1 / 18 2025:CGHC:19787 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 911 of 2024 Judgment reserved on : 25.02.2025 Judgment delivered on : 01.05.2025 Smt. P. Kavita Murti (Now Smt. Kavita Sandhu) W/o Shri P. Venkatraman Murti (Now Divorced) Aged About 53 Years R/o Shivsadan, Pension Bada, Police Station Mahila Thana (City Kotwali), Tahsil And District Raipur Chhattisgarh Mo. No. 9827144117 (In Impugened Judgment Power Off Attorney Names Mentioned, But The Instant Petition Filed By Petitioner Herself) ... Appellant versus P. Venkatraman Murti S/o P. Rajarao Aged About 56 Years R/o Phase 6, Plot No. 12, Maitri Nagar, Near Krishna Talkies, Bhilai, Risali, Durg, Tahsil And District Durg Chhattisgarh ... Respondent(s) -------------------------------------------------------------------------------------------- For the Appellant : Mr. Ratnesh Kumar Agrawal with Ms. Prabha Sharma, Advocates For the Respondent : Mr. Vikash A. Shrivastava, with Mr. Arjun Yadav, Advocates -------------------------------------------------------------------------------------------- Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.05.03 12:10:41 +0530 2 / 18 1. This acquittal appeal has been filed under Section 378 (4) of the Code of Criminal Procedure, 1973 against the judgment dated 10.05.2023 passed by Chief Judicial Magistrate, Raipur District Raipur (CG) by which the respondent has been acquitted of the charge under Sections 406, 34 of the IPC. 2. Facts of the case, in brief, are that, the marriage of the appellant and the respondent was solemnized on 03.11.1995 at Kundan Palace Raipur, thereafter she joined her matrimonial house where she remained for few days. Subsequently, behavior of the respondent was changed against her and the respondent and his family members started harassing, torturing her, as such the appellant has no other option except to leave her matrimonial house at mid night on 19.03.1996 leaving the stridhan i.e. jeweleries, gold, silver and other articles under the stage of mental agony suffered by her. Thereafter, the victim came to Raipur and filed a complaint against the respondent for commission of offence under Section 498-A IPC and Sections 3 & 4 of the Dowry Prohibition Act before Police Station Mahila Thana Raipur against the respondent and his relatives which was registered as Crime No. 47 of 1997. The prosecution started investigation in the meanwhile, the respondent sent a legal notice to the appellant for judicial suppression from Secunderabad (the then AP) on 07.12.1997. During pendency of this appeal, the accused has been acquitted of the charges leveled under Section 498-A IPC and Sections 3 & 4 of the Dowry Prohibition Act by the concerned trial Court. 3. The appellant sent notice to the respondent on 30.05.1998 demanding return of Stridhan wherein it has been mentioned that list of Stridhan has 3 / 18 been submitted before Mahila Police Station Raipur by the father of the appellant on 06.01.1998 which has been kept as seizure memo and the material which has been seized was handed over to the appellant but remaining materials were kept by the respondent. Despite notice, no Stridhan was returned back to the appellant and it has been denied that the said Stridhan was kept by the respondent and has stated that demanded articles were taken away by the appellant which has necessitated the appellant to file a complaint under Sections 200 CrPC for commission of offence under Sections 405 and 406 of the IPC against the respondent before Judicial Magistrate First Class, Raipur which was registered as complaint case No. 14510 of 2002. 4. 4. The appellant to prove the case has examined witnesses complainant (PW- 1), Basant Kumar Naidu (PW-2), Mahendra Kumar (PW-3), Yashwant Kumar Naidu (PW-4), Ajay Martin (PW-5) and has exhibited documents power of attorney (Ex.P-1), Receipt (Ex.P-2 & 3), Notice (Ex.P-4), Postal receipts (Ex.P-5 to 7), decree (Ex.P-8), Receipt (Ex.P-9 to Ex.P-20), Tickets (Ex.P-21 to Ex.P-23), receipt (Ex.P-24), Letter (Ex.P-25), list of articles (Ex.P-26), details of list (Ex.P-27), Notice (Ex.P-28 and 29), photographs (Ex.P30 to Ex.P-36). The accused has not examined any witness but he has been examined under Section 313 CrPC wherein he has taken plea of false implication. 5. The learned trial Court after appreciating the material on record has acquitted the accused and recorded its finding that the appellant failed to establish that the respondent has committed criminal entrustment of the article by misappropriation of the articles and utilizing the same for their 4 / 18 own purposes. Being aggrieved with the order of the acquittal, the acquittal appeal has been preferred by the complainant. 