SAWINDERO Vs. BANSO

JUDGEMENT

(1.) This will dispose of Criminal Misc. Petitions Nos. 9338-Mand 10875-M of 1993.

(2.) These petitions under Section 482 Cr. P.C. have been filed for quashing of complaint under Section 406/420 IPC and the order summoning the accused passed by Judicial Magistrate 1st Class, Faridkot. Smt. Banso alleging herself to be the wife of Sukhchain Singh filed complaint under Section 406/420 IPC and Dowry Prohibition Act, alleging therein that accused Nos. 1 to 8 as mentioned in the complaint were the members of the marriage party After Anand Karaj ceremony, articles as mentioned in complaint were handed over in the form of Istridhan, but the accused were not satisfied with the dowry, as a result of which the complainant (respondent herein) was turned out of the house and the dowry articles were not returned to her and have been misappropriated by the accused. In support of the facts mentioned in the complaint, the Judicial Magistrate recorded preliminary evidence. Complainant appeared as PW 1 and got examined Gurbax Singh as PW 2, Suba Singh as PW 3, Gurnam Singh as PW 4 and Bassan Singh as PW 5. On the basis of allegations made in the complaint and the preliminary evidence in support thereof, the learned Judicial Magistrate, Faridkot, prima facie found that the accused have committed offence under Section 406/420 I.P.C. and as such, they were summoned to appear in Court. Quashing of the complaint has been sought on the ground that allegations made in the complaint are not truthful and the effort of the Complainant is to drag all the family members in litigation so as to pressurize her husband. Quashing has also been sought on the ground that Sections 406 and 420, I.P.C. are mutually exclusive and the order sun lmoning the petitioners under both of these sections is legally unsustainable.

(3.) Having heard the learned Counsel, I am of the view that there is some merit in the second contention of learned Counsel for the petitioners. As far as the first contention is concerned, the learned Judicial Magistrate after having satisfied himself on the basis of allegations made in the complaint and the preliminary evidence in support thereto, summoned the petitioners. There can be no room for doubt that all the facts stated in the complaint and the preliminary evidence recorded in support thereof, constitute an offence under Section 406 IPC and the respondent cannot be denied the right to prove her case at the trail by pre-empting it at the behest of petitioners at this stage. However the order summoning the petitioners under Section 420 I.P.C. cannot be sustained. In cheating, the dishonest or fraudulent intention must be shown to be present from the very inception of the transaction. In Criminal breach of trust, there may not be criminal intent present at the time of receipt of the money! articles. The word entrustment itself implies the handing over the property by lawful means and phrase any other mannerT means any other legal manner. The word T1entrustment again implies that the person handing over of property has confidence in the person taking the property so as to create a fiduciary relationship between them. That confidence cannot arise where the property is acquired by the offender by a trick or deceit. If the property is obtained by a trick or false representation to the owner thereof, there is an offence under Section 420 IPC. Thus, criminal intention is necessary in cheating at the time of entrustment. In the present case, no such criminal intention at the time of entrustment of dowry/Istridhan has been mentioned in the complaint. Accordingly, order summoning the accused under Section 420 IPC deserves to be quashed.