that she married accused person Sri
Roshan Agarwalla on 25th July 2015. She stated that at the time of her marriage,
she entrusted the accused Sri Roshan Agarwalla with her belongings in the form of
dowry. She stated that she entrusted belongings worth Rs. 25 Lakhs such as
golden necklace, golden bangles, golden earrings, four rings, one pendant and one
nose ring. She further stated that she entrusted with the accused Sri Roshan

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Agarwalla her PAN Card, Voter ID, IDBI Bank Passbook, SBI ATM, HS admit card,
Mark Sheet, Certificate and Registration Card of Dibrugarh University. She again
stated that she gave one wooden furniture, steel almirah, bed, dressing table, and
mattress along with the case memo and warranty card in the form of dowry. She
further stated that after her marriage with the accused Sri Roshan Agarwalla, she
resided at the accused house and after three to four months of residing with the
accused person, accused person started demanding dowry from her and physically
and mentally tortured her. PW1 further stated that when it was unbearable for her
to stay at accused place because of the tortures meted upon by accused, she left
accused place and left her belongings at accused place.

6. PW-2 Sri Suraj Chamaria stated that on 25/07/2015 accused Sri Roshan
Agarwalla married PW1 and that time of marriage certain articles like gold, silver,
electronic goods, household goods were being entrusted to accused as stridhan
articles. PW2 also stated that wooden furniture and cash amount of Rs. 60,000/-
were being entrusted to accused person when PW1 resided with the accused. PW2
stated that when PW1 left accused place, she kept her articles at accused place
and when she went to bring her articles accused threatened her by telling her that
accused would sell of her articles. Accused also did not return her educational
documents.

7. PW3, Smt. Monisha Agarwalla stated that on 25.07.2015 accused married

PW1 and that time of marriage certain articles like gold, silver, electronic goods,
household goods were being entrusted to accused person as stridhan articles. PW3
also stated that wooden furniture and cash amount of Rs. 60,000/- were being
entrusted to accused persons when PW1 resided with the accused. PW3 stated
that when PW1 left accused place she kept her articles at accused place and when
she went to bring her articles accused threatened her by telling her that accused
would sell of her articles. Accused also did not return her educational documents.

Judicial Determination

9. Before entering in to a discussion on the evidences adduced by the

prosecution side, first I would like to focus on the provisions enshrined U/S 405 of
I.P.C. Section 405 of I.P.C. which defines criminal breach of trust reads as
under: “405. Criminal breach of trust – Whoever, being in any manner
entrusted with property, or any dominion over the property, dishonestly

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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 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”.

10. The fundamental core of the offence of criminal breach of trust is that a
property must be entrusted and the dominion of the property should be given to
the trustee. The Hon’ble Supreme Court of India in the case of Chelloor
Manaklal Narayan Ittiravi Nambudiri v. State of Travancore reported in
AIR 1953 SC 478, observed as follows “to constitute an offence of criminal
breach of trust it is essential that the prosecution must prove first of all that the
accused was entrusted with some property or with any dominion or power over it -
It follows almost axiomatically from this definition that 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 .”

11. Plain reading of the provision of section 405 of I.P.C. prima facie shows
that to attract the offence criminal breach of trust U/S 406 of I.P.C. the following
essential elements are needed to be satisfied:

(i) Entrusting any person with property or with any dominion over
property.

(ii) The person entrusted dishonestly misappropriates or converts to his

own use that property.

12. The Hon’ble Supreme Court observed in the case of Pratibha Rani v
Suraj Kumar & Anr reported in AIR 1985 SC 628, as follows: “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 whenever she likes without any hitch or
hindrance.”

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12. As to the criminal breach of trust of stridhan articles, it may however be
apposite that mere general allegations concerning entrustment of articles and
refusal to return the articles of dowry at a later stage would not per se be
sufficient. There is no dispute as to their status as stridhan articles given by the
family of the complainant to her at the time of her marriage. However, it is also
pertinent to mention here that the entire evidence of the complainant side is silent
as to whether any misappropriation as regard to those stridhan articles had
occurred or that the accused persons converted them to their own use.

13. In the absence of any evidence to the effect that the accused person had
misappropriated the recovered stridhan articles or converted them to their own
use, the ingredients of criminal breach of trust in relation to those articles are not
made out against the accused persons.

Decision

14. Thus, on the meticulous analysis of the evidence on record and after
hearing both sides, it appears that the prosecution has been unable to prove that
the accused persons, Sri Roshan Agarwalla Sri Krishna Agarwalla, Smt. Manju
Agarwalla and Smt. Lekha Agarwalla being entrusted with the stridhan property of
the complainant, Smt. Kiron Agarwalla, converted the same to their own use and
thereby committed an offence punishable under section 406 of the Indian Penal
Code.

ORDER

In the light of the above discussions, the accused persons Sri Roshan
Agarwalla Sri Krishna Agarwalla, Smt. Manju Agarwalla and Smt. Lekha Agarwalla
are acquitted of offences under sections 406 of IPC and set at liberty forthwith, as
prosecution failed to prove the guilt of the accused beyond reasonable doubt.
Bail bond of accused shall remain in force for six months from today, in the
light of section 437(A) of Cr. P.C.
Given under my hand and seal of this Court on this 10th day of February,
2020.

(Mr. Angaz Baruah)

Judicial Magistrate First
Class, Sonari.

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 APPENDIX.

WITNESSES FOR THE PROSECUTION :

P.W. 1 : Smt. Kiran Agarwalla

P.W. 2 : Sri Suraj Chamaria
P.W. 3 : Smt. Monisha Agarwalla

WITNESSES FOR THE DEFENCE :

NIL.

DOCUMENTS EXHIBITTED BY PROSECUTION SIDE:

Ext. 1 : Discharged certificate.
Ext. 1 (i): Signature of witness Sri Suraj Chamaria
Ext. 2 : Final Bill
Ext. 3 : Receipt of payment.
Ext. 4 : Certified copy of F.I.R.
Ext. 5 : Certified copy of Charge-sheet

Mr. Angaz Baruah

Judicial Magistrate First Class, Sonari.

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