6. Learned counsel for the appellant would submit that the order passed by the trial Court is bad in law, perverse, illegal and liable to be set aside. He would further submit that the trial court has failed to establish that she has kept the articles in the home of the respondent after her marriage. He would further submit that the trial Court has failed to appreciate the principle laid down by the High Court of Gauhati in the case of Vijay Kumar Jalan vs. State of Aasam and others reported in 2018(1) GLR 352 wherein it was held that Stridhan property remains in the hands of accused person offence of criminal breach of trust is continue offence until the same is returned back. He would further submit that the trial court has overlooked the judgment passed by the Family Court Secunderabad on 19.05.2003 wherein the appellant has proved that she entrusted the questioned articles to the respondent. He would further submit that learned trial Court has committed gross error by not appreciating the material evidence on record and has also not appreciated the seizure made by Police and the appellant has taken the questioned jewellery also. He would further submit that the trial Court failed to appreciate the ingredients of Section 405 of the IPC. He would further submit that there is no proper appraisal of the material on record and would pray for allowing the acquittal appeal. To substantiate his submission, he would refer to the judgments of Hon’ble the Supreme Court in the cases of Pratibha Rani vs. Suraj Kumar and Others reported 1985(2)SCC 370, Chief of Army Staff and others vs. Major Dharma Pal Kukrety 1985(2) SCC 412,State of H.P. vs. Karanvir, reported (2006) 5 5 / 18 SCC 381, Bhaskar Lal Sharma & Others vs. Monika reported 2009 (10) SCC 604. 7. On the other hand, learned counsel for the respondent would submit that there is no transaction regarding dowry between the family of respondent and the appellant as such the respondent has been discharged from the commission of offence under Section 498-A read with Sections 3 and 4 of the Dowry Prohibition Act which also establishes the false implication of the respondent in the alleged offence under Section 405 and 406 IPC. He would further submit that the appellant has not submitted list of articles regarding Stridhan and has stated that the list was misplaced which was containing the details of ornaments of gold and silver. He would further submit that the appellant has stated that 28 tolas gold she received in marriage and gifts also. Neither any receipt reading gold nor list of belongings was submitted by the appellant before the police. There are contradictions and omission in the statement of appellant and their witnesses namely Yashwant Naidu, Basant Naidu, Ajay Martin and Mahesh Jewellers and on the basis of statement, trial court has acquitted the respondent from the charges. He would further submit that the documents were submitted by the appellant before the Court in her support, those are plain papers and submitted without signature and date, as such they are not exhibited documents and the same cannot be taken on record. He would further submit that in response to the notice, witness No. 1 accepted in cross-examination, that belongings of accused mother were taken away by the appellant with her. The appellant in paragraph-9 has stated that all the items except jewellary which has been recovered from the respondent, 6 / 18 are related to offence under Section 498-A IPC which she has received by submitting supurdanama of Rs. 2,00,000/-. He would further submit that the case of the appellant is of civil nature and she with malafide intention to drag the respondent in criminal proceedings to take vengeance has filed the complaint under Sections 405 and 406 IPC against him and would pray for dismissal of the appeal. To substantiate his submission, he would refer to the judgments of Hon’ble Supreme Court in the cases of Pratibha Rani vs. Suraj Kumar and another reported 1985(2) SCC 370, Chief of Army Staff and others vs. Major Dharam Pal Kukerty 1985(2) SCC 412, Velji Raghavji Patel vs. Stateof Maharashtra decided 11th December, 1964, Deepak Gaba and others vs. State of Uttar Pradesh and another 2023(3) SCC 423, Smt. Priyanka vs. Prince in FA No. FA(Mis) No. 53 of 2015 decided on 14.05.2018, State of Haryana and Others vs. Ch. Bhajan Lal and others (1990) Supp. 3 SCR, M/s. Pepsi Foods Ltd. And anr. vs. Special Judicial Magistrate & Ors decided on 04.11.1997, Hira Lal Chaudhar and ors. vs. State 1956 CRILJ 1165, Prof R.K. Vijayasarathy and anr. vs. Sudha Seetharam and Anr. In SLP (Crl.) 1434 of 2018 decided on 15th February, 2019, Babulal Yadav vs. Sonu Yadav in FA(MAT) No. 40 of 2022 decided on 04.07.2023, Kavita Singh vs. State of UP and another Laws(all) 2016, 3318, Smt. Babita @ Gyatri vs. Modprasad @ Pintu in FAM No. 148 of 2016 decided on 12.09.2017 and Sunil Kumari and others vs. State of Haryana and another in CRM- M No. 45835 of 2022 decided on 6th May, 2024. He would further submit that even otherwise, it is well settled legal position of law that if one view which is favourable to the accused then that finding should not be normally disturbed unless so perverse which conscious the mind of the Court. In the 7 / 18 present case, no such situation is available on record, thus he would pray for dismissal of the acquittal appeal. 