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Harish Mirchandani vs Manish Darira on 2 July, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 22nd March, 2018
Judgment delivered on: 02nd July, 2018
+ CRL.REV.P. 252/2015
HARISH MIRCHANDANI ….. Petitioner
versus

MANISH DARIRA ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Narender Mukhi, Adv. with petitioner in person.

For the Respondents : Mr. R.P. Luthra, Mr.Vikas Chadha and Mr. Sourach
Luthra, Advocates

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J

CRL.REV.P. 252/2015, Crl. M.A. 14213/2015 (stay), Crl. M.A.
13546/2017 (for early hearing), Crl. M.A. 13547/2017 (stay), Crl.
M.A. 4864/2108 (for early hearing) Crl. M.A. 4865/2018 (stay)

1. The petitioner impugns order dated 30.03.2015 passed by the
Revisional Court whereby the Revision Petition filed by the
respondent has been allowed and the order of the Trial Court
dismissing the complaint filed by the Respondent has been set aside
and the petitioner has been directed to appear before the trial court to
face trial for an offence under Section 406 of the Indian Penal Code
(IPC).

CRL.REV.P.252-2015 Page 1 of 8

2. The petitioner is the father-in-law of the respondent. The
respondent was married to the daughter of the petitioner on
08.05.2009, however, within 12 days of the marriage the parties fell
out and it is alleged that the respondent left the daughter of the
petitioner to her parents’ house and thereafter did not permit her to
enter her matrimonial home.

3. It is alleged by the respondent that for the purpose of an
amicable resolution, the petitioner approached the Sindhi Panchayat
wherein a settlement was arrived at and all the items, gifts, electronic
items, jewellery, etc. along a sum of Rs. 8 lakhs were returned by the
respondent to the petitioner in full and final settlement of all claims of
the petitioner, his family as well as the daughter of the petitioner. It is
contended that despite the said settlement, the daughter of the
petitioner filed a claim for maintenance. It is alleged by the
respondent that because the daughter of the petitioner has filed a claim
for maintenance, the petitioner has committed an offence under
Section 406 of the IPC of criminal breach of trust and thus is liable to
be punished.

4. Initially the complaint was filed against six persons including
the Sindhi Panchayat, which was arrayed as proforma party. However,
by application dated 01.08.2014, the respondent restricted the
complaint only to the petitioner for the offence under Section 406
IPC.

CRL.REV.P.252-2015 Page 2 of 8

5. The trial court, by order dated 28.05.2011, refused to issue
directions under Section 156(3) of the Cr. P.C. and directed the
petitioner to lead pre-summoning evidence.

6. Subsequently, by order dated 21.06.2014, after the pre-
summoning evidence was led, the trial court dismissed the subject
complaint, holding that no criminal offence was made out.

7. The basis of the complaint filed by the Respondent against the
petitioner is that the petitioner has committed an offence under
Section 406 of the IPC. The allegation of the respondent is that after
disputes had arisen, the petitioner approached the Sindhi Panchayat
and a settlement was arrived at and respondent/complainant returned
all the articles, gold jewellery, gold coins received from the petitioner
and his family and even paid a sum of Rs. 8 lakhs to the petitioner. It
is alleged that the said amount of Rs. 8 lakhs was paid as full and
final settlement of all claims of the petitioner, his family and his
daughter i.e. wife of the complainant.

8. It is contended by the Respondent that despite having received
the said amount, the petitioner failed to hand over the said amount to
his daughter and his daughter filed an independent claim for
maintenance and permanent alimony and thus the petitioner has
committed the offence of breach of trust.

9. The contention of the petitioner, per contra, is that the petitioner
had a claim not only of the jewellery articles and dowry items given to

CRL.REV.P.252-2015 Page 3 of 8
the respondent and his family but also had a claim against the
respondent for expenditure incurred by the petitioner on the marriage
of his daughter. It is contended by the petitioner that the settlement
was only qua the items given at the time of the marriage and the
expenditure incurred and there was no settlement between daughter of
the petitioner and the respondent. It is submitted that the receipt relied
on by the respondent does not even mention that there was any
settlement between the daughter of the petitioner and the respondent
leave alone with regard to her claim for maintenance etc.

10. Further, it is contended that the ingredients of Section 406 of
the IPC are not satisfied and ex-facie no offence under Section 406
IPC is made out.

11. As the Respondent has based his entire complaint on the receipt
executed by the petitioner, it would be expedient to extract the same.
Receipt dated 28.06.2009 reads as under:-

―I, Harish Kumar Mirchandani, father of Kanika
Mirchandani R/o C-72, Ashok Vihar, Delhi – 52 have
received all the 25 (Twenty Five) items of gifts including
all the electronic items and all the jewellery items from
Shri Manish Darira s/o Damodar Darira R/o M-3/C-11,
Jhulelal Apartments, Pitampura, Delhi – 110034, during
the week from Tuesday to Friday, the 25th June, 2009.

