# Mohammad Sadik Revisionist v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-28
- **Case number:** Criminal Revision No. 2646 of 2014
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-sadik-revisionist-v-state-of-u-p-ors-48151
- **Pages:** 6

## Headnote

Law-
Code
of
Criminal
Procedure,
1973-
Section
397/
401-
Indian Penal Code, 1860- Section 406-
Dowry Prohibition Act- Section 2 & 6 -
Criminal revision against acquittal -The
finding of the trial court that articles were
given for the joint use and there is no
entrustment in favour of the accused,
hence no offence under section 406 IPC is
made out, are illegal and against the law.
From the provisions of section 6 of Dowry
Prohibition Act it is clear that complainant
was entitled to receive possession of the
articles which were given at the time of
marriage and were in possession of the
accused. Refusal in this regard will attract
section 406 IPC and if there is sufficient
and realiable evidence on record then
accused may be convicted.

Articles given at the time of marriage will
constitute an entrustment and cannot be said to
be for joint use- Refusal to return the said
articles will constitute the offence under section
406 of the IPC.

(B) Indian Penal Code, 1860- Section 406-
Indian Evidence Act, 1872- Section 65- As
documentary evidence a list of articles
alleged to be given at the time of marriage
and photocopy of receipt of motorcycle
have also been filed- The list has not been
duly proved as per provisions of Evidence
Act. There is no cogent and sufficient
evidence on the record to prove the
charge under section 406 IPC and hence
710 INDIAN LAW REPORTS ALLAHABAD SERIES
finding of acquittal recorded by the court
below cannot be interfered. Although the
findings recorded by the court below that
articles were given for their joint use and
there is no entrustment and hence offence
under section 406 IPC is not made out, are
not according to law, but as there is no
cogent and sufficient evidence on the
record, the charge under section 406 IPC
is not stands proved and finding of
acquittal recorded by the trial court
cannot be interfered with.

As the list of articles has not been proved in
accordance with the provisions of the Evidence
Act, therefore offence under section 406 is not
made out although the finding that the articles
given at the time of marriage would not
constitute an entrustment is illegal.

Criminal Revision rejected. (E-3) (Para 10,
11, 12, 13)

Judgements/ Case law relied upon:-

## Text

2 All. Mohammad Sadik Vs. State of U.P. & Ors.
709

32. In In Re: Expeditious Trial of
Cases Under Section 138 of N.I. Act 1881
(supra), the Hon'ble Supreme Court has
been pleased to hold that Section 202 (2) of
the Code in respect of examination of
witnesses on oath is not applicable to the
complaints filed under Section 138 of the
Act. The evidence of witnesses on behalf of
the complainant shall be permitted on
affidavit. If the Magistrate holds an inquiry
himself, it is not compulsory that he should
examine the witnesses. In suitable cases,
the Magistrate can examine documents for
satisfaction as to the sufficiency of grounds
for proceeding under Section 202 Cr.P.C.
As
the
Magistrate
has
taken
into
consideration the complainant's affidavit
and the documentary evidence on record,
he has complied with the mandate of
Section
202
Cr.P.c.
Therefore,
the
submission of the learned counsel for the
revisionists regarding non-compliance of
Section 202 Cr.P.C. is also without any
force and is hereby rejected.

33. In view of the aforesaid reasons,
this Court does not find any illegality in the
impugned order dated 18.10.2021 passed
by the learned Court below in Complaint
Case No. 6823 of 2019.

34. Accordingly, the instant Criminal
Revision lacks merits and is hereby
dismissed at the admission stage. The
learned Court below may proceed with the
trial of Complaint Case No. 6823 of 2019
under Section 138 of the Negotiable
Instrument Act against the revisionist No. 2
as being the Proprietor of M/s Neel
Jewelers, the entire liability for its action
lies on the revisionist No. 2.
----------
(2022)02ILR A709
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.01.2022
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 2646 of 2014

Mohammad Sadik ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Viveka Nand Rai, Sri Sanjiv Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Surendra Kumar Tripathi

(A)
Criminal
Law-
Code
of
Criminal
Procedure,
1973-
Section
397/
401-
Indian Penal Code, 1860- Section 406-
Dowry Prohibition Act- Section 2 & 6 -
Criminal revision against acquittal -The
finding of the trial court that articles were
given for the joint use and there is no
entrustment in favour of the accused,
hence no offence under section 406 IPC is
made out, are illegal and against the law.
From the provisions of section 6 of Dowry
Prohibition Act it is clear that complainant
was entitled to receive possession of the
articles which were given at the time of
marriage and were in possession of the
accused. Refusal in this regard will attract
section 406 IPC and if there is sufficient
and realiable evidence on record then
accused may be convicted.