8. I have heard learned counsel for the parties and perused the records. 9. Considering the submissions made by the learned counsel for the parties point emerged for determination by this Court is whether the finding of acquittal recorded under section 405 and 406 IPC by the trial Court in favour of the respondent is legal, justified or not. 10. To appreciate this submission, it is expedient for this Court to attract Sections 405 and 406 of the IPC which read as under:- Section 405 and 406 of the IPC reads as follows: - “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes 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, commits “criminal breach of trust”. [Explanation [1].—A person, being an employer [of an establishment whether exempted under Section 17 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.—A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted 8 / 18 by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] 406. Punishment for criminal breach of trust.—Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 11. From the above definition of Section 405 and 406 IPC the material which are required for proving the commission of offence under Section 405 and 406 IPC are as under and whether these parameters proved by the appellant beyond reasonable doubt or not has to be seen. (I) The beneficial ownership of the property in relation to which the alleged offence was committed must be shown, and it must be shown that the accused held the property on behalf of the other party. (ii) The transferee has custody of the item; the transferor is still the rightful owner. (iii) Unless there are circumstances surrounding it from which one might infer that it was an entrustment and not just a payment, any financial transfer made by one person to another does not constitute an entrustment. (iv) In cases where the married woman’s complaint contained clear, detailed, and unambiguous charges of entrustment and theft of stridhan property, all of the events set out therein constitute an offence under Section 406 of IPC. (v) There must be an intention to commit a criminal breach, and this intent must be established in order to seek punishment under Section 406 of IPC. (vi) Regarding Section 406 IPC, it should be noted that the ingredients of Section 405 IPC must be proven in order to establish the conduct of the offence under Section 406 of IPC. Therefore, the prosecution must show that the accused was granted trust, that he had authority or control over the objects, and that he then misappropriated them. (vii) The person giving over the property must have confidence in the person accepting it to establish a fiduciary relationship between the two parties or to put him in the position of trustee. The intent to misappropriate must be established for a criminal breach of trust to stand. 9 / 18 12. To ascertain these parameters which are required for proving the case it is appropriate for this Court to go briefly with the evidence adduced by the complainant as well as the respondent. 13. Complainant (PW-3) in her statement has stated that at the time of marriage, all her relatives were present including mother, father and maternal grand-father and gold and silver ornaments and sarees were presented in the marriage. She has also stated that though the sarees have been returned by the accused but the gold and silver ornaments were not returned. She stated that after the marriage, the accused persons were ill- treating her and she was being tortured mentally and physically. She further stated that the accused persons called her father and sent her to Raipur with him saying that her husband has to appear in the examination at Nagpur on 3-12-1995. She also stated that she has lodged an FIR on 16- 12-1997 in the Mahila Police Thana Raipur for an offence punishable under Section 498-A IPC. She has also stated that her father has given 10 tola gold and 8 tola gold has been given by her grand mother and other relative has given 10 tola gold thus total 28 tola gold has been given in the marriage. Apart from gold, silver ornaments and utensils have also been given. She has stated that she worn some ornaments in the marriage and remaining ornaments were given to her in-laws. She has admitted in the cross-examination that no documentation work was done regarding dowry and also admitted that she has annexed receipt of gold items which she received from goldsmith. She has admitted that her parents have not obtained any receipt from the respondent regarding goods/articles given at the time of marriage. The complainant has also exhibited certified copy of 10 / 18 order passed by Family Court, Secundrabad (AP) as Ex.P-8 and bills purchase of anklet and waist belt Ex.P-9 to Ex.P-15, purchase bill of Anurag Jewellers dated 27.08.1991 Ex.P-16, 17 and Ex.P-18. Purchase bills Ex.P-19 dated 16.12.1993, documents prepared in the hand writing of appellant’s father dated 18.03.1995 regarding ornament under Ex.P-20. She has also exhibited photographs as Ex.P-30 to Ex.P-36, to establish that the ornaments she worn at the time of marriage. The witness was cross-examined by the respondent wherein she has admitted that in the Ex.P-17 there was signature of Manehdra Shah which is known to her. She has also admitted that in Ex.P-20 after finalization of marriage a list was prepared regarding ornaments dated 18.03.1995 in which signature of her father was there and she identified the signature of her father. 