Case: Bhaskar Lal Sharma &amp; Another Vs. Monica

Respondent Monica married Vikas Sharma (Vikas), son of the appellants herein. Vikas was a divorcee. He obtained the decree of divorce on or about 8th July, 2003 passed by the Civil Court in Lubumbashi, Congo. He had two children born on 23rd April, 1999 and 8th July, 2000 respectively from his first wife.Indisputably, Vikas as also the appellants are engaged in the family business of import and export of about 150 commodities. Vikas was the Managing Director of the family managed Company since 1994 having its operating business places at Delhi, Bangkok, Shanghai, Brussels, Johannesburg, Kinshasa, Lubumbashi, Uganda, etc. Vikas and the appellants ordinarily live in Congo. They have a residential house also at Lajpat Nagar, New Delhi.Negotiation between Vikas and the respondent - Monica took place through an agency known as `Sycorian Matrimonial Services. The marriage took place at Sanatan Dharam Mandir Hall, Delhi on 16.1.2004. It was also registered with the Registrar of Marriages, MB Road Saket, New Delhi on 22.1.2004. Immediately thereafter, i.e., on or about 25.1.2004, the couple left India and stayed in Johannesburg, South Africa for about 10 days. They thereafter left for Lubumbashi, Conga, Africa. They stayed there for 2 months in their matrimonial home. The relationship between the parties was cordial during that period.Monica came back to India on 5.4.2004. She stayed at her matrimonial home at Lajpat Nagar, New Delhi till 10.5.2004 with the appellants. She again left for Lubumbashi, Africa to join her husband. However, the relationship between the parties deteriorated thereafter. They came back to India on 21.5.2004. Monica allegedly took all her belongings from Congo including clothes and the jewelry which she had been carrying.On or about 26.5.2004, Vikas and the respondent visited Dr. Nagpal, a psychiatrist at Vim Hans Hospital for consultation to ascertain the reason for the non-compatibility and discord between them. Dr. Nagpal advised them to make their matrimonial life successful.Vikas left for Congo on 27.5.2004 hoping that Monica would change her mind in regard to the future of their marriage and they should take a decision in regard to her going back thereto later. She, however, for one reason or the other, went to her parents house on 14.6.2004 and took all her belongings including the jewelry articles which she had been carrying.Allegedly, during that period, appellant No.2 humiliated her by various acts to which we would advert to a little later.It is borne out from the records that during this entire period including the period after she left her matrimonial home in June 2004, parties communicated with each other through e-mails.Monica filed a complaint marked as Complaint No. 287/1A under Sections 498A, 406 and 34 of the Indian Penal Code (for short, "IPC") against her husband Vikas and the appellants on 9.9.2004. On the same day, an application for grant of maintenance was also filed in the Court of learned Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi under Section 125 of the Code of Criminal Procedure (for short, "the Code") claiming maintenance of a sum of Rs.2 lakhs per month as also an order of an interim maintenance of Rs.2 lakhs per month till the disposal of the case. She was examined by the learned Metropolitan Magistrate Patiala House, New Delhi on 30.11.2004. Evidences were recorded whereafter summons had been issued on 21.3.2005 by the learned Metropolitan Magistrate. Her application for grant of interim maintenance was also allowed by the learned Metropolitan Magistrate by an order dated 10.5.2005 and granted interim maintenance at the rate of Rs.5,000/- per month.Non bailable warrants of arrest were also issued against the appellants as also Vikas on 29.6.2005.The respondent being not satisfied with the quantum of maintenance as granted by way of an interim arrangement filed a Revision Application before the High Court marked as Criminal Revision No. 452 of 2005 seeking increase in the maintenance granted by the learned Metropolitan Magistrate. The High Court enhanced the amount of compensation of interim maintenance to Rs.50,000/- per month. The amount of maintenance has since been fixed at Rs.50,000/- per month by the said Court.On or about 2.8.2005, appellants as also Vikas filed application marked as Criminal (Misc.) No. 3673-75 of 2005 under Section 482 of the Code before the Delhi High Court for quashing the order directing issuance of non-bailable warrants against them. The High Court by its order dated 8.8.2005 stayed the order issuing non-bailable warrants against the appellants with an undertaking that Vikas and appellants would appear before the learned Magistrate.Appellants along with Vikas also filed an application marked as Criminal (Misc.) Main No. 4742 of 2005 under Section 482 of the Code for quashing of the summoning order dated 21.3.2005 passed by the learned Magistrate in Complaint No.287/1A summoning them for attending the trial court under Sections 498A, 406 and 34 of the IPC.On 3.10.2005, appellants and their son came to India; they appeared before the learned Magistrate; they were admitted to bail. The High Court by its order dated 4.10.2005 passed in Criminal Revision No. 452 of 2005 directed impounding of the passport of Vikas stating that the efforts were being made for reconciliation. Admittedly talks of reconciliation failed. The High Court modified the said finding stating that the marriage seems to have broken down irretrievably and directed return of the passport to