Today in presence of Sindhi Panchayat Kamla Nagar
(Regd.) Delhi I have received Rs. 8,00,000/- (Eight Lakh)
cash and 5 (five) guinnies of gold also from Mr. Manish
Darira for the final settlement. After this, I have no claim
of any kind of money or jewellery from Mr. Manish

CRL.REV.P.252-2015 Page 4 of 8
Darira. This also includes that no member of my family
will claim anything from Manish Darira family. I have
given back Manish Darira’s all items including all
jewellery.‖

12. It is an admitted position that the receipt does not bear the
signatures of either the daughter of the petitioner or the respondent.
Perusal of the receipt shows that there is no reference made in the
receipt with regard to settlement of any claim of the daughter of the
petitioner. The receipt acknowledges that on receipt of the said
amount, the petitioner shall have no claim of any kind of money or
jewellery from the respondent. Though the receipt records that the
said amount includes that no member of the family of the petitioner
would make any claim against the respondent and his family,the
receipt specifically does not make a mention about any claim of the
daughter of the petitioner, nor does it refer to any claim of Stridhan or
maintenance.

13. The contention of the learned counsel for the respondent that as
the petitioner has recorded that no family member of the petitioner
would make any claim, it should be inferred that all claims of the
daughter of the petitioner have also been settled and she shall not
make any claim, is not sustainable. If there was any settlement
between the Respondent with the daughter of the petitioner of any
nature, the receipt would have specifically stated so. The receipt
makes no reference to settlement of any dispute between the daughter
of the petitioner and the respondent. It is not even signed by either of

CRL.REV.P.252-2015 Page 5 of 8
them. If the amount of Rs.8,00,000/- given to the petitioner was for
settling any claims of the daughter of the petitioner, the receipt would
have specifically stated so. On the other hand, the receipt specifically
records that the petitioner thereafter would have no claim for money
or jewellery against the respondent.

14. Section 405 of the IPC reads as under:-

―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 wilfully suffers any other person so to do, commits
―criminal breach of trust‖.

15. The prerequisite for an offence of Criminal breach of trust is
entrustment with property or dominion over the same. There is
nothing in the receipt to show that the said amount of Rs. 8,00,000/-
was entrusted to the petitioner by the respondent with any specific
direction (i.e. for payment to the daughter of the petitioner). In fact,
the receipt records that the amount is paid to the petitioner and on
payment of the same all his claims for money and jewellery would be
satisfied.

16. The Revisional court has clearly erred in reversing the decision
of the Trial Court. There is no basis for the Revisional court to even

CRL.REV.P.252-2015 Page 6 of 8
prima facie come to the conclusion that the ―amount of Rs. 8,00,000/-
was received by the petitioner on behalf of his daughter Kanika
Darira‖ and ―After receiving the amount of Rs. 8,00,000/- on behalf
of Kanika Darira, the same was neither handed over by the
Respondent (petitioner herein) to Ms Kanika Darira nor returned…..‖
As noticed above the receipt does not mention that the amount is
received by the petitioner for or on behalf of his daughter, rather it
records that his claims for money and jewellery are satisfied. There is
no reference at all in the receipt to claims of the daughter of the
petitioner for maintenance, alimony etc. The complaint clearly
appears to be an attempt on the part of the respondent to force the
daughter of the petitioner to give up her claims.

17. Learned counsel for the respondent further relied on
correspondences of the Sindhi Panchayat, inter-alia, letter dated
06.07.2009 which is in the form of a certificate certifying that the
Panchayat had got returned all articles which had been exchanged at
the time of the marriage and that between the two parties all the
disputes with regard to exchange of articles have been settled and
further proceedings would be dependent on the decision of the court.

18. This communication was disputed by the petitioner who
contended that admittedly it did not bear the signature of the petitioner
or his daughter and had been signed by the relations of the petitioner
on 07.02.2013 only as an acknowledgement of receiving a copy of
the same. This communication does not support the case of the

CRL.REV.P.252-2015 Page 7 of 8
respondent as it has no reference to the claim of the maintenance etc.
of the daughter of the petitioner. Further correspondences, inter-alia,
dated 31.07.2009 and 09.09.2009 relied on by learned counsel for the
respondent, merely go on to show that the petitioner was being called
upon to sign a settlement agreement. This further fortifies the
contention of the petitioner that there was no full and final settlement
between the parties.

19. It is further disputed by the petitioner that it was he who
approached the Sindhi Panchayat, it is contended that it was
respondent’s father who had approached the Sindhi Panchayat. In my
view, it does not make any difference as to whether the petitioner or
respondent or his father approached the Sindhi Panchayat. What is
germane is that the receipt, which is made the sole basis of the
complaint, does not show that any claims of the daughter of the
petitioner are settled.

20. In view of the above and keeping in view the totality of facts
and circumstances, I am of the view that the Revisional court has
clearly fallen in error in prima facie holding that an offence under
section 406 IPC is made out. The impugned order dated 30.03.2015 is
accordingly set aside. Petition is allowed. There shall be no orders as
to costs.

SANJEEV SACHDEVA, J
JULY 02, 2018
‘rs’

CRL.REV.P.252-2015 Page 8 of 8

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