14. Yashwant Rao (PW-4) uncle of appellant has stated that 28 tola gold ornaments were given to the appellant in her marriage. The witness in the cross-examination has stated that his brother told him that Police have seized some material and empty box of ornaments from the respondent. He has also stated that he was not aware whether appellant has taken the ornaments or not. 15. Ajay Martin (PW-5) has stated that at the time of seizure memo there was no material and empty boxes were found from the respondent. The witness was cross-examined wherein he has admitted that respondent Venkatraman has stated that the property belonged to the respondent accordingly he has signed the seizure memo. 16. Father of the complainant (PW-2) in his statement has stated that at the time of marriage gold and silver ornaments about Rs. 1,50,000/- which 11 / 18 were purchased from the shop of Mahendra Kumar Shah, were also given. He stated that an FIR was also lodged by his daughter against the accused persons for an offence punishable under Section 498A IPC. 17. Mahendra Kumar (PW-3) in his statement has stated that he is a businessman of gold and silver, having his shop in Sadar Bazar, Raipur in the name of Shailesh Kumar and Brothers. He is also having a firm in the name of Anuradha Jewellers. He further stated that he knows the complainant Kavita and her father Shri Vasant Kumar Naidu from the year 1980-81. He also stated that for the marriage of Kavita, the ornaments of ten tulas gold and 3-4 kilogram silver were made by him as well as few ornaments and utensils were got polished. He stated that in the marriage, the ornaments were worn by Kavita. The utensils were kept in front of the Mandap. 18. The respondent has not examined any witness in his support but while examining under Section 313 CrPC in question No. 19, he has stated that the appellant has taken away 20 tola gold and mangalsutra of his mother with her. No further evidence has been led by him. 19. Learned counsel for the respondent has vehemently argued that the appellant has civil remedy of obtaining alleged Stridhan by filing application under Section 27 of the Hindu Marriage Act and to substantial his submission, he has referred to full Bench judgment of this Court in FA(MAT) No. 40 of 2022 decided on 04.07.2023. The Hon’ble Full Bench has nowhere prohibited filing of Criminal complaint under Section 405 of the IPC. On the contrary it has held that independent application under Section 151 of CPC for returning of Stridham would be maintainable before the 12 / 18 Family Court. Similarly both the parties have relied upon the judgment of Hon’ble Supreme Court in the case of Pratibha Rani (supra), this judgment stipulated that despite remedy of section 27 of Hindu Marriage Act and section 14 of the Hindu Succession Act entrustment of Stridhan property to husband and misappropriation by the husband would be liable for criminal prosecution and existence of alternate civil remedy would not bar criminal jurisprudence. Hon’ble the Supreme Court in paragraphs 28, 29, 31, 41 and 54 has held as under:- 28. To sum up the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with loss-, of business by using the said property which was never intended by her while entrusting possession of stridhan.) On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on b-half of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under s.406 of the IPC. On a parity of reasoning, it is mainfest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property. 29. For these reasons, the custody or entrustment of stridhan with the husband does not amount to a partnership in any sense of the term and therefore, we are unable to agree with view taken in Vinod Kumar's case as also with the opinion expressed by our Brother on the points arising in the case. 31.We are clearly of the opinion that the concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which has been administered since more than a century by High Courts, Privy- Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar's case seem to have rewritten the law of criminal breach of trust contained in ss. 