I married in 2012.My wife left in 2013.Immediately,she filed case u/s 498a/406 against us giving list of stridhan gold in FIR,mentioning some are kept in my mother’s bank locker and some with me.We got AB from Hon’ble HC with undertaking “ your petitioner undertakes to handover the said Stridhan articles to the complainant forthwith” in the Affidavit. Nothing was mentioned in the Hon’ble HC AB order about Stridhan. We did not return the same because my wife implicated me in false cases. Our advocate here told us that” you can take out all golds from the locker because no court can break open that locker of your mother “.Police tried to contact us but failed many times. Police applied to the Hon’ble ACJ Magistrate for sealing of the locker but he declined saying that IO has enormous power to recover stridhan. Police again tried to contact us several times but could not get us. At last after 8 months of FIR, police again gone to Hon’ble ACJ Magistrate and he ordered for sealing the bank locker. After some days, we gone to return the stridhan to police from the sealed locker only. Balance stridhan, we have not given, because there is no proof of those stridhan. Police submitted charge-sheet recently mentioning us as primafacie accused u/s 498a /406. 498a cannot be proved by them. Is there any chance of our getting convicted u/s 406,even though we have returned the stridhan?As per SC judgement on ” Pratibha Rani vs Suraj Kumar & Anr on 12 March, 1985” which says :- "……….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…….." Division bench confirmed that “……We find ourselves in entire agreement with this decision and hold that this was correctly decided…..”. Is there any way out for avoiding conviction u/s 406? I shall be grateful to you.
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1. When the undertaking had been given to the HC to return the stridhan you should have honoured it.
2. The SC judgment has been quoted by you out of context. It has no application to your case.
3. If you want to be exonerated in the case then contest the charges fittingly. There is no other way to avoid conviction. Judgments do not help in the court, the evidence or lack of it does.
The conviction under 406 IPC has nothing to do with return of articles after filing of case. You were supposed tor return the same before filing the case. However still 406 in such event never succeeds because the complainant can not prove that she indeed demanded and the return was refused.
In your case I find no reason why you would be convicted under said provision of law.
Fight the case on merit and try to take help of lawyer and all the benefit will go in your favour and the court will pass an acquittal order.
In my opinion the referred citation will not suit your case, it appears to be unrelated to the case in hand. You have stated to have returned the Stridhan articles that too after breaking open the seal by the police and it was handed over then and there itself, so there is no question of misappropriation. Further about the other left out items, it is their burden to prove that the other items found in the list have been entrusted to you or not at any point of time. So, the action of returning the streedhan items from the bank locker can be recognised as a genuine act and that will add merits to your case hence the chances of conviction under this section is very remote.
