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Nasir Khan Mistri Vs. Fyaz Hossain - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal57,72Ind.Cas.348
AppellantNasir Khan Mistri
RespondentFyaz Hossain
Excerpt:
penal code (act xlv of 1860), section 403 - marriage negotiation, break down of--bona fide intention to marry--refusal to return presents--criminal misappropriation. - .....doubt as to whether the accused committed criminal misappropriation in refusing to return the presents. it must be remembered that a serious affront was put on him when the complainant withdrew with the bridegroom's party, and that the accused must have incurred expenditure, which complainant's-, conduct caused to be fruitless. i do not wish to justify the action of the accused or to lay down a general proposition that whenever marriage negotiations break down, the relatives of the lady have a right to retain the presents made with a view to the marriage, but, in the circumstances of this case, i think it is reasonable to hold that the element of dishonesty on the part of the accused has not been proved beyond doubt. and that the civil court is the proper tribunal for the parties to seek.....
Judgment:

Walmsley, J.

1. The petitioner has teen convicted under Section 403, Indian Penal Code and sentenced to pay a fine of Rs. 125.

2. The case for the prosecution is that an arrangement had been made for the accused to give his two daughters in marriage, one to the complainant's son and the other to his brother-in-law, and that complainant accordingly went to the accused's house with sweets, ornaments and clothing to perform the betrothal ceremony, and that the accused, pretending that the gilts were not as good as they should be, broke off the negotiations, and that afterwards the accused instead of returning the presents kept putting off the complainant with evasive answers and finally refused altogether to return the articles.

3. The accused tells a different story: He says that the negotiations broke down because the parties could not agree about the dower, and he appears to think that, because, according to him, the fault lay at the door of the complainant, he has a right to retain the articles brought by the complainant.

4. We may leave the perishables out of consideration and deal only with the ornaments and clothes. There is no doubt that they were delivered to the accused as a preliminary to the marriages and that they have been retained by him.

5. There are two explanations of the reason for this retention. If the complainant's story is correct the accused committed cheating, but it seems very doubtful whether that story is correct, and the learned Magistrate does not seem to have been prepared to accept it in its entirety. For my part I am disposed to regard the accused's explanation as the more probable, that is to hold that there was a bona fide intention on the part of the accused to give the girls m marriage, and that this intention was frustrated by an unfortunate disagreement as to the terms of the dower.

6. In these circumstances, I feel grave doubt as to whether the accused committed criminal misappropriation in refusing to return the presents. It must be remembered that a serious affront was put on him when the complainant withdrew with the bridegroom's party, and that the accused must have incurred expenditure, which complainant's-, conduct caused to be fruitless. I do not wish to justify the action of the accused or to lay down a general proposition that whenever marriage negotiations break down, the relatives of the lady have a right to retain the presents made with a view to the marriage, but, in the circumstances of this case, I think it is reasonable to hold that the element of dishonesty on the part of the accused has not been proved beyond doubt. and that the Civil Court is the proper tribunal for the parties to seek a settlement of their dispute.

7. Accordingly, the Rule is made absolute, the conviction and sentence of the petitioner are set aside and the fine, if paid, will be refunded.

Suhrawardy, J.

8. I agree.


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