- (1.) PALOK Basa, J. This is a case under Section 482, Cr. P. C, by Anil Kumar for quashing the complaint and further proceedings as against him pending Criminal Case No. 1214/1988 - Smt. Manju Goyal v. Lala Pooran Ckana and others, before the Munsif Magistrate 1st Class Firozabad, district Agra.
(2.) THE complaint allegation in short is that at the time of solemnising of the marriage, some property and valuables were handed over to lala Pooran Chand, Further, allegations in the complaint was that the said property was Carried to Aligarh with the help of applicant Anil Kumar and his brother (non- applicant) Sunil Kumar. This allegation was reiterated in the statement of the complainant Smt. Manju Goel where she has reiterated that all the valuables and property (detailed in paragraph 2 of her statement) were handed over to her father-in-law Lala Pooran Chand. Similar was the statement of the witnesses under Section 202, Cr. P. C On these facts, it has been argued by the learned counsel for the applicant that no offence of misappropriation or embezzlement whatsoever as against the applicant has been made. Hence, summoning order and the proceedings as against the applicant amounts to an abuse of process of the Court should be quashed. Affidavits have been exchanged and Sri N. K. Chaturvedi has been heard at length who appears on behalf of the complainant. The main argument advanced on behalf of the complainant was that there are specific allegations concerning the partition of the property between her late husband Arun Kumar and his other two brothers i. e. Anil Kumar applicant and Sunil Kumar non-applicant. The share of late Arun Kumar which would have devolved upon the complainant has been divided by the other brothers and therefore, rightly a complaint under Section 406, IPC was made. This argument is wholly misconceived. In a case under Section 406, IPC, the prosecution has to prove beyond doubt the fact that actual entrustment of the property in question was made to all the accused who are sough to be proceeded against. Definite allegations to that effect must exist in the com plaint and also in the statement of the complainant and the witnesses so as to entitle the Magistrate's court to summon the accused to face a charge under Section 406, IPC. In the absence of such allegations, it will not be open to the Magistrate to issue process and if the orders so, the said order it liable to be interfered with.
(3.) THE allegations as well as the statement in the instant case point out beyond any amount of doubt that the entrustment was made only to the father-in-law Lala Pooran Chand. Under the circumstances the question whether the other properties have been partitioned or not and whether the share, if any, of late Arun Kumar has not been earmarked for the complaint or not are wholly foreign to this case. If and when so advised, this matter may be appropriately agitated before the competent Court. There is another aspect which requires consideration. Allegations in she instant case as against Sunil Kumar non-applicant are the same which have been levelled against Anil Kumar the applicant. In exercise of the inherent powers vested in this Court it appears only fit and proper that the orders to be passed regarding Anil Kumar applicant should also be made appliable to Sunil Kumar, co-accused, though not an applicant.;