Articles given at the time of marriage will
constitute an entrustment and cannot be said to
be for joint use- Refusal to return the said
articles will constitute the offence under section
406 of the IPC.

(B) Indian Penal Code, 1860- Section 406-
Indian Evidence Act, 1872- Section 65- As
documentary evidence a list of articles
alleged to be given at the time of marriage
and photocopy of receipt of motorcycle
have also been filed- The list has not been
duly proved as per provisions of Evidence
Act. There is no cogent and sufficient
evidence on the record to prove the
charge under section 406 IPC and hence
710 INDIAN LAW REPORTS ALLAHABAD SERIES
finding of acquittal recorded by the court
below cannot be interfered. Although the
findings recorded by the court below that
articles were given for their joint use and
there is no entrustment and hence offence
under section 406 IPC is not made out, are
not according to law, but as there is no
cogent and sufficient evidence on the
record, the charge under section 406 IPC
is not stands proved and finding of
acquittal recorded by the trial court
cannot be interfered with.

As the list of articles has not been proved in
accordance with the provisions of the Evidence
Act, therefore offence under section 406 is not
made out although the finding that the articles
given at the time of marriage would not
constitute an entrustment is illegal.

Criminal Revision rejected. (E-3) (Para 10,
11, 12, 13)

Judgements/ Case law relied upon:-

1. Pratibha Rani, 1985 Cri LR 817

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A. for the
State-respondent.

2. This criminal revision is directed
against the judgment and order dated
07.08.2014 passed by Additional Sessions
Judge, Court No.1, District Agra, in
Criminal Appeal No.340 of 2013, arising
out of judgment and order passed by
Additional Chief Judicial Magistrate,
Agra, Court No.4, in Complaint Case
No.46 of 2010 (Mohammad Sadik Vs.
Hasmuddin and others) dated 18.10.2013,
under section 406 IPC, Police Station
Shahganj,
District
Agra,
acquitting
opposite party nos. 2 and 3 from the
charges under section 406 IPC. The
appellate court has dismissed the appeal
filed against the aforesaid judgment and
order of acquittal.

3. In brief, the facts are that the
complainant/revisionist Mohammad Saddik
(wrongly mentioned as Mohammad Sadik
in revision) filed a complaint before the
concerned Magistrate, alleging therein that
he performed marriage of his daughter
Shabana
with
opposite
party
no.1
Hasmuddin on 08.11.2005. He has given
ornaments, wearing apparels etc. at the
time of marriage and spent Rs.3 lacs on it.
Opposite
parties
also
demanded
a
motorcycle. On 09.10.2005 complainant
purchased one C.T.-100 motorcycle for
Rs.32,300/- in the name of opposite party
no.1 on his saying that he will return it
whenever asked by the complainant.
Articles as mentioned in the list attached
with the complaint, were given with
condition that it will come in the use of the
daughter of complainant and if opposite
parties ill treat her, then they have to return
all the things. It is further alleged that
sometime after the marriage the opposite
party no.1 and his family members, started
making demand of Rs.1 lacs and on refusal
they burnt to death the daughter of
complainant by pouring kerosene on her.
Complainant asked the opposite parties to
return the motorcycle and other articles, but
they refused. Complainant also sent two
notices
through
registered
post.
Complainant also gave an application to the
police, but neither any action was taken nor
articles
were
returned.
The
learned
Magistrate summoned the opposite parties
under section 204 Cr.P.C. to face trial for
charge under section 406 IPC. After
framing charge and taking evidence the
learned Magistrate vide its judgment and
order dated 18.10.2013 held that opposite
parties/accused
Hasmuddin
and
Shamshuddin are not guilty for the charge
2 All. Mohammad Sadik Vs. State of U.P. & Ors.
711
under section 406 IPC and acquitted them.
Aggrieved by the aforesaid judgment and
order
of
acquittal
the
complainant/revisionist
filed
Criminal
Appeal No.340 of 2013 (Mohammad
Saddik Vs. State of U.P. and others), which
was dismissed by the Additional Sessions
Judge, Court No.1, District Agra on
07.08.2014.

4. Learned counsel for the revisionist
contended that the ornaments and other
articles and motorcycle given at the time of
marriage by the revisionist to his daughter
are the stridhan of his daughter. The
husband of his daughter Hasmuddin is
living in a joint family with his parents and
entire stridhan is still in possession of the
opposite parties and they have refused to
return it. The courts below have failed to
consider that there is specific allegation of
entrustment
to
the
opposite
parties
exclusively, but both the courts below have
failed to consider this aspect and have
wrongly acquitted the opposite parties.
After the death of victim her parents are
entitled to receive stridhan and refusal in
this respect will be an offence under section
406
IPC.
Learned
counsel
for
the
revisionist further contended that the order
of acquittal of opposite parties is illegal,
unjustified and contrary to the facts and
evidences on record and also against the
settled principles of law.

