- (1.) Both the aforesaid applications arise out of same Case Crime and are between the same parties hence they are being decided by a common order. By means of the aforesaid application, applicants have prayed for quashing of the entire proceedings of Complaint Case No. 708 of 2009, under Section 406 IPC, read with Section 7 of the Dowry Prohibition Act, pending in the Court of Additional Chief Judicial Magistrate Chandausi, District Moradabad as well as the order dated 20.1.2012 passed by Additional Chief Judicial Magistrate, Chandausi, District Moradabad. The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. Allegations contained in the complaint are that the marriage of opposite party No. 2 was solemnized with applicant No. 1 and in the said marriage father of opposite party No. 2 gave Rs. 3.80 lacs to the accused persons alongwith several ornaments, households items, furniture and cash. After the suit for divorce was decided in favour of the husband, complainant demanded the Stridhan and other articles given at the time of her marriage from the applicants which was refused by them. It is further alleged that the Stridhan of opposite party No. 2 is being used by the accused persons and other relatives of the husband and they are not returning the property to the opposite party No. 2.
(2.) It is contended that no offence of criminal breach of trust punishable under Section 406, IPC is made out and hence the proceedings pending against the applicants and the order issuing non-bailable warrants be quashed being patently illegal and wrong. The offence of criminal breach of trust defined in Section 405 IPC and punishable under Section 406 requires: (1) entrusting any person with property or with any dominion over property, (2) the person entrusted, (a) dishonestly mis-appropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged or (ii) of any legal contact made touching the discharge of such trust.
(3.) From a perusal of the above provision, it may appear that for constituting the offence of criminal breach of trust, the necessary ingredients are that any property should either be entrusted to a person or the person be put in dominion over that property. The person so being entrusted with the property or having the dominion over it, must be shown to have misappropriated it or to have converted that property to his own use or has dishonestly used or disposed 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 willfully suffers any other person so to do.;