The central legal point established in the judgment is the requirement to fulfill the elements of criminal breach of trust as defined in section 405 IPC to establish the commission of the offence under Section 406 IPC.

1. Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. P.K. Kalita, learned counsel along with Mr. G. Kakati and Mr. N. Das, learned counsel appearing for the respondent no.1. I have also heard Mr. D. Das, learned Additional PP, Assam representing the respondent No. 2 i.e. the State of Assam.

2. By means of this petition, the complainant/petitioner has prayed for leave to appeal against the judgment dated 26/05/2014 of the learned SDJM-I(S), Kamrup, Guwahati, passed in case NO. 279(C)/2010. By the said judgment the accused respondent No.1 has been acquitted of the charge under section 406 IPC. According to Mr. Mannan, learned counsel for the petitioner/complainant, there is error of judgment in dismissing the complainant towards acquittal of the accused respondent No.1. On the other hand, Mr. Kalita, learned counsel representing the said respondent, submits that the complainant having failed to make out a prima facie case against the accused respondent NO.1, the learned trial Court has rightly rejected the complaint and acquitted the accused respondent No.1.

3. Case No. 279 (C)/20o10 was registered on the basis of the complaint filed by the appellant/petitioner. The prayer made in the complaint petition was to take cognizance of the offence under Section 406 IPC by issuing process against the accused respondent No.1. As stated in the said complaint petition, marriage was solemnized between the parties i.e. the complainant and the accused respondent No.1 on 04/05/2013 and out of the said wedlock, twin babies (one male and one female) were born on 10/03/2004. At the time of filing the complaint, they were six years old. Along with the complaint petition, a list of material was enclosed stating that the said materials were given to the complainant at the time of her marriage.

4. As stated in the said complaint petition, differences arose between the parties and eventually the complainant was forced to leave the house of her husband i.e. the accused respondent No.1 in July, 2007 and thereafter she started living with her parents. As further stated in the complaint petition, on the basis of the FIR lodged by the complainant, all Women Police Station Case No. 83/2008 was registered under Section 498(A)/120(B) IPC against the accused respondent No.1 and others. In the said case, he was arrested and was sent to judicial custody. However, later on, he was released on bail. Referring to the Annexure-II agreement, the complainant alleged that as per the said agreement, the accused respondent No.1 was to return the stridhan to her but on approach he declined to do so. As stated in the complaint, the accused is now a resident of Siliguri town in the State of West Bengal.

5. The learned trial Court on receipt of the complaint and after observing the due formalities, called upon the accused respondent No.1 to face the trial. Charge having been framed under Section 406 IPC, the same was read over and explained to him to which he pleaded not guilty and claimed to be tried.

6. During trial, the prosecution examined 3 (three) witnesses which included the complainant (PW-1) and her father (PW-3). PW-2 is an independent witness. The statement of the accused was also recorded under Section 313 Cr.P.C. The learned trial Court raising the following points for determination, having answered the same in the negative towards acquittal of the accused respondent No.1 vide the impugned judgment referred to above, the complainant has filed an appeal against the same and vide this petition, has prayed for grant of leave to do so.

“Whether the accused being entrusted with the stridhan articles of the complainant, dishonestly misappropriated the same and converted them to his own use?”

7. I have given my anxious consideration to the submissions made by the learned counsel for the parties and also perused the entire materials on record. The petitioner has brought on record the evidence that was adduced by the complainant throu