5. From allegations made in the
complaint it is clear that father of the
deceased has filed this complaint to get
back the ornaments and various other
articles given at the time of the marriage of
his daughter who had died unnatural death
within seven years of her marriage and for
which the opposite parties have been
charged for dowry death. It is alleged that
the articles are in possession of the opposite
parties and they have refused to return it.

6. Section-2 of the Dowry Prohibition
Act defines dowry and provides as
follows:-

"2. Definition of "dowry".-- In
this Act, "dowry" means any property or
valuable security given or agreed to be
given either directly or indirectly-

(a) by one party to a marriage to
the other party to the marriage; or

(b) by the parents of either party
to a marriage or by any other person, to
either party to the marriage or to any other
person;

at or before * [or any time after
the marriage] ** [in connection with the
marriage of the said parties, but does not
include] dower or mahr in the case of
persons to whom the Muslim Personal Law
(Shariat) applies.

Explanation 1.--[***]

Explanation II.--The expression
"valuable security" has the same meaning
as in Section 30 of the Indian Penal Code
(45 of 1860)."

7. Section-6 of the Dowry Prohibition
Act, provides as follows:-

"6. Dowry to be for the benefit of
the wife or her heirs.--(1) Where any
dowry is received by any person other than
the woman in connection with whose
marriage it is given, that person shall
transfer it to the woman--
712 INDIAN LAW REPORTS ALLAHABAD SERIES

 (a) if the dowry was received
before marriage, within [three months]
after the date of marriage; or

 (b) if the dowry was received at
the time of or after the marriage, within
[three months] after the date of its receipt;
or

 (c) if the dowry was received
when the woman was a minor, within one
year after she has attained the age of
eighteen years, and pending such transfer,
shall hold it in trust for the benefit of the
woman.

 [(2) If any person fails to
transfer any property as required by subsection (1) within the time limit specified
therefor, [or as required by sub-section
(3),]
he
shall
be
punishable
with
imprisonment for a term which shall not be
less than six months, but which may extend
to two years or with fine [which shall not
be less than five thousand rupees, but
which may extend to ten thousand rupees]
or with both.]

 (3) Where the woman entitled
to any property under sub-section (1) dies
before receiving it, the heirs of the woman
shall be entitled to claim it from the person
holding it for the time being.

[Provided
that
where
such
woman dies within seven years of her
marriage, otherwise than due to natural
causes, such property shall.--

(a) if she has no children, be
transferred to her parents; or

(b) if she has children, be
transferred to such children and pending
such transfer, be held in trust for such
children.]

[(3-A)
Where
a
person
convicted under sub-section (2) for
failure to transfer any property as
required by sub-section (1) [or subsection (3)] has not, before his conviction
under that sub-section, transferred such
property to the woman entitled thereto or,
as the case may be, [her heirs, parents or
children] the Court shall, in addition to
awarding punishment under that subsection, direct, by order in writing, that
such person shall transfer the property to
such woman or, as the case may be, [her
heirs, parents or children] within such
period as may be specified in the order,
and if such person fails to comply with
the direction within the period so
specified, an amount equal to the value of
the property may be recovered from him
as if it were a fine imposed by such Court
and paid to such woman or, as the case
may be, [her heirs, parents or children].

(4) Nothing contained in this
section shall affect the provisions of
section 3 or section 4."

8. Both the courts below have lost
sight of the aforesaid relevant provisions
and have not considered it. The trial
court had acquitted the accused on the
ground that articles were given to the
bride and bride groom at the time of
their marriage fro their joint use and so
it does not come within the purview of
section 406 IPC.

9. The Hon'ble Apex Court in the
case of "Pratibha Rani, 1985 Cri LR
817, has made the following observations
in Paras 20, 27 & 57:-
2 All. Mohammad Sadik Vs. State of U.P. & Ors.
713

"we are clearly of the opinion that
the mere factum of the husband and wife
living together does not entitle either of
then to commit a breach of criminal law
and if one does then he/she will be liable
for all the consequences of such breach.
Criminal law and matrimonial home are not
strangers.
Crimes
committed
in
matrimonial home are as much punishable
as anywhere else. In the case of stridhan
property also, the title of which always
remains with the wife though possession of
the same may sometimes be with the
husband or other members of his family, if
the husband or any other member of his
family commits such an offence, they will
be liable to punishment for the offence of
criminal breach of trust under Sections 405
and 406 IPC. 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.

