IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.850 OF 2002 Between: Dasari Chenniah ..... Petitioner/Appellant AND 1. The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent 2. Bellam Venkaiah ..... Respondents/Complainant The Court made the following: ORDER: The Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 23.07.2001, in Cr.A.No.32 of 1998, on the file of the learned Additional Sessions Judge, Ongole, whereunder and whereby, the conviction and sentence recorded against the accused by the learned Additional Munsif Magistrate, Kandukur, in C.C.No.480 of 1996, dated 15.04.1998 of the offence punishable under Section 406 of the Indian Penal Code, 1860 (for short, “I.P.C.”), are confirmed. 2. For the sake of convenience, the parties are hereinafter referred to as arrayed before the trial Court. 3. Brief facts that are necessary for disposal of the present Criminal Revision Case may be stated as follows: P.W.1-Bellam Venkaiah, who is the complainant, deposited an amount of Rs.25,000/- in Andhra Bank, Singarayakonda, in the name of his daughter, who is the deceased, and her husband who is no other than the accused in “Kalpataruvu” Deposit Scheme on 29.08.1988 for the benefit of the bride and her family as stridhan. Both the accused and his wife lived together happily for about two years. Thereafter, the accused subjected the deceased to cruelty as she did not co-operate with him for withdrawal of the said amount and also the accused ultimately driven her out of the house. The deceased died on 17.06.1992 by committing suicide by hanging to a beam. On the report given by the complainant, the police registered a case in Crime No.15 of 1992 on 18.6.1992 under Sections 498A and 306 I.P.C. P.W.1 got issued a notice to the accused to co-operate with the complainant for withdrawal of the amount, but he did not co-operate. Therefore, the present complaint is filed. 4. When the charge under Section 406 I.P.C. was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge levelled against the accused, the prosecution examined P.Ws.1 to 5 and got marked Exs.P1 to P12. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral evidence was adduced except marking Exs.D1 and D2. 7. The trial Court, after considering the evidence on record, came to the conclusion that the evidence of P.W.4-Branch Manager, Andhra Bank, Singarayakonda, is very clear that P.Ws.1 and 2 deposited an amount of Rs.25,000/- in Andhra Bank, Singarayakonda, in the name of the deceased and the accused in “Kalpataruvu” Deposit Scheme on 29.08.1998 for the benefit of the deceased and her family as Stridhan, but the accused was not co-operating with the complainant for withdrawal of the amount by signing on ExP9-Fixed Deposit Receipt issued by Andhra Bank, Singarayakonda, and accordingly convicted the accused. The said conviction and sentence was confirmed by the Appellate Court. Challenging the same, the present Criminal Revision Case is filed. 8. Learned counsel appearing for the petitioner herein contended that there was no entrustment of the property which is the main ingredient for the offence punishable under Section 406 I.P.C.; that there is no evidence that the accused misappropriated the same; that as the wife of the accused died, the accused will be having a share in the property, and hence, he prays to set aside the impugned judgment. 9. On the other hand, the learned counsel appearing for the second respondent contended that the amount of Rs.25,000/- has been deposited by P.Ws.1 and 2 in Andhra Bank, Singarayakonda, in the name of the deceased and the accused in “Kalpataruvu” Deposit Scheme on 29.08.1998 which is the Stridhan property; that the husband has no right at all; that he is bound to return the property after the death of the deceased, but that was not done; that both the Courts, after elaborate consideration of the evidence on record, rightly found the petitioner guilty and accordingly convicted him, and hence, there are no grounds to interfere with the same. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, or illegal, or improper, normally this Court will not interfere with the concurrent findings. 11. Learned counsel appearing for the petitioner argued that there was no entrustment of the property or valuable security. Learned counsel appearing for the petitioner has not brought to the notice of this Court that any one of the findings of the trial Court or the appellate Court is illegal or incorrect. 12. Section 406 I.P.C. prescribes punishment for criminal breach of trust. Necessary ingredients to constitute the offence of criminal breach of trust are as follows: “(a) A person is, in any manner entrusted with- (i) property, or (ii) dominion over property. (b) He dishonestly- (i) misappropriates or converts to his own use that property, or (ii) 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 any legal contact (express or implied) made by touching discharge of such trust willfully suffers any other person so to do omit.” The expression entrustment need not be a direct entrustment of cash or a valuable security in the name of the accused. It can be by constructive entrustment also so as to attract Section 405 I.P.C. 13. The evidence of P.Ws.1 and 2 would clearly go to show that they have withdrawn certain amount from their accounts respectively and deposited an amount of Rs.25,000/- in Andhra Bank, Singarayakonda, in the name of his daughter, who is the deceased, and her husband who is no other than the accused in “Kalpataruvu” Deposit Scheme on 29.08.1988 and taken Ex.P9-Fixed Deposit Receipt in the name of the accused and his wife. Taking of Ex.P9 in the name of the accused and his wife is within the knowledge of the accused. As a matter of fact when the wife got issued Ex.P2-notice, dated 22.05.1990, the accused gave a reply claiming that he deposited the amount. 