him by an order dated 6.10.2005. Pursuant to the liberty granted by the High Court, appellants as also Vikas filed an application on 15.10.2005 for permission to go abroad, which was allowed subject to the condition that additional bank guarantees be furnished of Rs.1 lakh for each of the applicant. Monica challenged the said order before the High Court which was dismissed by an order dated 18.10.2005.On 21.11.2005, Monica filed a Criminal Complaint No.574/1 under Section 420 of the IPC against the appellants and Vikas inter alia alleging all material facts relating to the first marriage and divorce and in particular the fact that the first wife of Vikas in her divorce suit alleged acts of cruelty on the part of her husband had not been disclosed.On 12.12.2005, Monica challenged the order of the Delhi High Court dated 18.10.2005 before this Court by way of Special Leave Petition (Criminal) No. 6015-6016 of 2005, which was dismissed by an order dated 12.12.2005.Despite the same, Monica filed another petition before the High Court under Section 482 of the Code inter alia praying that the learned trial court may be directed not to release the passport of Vikas till the application filed by her under Section 340 of the Code is disposed off.Another petition marked as Criminal Misc. (Main) No. 519 of 2006 was filed by her for a direction upon the learned trial court to dispose of the case filed by her under Sections 498A/406 IPC and 420 IPC within a time frame of about 3 months and the appellants as also Vikas be directed to submit all the papers relating to their properties in India before the learned trial court.The High Court by its order dated 7.2.2006 dismissed the petition filed by the respondent with costs.On 20.3.2006, the learned Metropolitan Magistrate, New Delhi took cognizance of the complaint No. 574/1 under Section 417/415 IPC as the allegations were not made out under Section 420.On 27.3.2006, the order dated 7.2.2006 passed by the High court was challenged by the respondent before this Court by way of Special Leave Petition (Criminal) No.1220 of 2006, which was dismissed with a direction to the trial court to expedite the proceedings.Indisputably for one reason or the other (appellants had given some explanation in this behalf in the Special Leave Petition) appellants having failed to attend the court of the learned Metropolitan Magistrate, Monica filed an application for attachment of the ancestral property of the first appellant. Interpol also was sounded. Orders were passed for attachment of the property in terms of Section 83 of the Code situated both at Delhi as also the ancestral house of the first appellant at Jaipur. Although the order of attachment so far as the Jaipur property is concerned is said to have been passed in terms of Section 83(4)(c) of the Code, Monica allegedly forged the said order to show that the order of attachment has been passed in terms of Section 83(4)(a) thereof.Brother of the first appellant lodged a First Information Report ("FIR") with Moti Dungri Police Station, Jaipur. We are, however, not concerned with the said case at present. Indisputably on 17.11.2007, Monica filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking for restitution of conjugal rights marked as Case No. 683 of 2007, which is pending in the Court of learned Additional District Judge, Tis Hazari, New Delhi.We may place on record that at the instance of Monica several attempts have been made for reconciliation of matrimonial dispute between her and Vikas.We may also place on record that applications dated 9.5.2008 and 31.5.2008 respectively were also filed before this Court by the respondent for mediation Chandan Sharma, another son of the appellants came from Hong Kong to India for that purpose. Monica, however, insisted that appellant No.1 himself should come to India before her husband Vikas comes, which was not acceptable to the appellants as the reconciliation of the disputes was to take place between Monica and her husband Vikas.We may notice that even this Court in the transfer petition filed by Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated 4.2.2008 impleaded Union of India through Ministry of External Affairs as a party and learned Additional Solicitor General appearing for Union of India made a statement before this Court on 11.4.2008 that Emergency Travel Documents would be made available to Vikas and upon his arrival a regular passport would be issued. Interpol/Ministry of External Affairs were directed not to enforce the Red Corner Notice against Vikas Sharma. Pursuant thereto Vikas traveled to India.On 9.5.2008, Vikas appeared before this Court in Transfer Petition (Criminal) No. 258/2007 and this Court by an order dated 9.5.2008 directed the complainant and Vikas to report to the Senior Coordinator of the Mediation Cell at Tis Hazari Courts, Delhi to explore the possibilities of resolving/settlement of their matrimonial discord. Pursuant thereto the parties appeared before the learned Senior Mediator and the mediation processes were resorted to on day to day basis. Indisputably however, the said negotiation failed. The matter was listed before this Court on 11.6.2008. The parties were given an opportunity to reconcile their disputes. However, they could not arrive at any settlement.The High Court by reason of the impugned order dated 21.1.2008 dismissed the application for quashing the summoning order dated 21.3.2005 filed by the appellants herein, opining:"14. In order to attract the offence under Section 498A it would have to be proved that the wife