IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14840 of 2008 AINUL HAQUE @ AINUL HAQUE QURAISHI & ORS Versus THE STATE OF BIHAR & ANR ----------- 2 7.7.2009 Petitioners have challenged the order dated 3.11.2006 by which the Sub-divisional Judicial Magistrate, Aurangabad has taken cognizance under Section 406/120B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act against the petitioners. The prosecution case made out in the complaint petition is that there was a talk of marriage between the daughter of the complainant and the son of the petitioner no. 1. It appears from the complaint petition that both the parties had settled the marriage and also performed a function in which the complainant states that he gave a gold ring, gold chain, a Titan wrist watch and Rs. 20,000/- to the prospective groom i.e. petitioner no. 2 and also states that he spent about Rs. 60,000/- over and above, the items gifted to him. The allegation is that after the engagement took place, the petitioners demanded a Maruti Car and on refusal of the demand, 2 negotiations failed and the marriage did not take place. The admitted position is that the daughter of the informant and the petitioner no. 2 have got married. Learned counsel appearing on behalf of the petitioners submits that no offence is made out under Section 405 of the Indian Penal Code. To constitute an offence under Section 405 (a) the accused concerned must be entrusted with property (b) dishonestly misappropriates that property or disposes of that property. This act must be done in violation of any direction of law prescribing the mode in which the trust will be discharged in any legal contract express or implied which he has made to discharge of such trust willfully commits criminal breach of trust. In the case in hand, the petitioner was not entrusted with any property in fact the alleged gold ring, gold chain or the cash was given voluntarily as a gift on the occasion of the engagement of the parties although the counsel for the petitioner denies that such gifts were made. Therefore, there is no question that he held these 3 properties as part of entrustment. It is further submitted that if the informant had spent Rs. 60,000/- for the engagement of his daughter it cannot be said that the petitioner had committed any breach of trust and the cognizance under Section 406 is therefore, misplaced. As far as the offences under Section 4 of the Dowry Prohibition Act is concerned, learned counsel for the petitioners submits that on the oral statement that there was a demand of dowry and that too in the facts of the case that it is said that the petitioner no. 2 was working in the TOYOTA company and he therefore, wanted a Maruti Car does not appear to be believable as there should be some connection between the demand and the status of a particular person. It is pointed out that if the complainant could have spent a lacs of rupees on the said engagement it cannot be believed that he broken up negotiations for sum of rupees 2 lacs or so. In fact it is submitted that the case has been lodged because the negotiations broke up which deeply hurt the informant and he has filed the present 4 case. Considering the fact that no offence under Section 406/120B of the Penal Code is made out, it is very difficult for this Court to hold that Section 4 of the Dowry Prohibition act will be applicable in the facts of the present case. Considering the submissions and the allegations in the First Information Report, I quash the order dated 3.11.2006 taking cognizance of the offence. This application is thus allowed. Sanjay (Sheema Ali Khan, J.)