10. The finding of the trial court that
articles were given for the joint use and
there is no entrustment in favour of the
accused, hence no offence under section
406 IPC is made out, are illegal and against
the law. The appellant court has also upheld
the

11. From the provisions of section 6
of Dowry Prohibition Act it is clear that
complainant
was
entitled
to
receive
possession of the articles which were given
at the time of marriage and were in
possession of the accused. Refusal in this
regard will attract section 406 IPC and if
there is sufficient and realiable evidence on
record then accused may be convicted.

12. From the perusal of the lower
court record it is clear that complainant
(revisionist) to prove his case has examined
three witnesses, Mohd. Saddik (P.W.-1,
complainant himself), Mohd. Israil (P.W.-2)
&
Wasim
(P.W.-3). As
documentary
evidence a list of articles alleged to be
given at the time of marriage and
photocopy of receipt of motorcycle have
also
been
filed.
The
list
contains
description of various articles, some in
print form and some hand written and it
contains
signature
of
Hasmuddin.
Complainant Mohd Saddik (P.W.-1) in his
statement in chief has said that "whatever
articles I have given to my daughter, was
given to her, for her use. After preparing a
list copy of it was given to the father-in-law
of his daughter and signature of bride
groom was obtained on it". Wasim (P.W.-3)
is the son of complainant has said that a list
of articles was prepared and signature of
Hasmuddin was obtained on it, while
Mohd. Israil (P.W.-2) has said that a list of
articles was prepared. None of the
witnesses have identified the signature of
accused Hasmuddin on the list. Witnesses
have also not said that accused Hasmuddin
has put his signature on the list before
them. The description of ornaments is hand
written while the description of other
articles is in print form. The list bear only
one signature that is of Hasmuddin and
there is no signature of any witness on it. It
is also not clear that who has prepared this
list and who has hand written the
ornaments described in the list. So from the
analysis of the evidence produced by the
complainant it is clear that the list has not
been duly proved as per provisions of
Evidence Act. So there is no cogent and
sufficient evidence on the record to prove
the charge under section 406 IPC and hence
finding of acquittal recorded by the court
below cannot be interfered.
714 INDIAN LAW REPORTS ALLAHABAD SERIES

13. From the aforesaid discussion it is
clear that although the findings recorded by
the court below that articles were given for
their joint use and there is no entrustment
and hence offence under section 406 IPC is
not made out, are not according to law, but
as there is no cogent and sufficient
evidence on the record, the charge under
section 406 IPC is not stands proved and
finding of acquittal recorded by the trial
court cannot be interfered with. The
criminal revision lack merits and is liable to
be dismissed.

14. Accordingly, the criminal revision
is dismissed.

15. Lower court record be transmitted
back to the concerned court below.
----------
(2022)02ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Second Appeal No. 584 of 2021

Jokhan ...Appellant
Versus
Murtuja & Ors. ...Respondents

Counsel for the Appellant:
Sri Kashi Nath Shukla, Sri Sneh Ranjan Shukla

Counsel for the Respondents:
Sri Santosh Kumar Rai, Sri Surendra Kumar
Chaubey

A. Civil Law - - Scope of Second Appeal -
Civil Procedure Code, 1908 - Section 100 -
The appellant has challenged the order dated
12.10.2018/
25.10.2018
by
which
delay
condonation application has been rejected. The
Court held that such an order is not a
decree but only a formal order. The
consequential order of dismissal of first
appeal will come in the purview of decree
but that is not under challenge. The Second
Appeal
is
not
maintainable
against
the
impugned order. (Para 6)

Second Appeal Rejected. (E-10)
List of Cases cited:

1. Ishwar Saran Vs Vijay kumar Kushwaha &
ors. Second Appeal No. 1169 of 2018

2. Mata Pher Mishra Vs St. of U.P. & ors. Special
Appeal Defective No. 242 of 2021

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. This Second Appeal is directed
against an order of the learned Additional
District Judge, Court No.4 Mau, Misc.
Case No.103 of 2018 (Jokhan and ors
vs.Murtaza
and
ors.)
rejecting
an
application to condone the delay in
preferring an appeal from the judgment and
decree of the Additional Civil Judge
(Junior Devision) court no.8 Azamgarh
dated 24.01.1998 passed in Original Suit
No.540 of 1986.

2. Relevant facts for the decision of
the second appeal are that respondentsplaintiffs filed a Suit for cancellation of
sale deed and injunction against the
appellants-respondents. In that original suit
the
appellants-respondents
filed
their
counter claim seeking relief of possession
and injunction against the plaintiffsrespondents. The learned trial court vide
judgment and decree dated 24.01.1998
dismissed the original suit as well as the
counter claim. This decree was challenged
by the plaintiffs-respondents in civil appeal
no.54 of 1998 which was later transferred
to the District Mau and numbered as Civil