14. Learned counsel appearing for the petitioner vehemently contended that as per Ex.P2, the amount has been deposited in Andhra Bank, Singarayakonda Branch, wherein Ex.P9-Fixed Deposit Receipt was issued by the Branch Manager of Andhra Bank, Singarayakonda. The name of the branch as mentioned in Ex.P2 appears to be an inadvertent mistake and the same cannot be taken advantage by the accused in view of the unimpeachable evidence of P.W.4-Branch Manager, Andhra Bank, Singarayakonda, who categorically stated that P.Ws.1 and 2, after withdrawing certain amount from their accounts, deposited Rs.25,000/- in Andhra Bank, Singarayakonda, in the name of the accused and his wife under Ex.P9-Fixed Deposit Receipt. In view of the fact that the accused was having a knowledge, it can safely be said that there is a constructive entrustment of the property though not direct entrustment of the property. 15. Now the question is whether the accused has misappropriated the amount or not? There is no evidence to show that the accused has withdrawn that amount or appropriated the same for his benefit. 16. On this aspect, it is pertinent to refer to a decision reported in Pratibha Rani v. Suraj Kumar[1], wherein it is held thus: “To sum up, the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the same articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under S. 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.” Therefore, the above decision makes it clear that when there is a demand made by the in-laws, the amount has to be returned to P.W.1. Inspite of giving notice, the accused was not co-operating with P.W.1 for withdrawal of the amount covered under Ex.P9. 17. Learned counsel appearing for the petitioner placed reliance on a decision reported in Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada[2], wherein it is held thus: “Thus when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property or willfully suffers any other person to do so, he commits criminal breach of trust. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are: (i) entrusting any person with property or with any dominion over property; the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The expression “entrustment” carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. 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. In Pratibha Rani case the majority has extensively considered the words “entrustment” of and “dominion” over the property. All the case-law in that behalf was exhaustively considered obviating the necessity to tread once over the same. In order to establish entrustment of dominion over the property, both the majority and minority relied on in particular the judgment of this Court in Velji Raghavji Patel v. State of Maharashtra[3] wherein it was held that in order to establish entrustment of dominion over the property to an accused person, mere existence of that person’s dominion over the property is not enough. It must be further shown that his dominion was the result of entrustment. The question therein pertained to the entrustment with the dominion over the partnership property by one partner to the other. It was held that the prosecution must establish that the dominion over the assets or particular assets of the partnership was by a special agreement between the parties. The property of the partnership being a partnership asset, every partner has a right to or a dominion over it. It was held that special agreement was necessary to constitute an offence of criminal breach of trust defined under Section 405 IPC. In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. It is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case, as to how and in what manner the entrustment of the stridhana property or dominion over her stridhana came to be made to the husband or any other member of the family or the accused person, as the case may be. We are in respectful agreement with the majority view in Pratibha Rani case[4] and consequently requires no reconsideration.” Even from the above decision, it is clear that the husband has no right over the stridhan property though the wife died, because the evidence on record would clinchingly establish that the property in question was given by P.W.1 and as a matter of fact, during the life time of the daughter of P.W.1 also, she got issued a legal notice demanding the accused to return the property in view of ill feelings between them. Therefore, the trial Court as well as the Appellate Court rightly held that the complainant proved its case beyond all reasonable doubt for the offence levelled against the accused. 18. It is clear that on proper appreciation of evidence on record, the findings were arrived at. None of the findings is shown to be illegal or contrary to law. There are no grounds to interfere with the impugned judgment. Hence, the Criminal Revision Case is devoid of merit and is liable to be dismissed. 19. The second respondent has filed a Criminal Miscellaneous Petition No.2017 of 2009 under Section 482 Cr.P.C. in this Criminal Revision Case praying to return the documents Exs.P9 to P11, i.e., Fixed Deposit Bond, Cash Transfer Receipt and Credit Voucher, dated 29.08.2008, and also to direct the Branch Manager, Andhra Bank, Singarayakonda, to pay the amount to him lying in deposit. As a separate finding need not be given by this Court in Crl.M.P.No.2017 of 2009, as the Criminal Revision Petition is dismissed. 20. Accordingly, the Criminal Revision Case is dismissed confirming the judgment, dated 23.07.2001, in Cr.A.No.32 of 1998, on the file of the learned Additional Sessions Judge, Ongole. _____________ (K.C.BHANU, J) Date: 3rd November, 2009. KL [1] AIR 1985 Supreme Court 629 [2] (1997) 2 Supreme Court Cases 397 [3] (1965) 2 SCR 429 . AIR 1965 SC 1433 [4] (1996) 8 SCC 164 . 1996 SCC (Cri) 628