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code.A more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of s. 406 13 / 18 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands- her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but-what the High Court has said before regarding the applicability of s.27 of the Hindu Marriage Act and the nature of stridhan as referred to above-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by a spirit of male chauvininism so as to exclude the husband from criminal lability merely because his wife has refused to live in her matrimonial home. We are indeed surprised how could the High Court, functioning in a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law. 41. The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust. is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the Court though not its conclusion, are clearly established. That the view of the High Court is absolutely wrong would be clear from a number of authorities, some of which we would like to discuss here. 54. There is an earlier decision of the Punjab & Haryana High Court which clearly holds that where there is a clear allegation of entrustment by the wife against the husband, he could be prosecuted by a criminal court on a complaint filed by the wife. In this connection, the Court in Avtar Singh & Anr. v. Kirpal Kaur Criminal Misc. No.2144- M of 1979 and Criminal Misc.No.2145 of 1979, decided on 16 8.79) made the following observations: "In my opinion, where certain thing is lying in trust with a person, offence of dishonest misappropriation would be committed on a date the demand for return of the entrusted articles is made and the same is declined...According to the complaint, the first demand for the return of the articles was made on January 27, 1976 and it was that date when the demand was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January 27, 1976." 20. Again the Hon’ble Supreme Court in the case of Krishna Bhattacharjee vs. Sarathi Chowdhury reported in 2016(2) SCC 705 has considered the concept of continuing offence and taking recourse of criminal law in motion for return of Stridhan has held in paragraph-32 as under:- 14 / 18 31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Section 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. 21. Similarly, judgment of Hon’ble Supreme Court in the case of Professor R.K. Vijay Shastri and others vs. Sudha Seetharam and Anr. In CRA No. 238 of 2019 decided on 15.02.2019 is not applicable to the present facts and circumstances of the case, as the husband is custodian of the Stridhan property entrusted to him and the Hindu married woman is the absolute owner of her Stridhan property and can deal with it in any manner she likes. 22. The Hon’ble Supreme Court in the case of Pradeep Kumar vs. State of Chhattisgarh reported in 2023(5) SCC 350 has considered the power of Appellate Court to interfere in the concurrent finding of fact and has held as under:- 15 / 18 30. Normally, we do not interfere with the concurrent findings of fact of the Courts below. We step in only in exceptional cases or where gross errors are committed, overlooking crying circumstances and well established principles of criminal jurisprudence leading to miscarriage of justice. Hence it becomes our bounden duty to correct such findings in view of the principles enunciated in Ramaphupala Reddy vs. State of Andhra Pradesh, (1970) 3 SCC 474, Balak Ram v. State of U.P., (1975) 3 SCC 219 and Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217. 23. From the evidence and law on the subject it is quite vivid that Stridhan is the property of married woman and she can use it according to her convenience and the husband and in-laws are only entrusted with the Stridhan and if demand for return is made but not return then offence under Section 405 of the IPC is attracted. 24. Now this court is to examine whether the stridhan which are gold ornaments has been misappropriate by the respondent or not. From the evidence adduced by the appellant, it is quite vivid, that the gold ornaments were worn by the appellant at the time of marriage and receipts were also produced before the trial Court. The appellant in the evidence has categorically stated that at the time of marriage, some ornaments were given to her in-laws and no evidence was led by the respondent to rebut the such statement. The respondent in his statement recorded under Section 313 CrPC has only stated that the appellant has taken away the ornaments but no such other material was placed on record. On the contrary, learned Family Court Secundrabad in its order (Ex.P-8) has categorically recorded its finding that the appellant is subjected to harassment and torture by the respondent and his family member. Even the appellant in her evidence has narrated the event under which condition she was asked to leave her matrimonial house at mind night on 19.03.1996, therefore, it is not possible 16 / 18 for her to carry out gold and silver ornament in such terrified situation. These are the circumstances which proved that gold was with the respondent supported by seizure memo wherein only three empty ornaments box were seized by the police from the possession of the respondent and in this regard no explanation was given by the respondent. It is pertinent to mention here that the statement of respondent recorded under Section 313 CrPC wherein he has stated that the appellant has taken 20 tola gold and mangalsutra of her mother in-law with her but no further steps have been taken by him for lodging FIR for committing theft of mangalsutra of mother-in-law which creates doubt over the version of respondent and even no material to establish that mother of respondent owned the theft mangalsutra. 