was subjected to cruelty which could include mental cruelty. Whether the conduct was such as to cause grave injury or danger to the mental health of the woman are all matters to be examined only after the detailed evidence is led by the prosecution. At this stage, when a prayer is made for quashing of the criminal proceedings, this Court is not expected to go through the pre-summoning evidence in great detail and determine whether in fact all the ingredients of the offence as set out under Section 498A are actually made out or not.15. Likewise the submission of the petitioners regarding non-entrustment of property to them by the complainant for the purposes of attracting the offence under Sections 403 read with 406 IPC is without merit. It was attempted to be shown by learned counsel for the petitioner that there is no specific averment that property was entrusted by the complainant to either of these petitioners or that they had criminally misappropriated the same. This Court is unable to agree. The averments in paras 16, 24 and 29 of the complaint when read taken collectively do indicate that the property which belonged to the complainant was, according to the complainant, in the possession of the Petitioners and on demand they refused to return such property. At this stage, in order to examine if the complaint makes out a prima facie case, it is not necessary to go into the fine details and determine whether what is stated in the complaint is true or not.16. In this context the observations of the Supreme Court in Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397  would be relevant. In that case while examining Section 406 in some detail, this Court observed as under (SCC p. 407): 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 signifance, 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

Reasoning: We may place on record that at the instance of Monica several attempts have been made for reconciliation of matrimonial dispute between her and Vikas.We may also place on record that applications dated 9.5.2008 and 31.5.2008 respectively were also filed before this Court by the respondent for mediation Chandan Sharma, another son of the appellants came from Hong Kong to India for that purpose. Monica, however, insisted that appellant No.1 himself should come to India before her husband Vikas comes, which was not acceptable to the appellants as the reconciliation of the disputes was to take place between Monica and her husband Vikas.We may notice that even this Court in the transfer petition filed by Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated 4.2.2008 impleaded Union of India through Ministry of External Affairs as a party and learned Additional Solicitor General appearing for Union of India made a statement before this Court on 11.4.2008 that Emergency Travel Documents would be made available to Vikas and upon his arrival a regular passport would be issued. Interpol/Ministry of External Affairs were directed not to enforce the Red Corner Notice against Vikas Sharma. Pursuant thereto Vikas traveled tocomplainant further did not stop there but also filed a complaint petition that she was cheated as Vikas and his parents did not disclose about his marital state of affairs in regard to the first marriage and/or the decree of divorce obtained by him. We do not intend to make any comment with regard to the correctness or otherwise of the statements made therein as the matter is not before us.We have, however, made note of the litigations filed between the parties in great detail. These litigations, if a holistic view is taken, depict a sad state of affairs, namely, that the respondent, on the one hand, intends to take all coercive measures to secure the presence of her husband and the appellants in India in various cases filed by her and, on the other hand, she had repeatedly been making attempts of conciliation. Endeavour/conciliations were made by the Delhi High Court as also this Court at various stages. The High Court, as indicated hereinbefore, in its order dated 6.10.2005 passed in Criminal Revision No. 452 of 2005 categorically held that the marriage has irretrievably broken down. Be that as it may, we are of the opinion that keeping in view the ingredients of the provisions of Sections 498A of the IPC, no case has been made out against the appellantsoffence of criminal breach of trust as defined in Section 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.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;(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully 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.We have noticed hereto before that the correspondences exchanged between the spouses or by and between Vikas and hisdo not disclose any allegation which would amount to criminal misconduct on the part of the appellants.With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.The only allegation which brings the case within the purview of Section 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son.No definite case of entrustment of any property has been made against the appellant No.1. He is only said to have given back to the complainants parent the entire cloth and jewelry. No demand was made by the respondent. Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana and/or amount spent by the complainants father per se does not constitute any offence of Section 406 of the Code. Any gift made to the bridegroom or his parentswhether in accordance with any custom or otherwise also would not constitute any offence under Section 406 of the Code.