25. Learned trial Court in its judgment in paragraph 7 and 8 has taken into consideration the fact that in the bill Ex.P-9 to Ex.P-18 relating to ornaments does not bear any signature but ignored the evidence led by Mahendra Kumar who has categorically stated in his evidence that for the marriage of appellant, the ornaments of ten tola gold and 3-4 kilogram silver were made by him as well as few ornaments and utensils were got polished by him. He stated that in the marriage, the ornaments were worn by Kavita. The utensils were kept in front of the Mandap and no cross-examination to rebut this evidence was done by the respondent, thus the impugned order is based on perverse finding. 26. The trial Court has not given any finding whether the respondent has committed misappropriation of Stridhan or not which is required to be adjudicated and decided by the trial Court. Learned trial Court has taken 17 / 18 pain to decide the issue which was not germane with the controversy involved in the case as it has decided issue whether the ornaments were purchased or produced at the time of marriage by the appellant or not without any defence led by the respondent that no such gold or ornament were given in the marriage, as the respondent in his statement recorded under Section 313 CrPC has not denied that the gold ornaments were not given in the marriage but simply he said he did not know and no further explanation was offered by him. The respondent in his statement recorded under Section 313 CrPC was asked that complainant witness Mahendra Kumar has stated that Ex.P-9 to Ex.P-19 are documents relating to gold ornament purchased by the appellant’s father from his shop which was simply denied by respondent and in the entire statement he has not explained gold ornaments were not given at the time of marriage. Thus, the appellant through her evidence has clearly proved that gold ornaments were purchased and were tendered at the time of marriage and the same have been misappropriated by the respondent, as such there is sufficient material for the trial Court for recording of guilt against the respondent for commission of offence under Section 405 IPC which has been so casually ignored by the learned Judicial Magistrate without any deliberation or discussion, as such perverse finding was recorded by the trial Court by ignoring the vital evidence and has acquitted the respondent from the charges. The evidence and material adduced by the appellant are sufficient to prove the ingredients of Section 405 of the IPC against the respondent beyond reasonable doubt and the same has been ignored by the trial Court thus, there is sufficient material to interfere in the impugned order. As such, despite clinching evidence on record, the learned trial Court has taken a 18 / 18 view ignoring the vital evidence, material on record which requires interference by this Court as there is sufficient material against the respondent. Even otherwise, after re-appreciation of evidence only possible conclusion could be drawn against the accused that he has committed the offence which has been proved beyond reasonable doubt by the appellant and the judgment of acquittal is on perverse finding and accordingly the order of acquittal deserves to be set aside and it is set aside and it is held that the respondent is liable to be convicted under Section 405 of the IPC. 27. Now on the question of sentence, since the complaint was filed on 01.08.1998, more than 26 years has been lapsed, the appellant has already re-married and the respondent must have re-married and they must have settled in their life, no fruitful purpose will be served if the respondent is ordered for jail sentence. Section 406 IPC does not provide any minimum sentence and it provides maximum sentence of three years or fine or with both. Considering these aspects of the matter, it is directed that the respondent shall return the Stridhan i.e. 28 tola gold to the appellant and will also deposit fine amount of Rs. 10,000/- before the concerned trial Court with two months from the date of receipt of the copy of the order, failing which he will undergo three months simple imprisonment. 28. Accordingly, the acquittal appeal is allowed. Sd/- (Narendra Kumar Vyas) Judge Santosh