ASHOK KUMAR DOSHI v. SIYARAM CHHOTELAL VAISYA — 1981 DIGILAW 49 (MP)

JUDGMENT : ( 1. ) THIS is a petition under section 482 of the Code of Criminal procedure, for issuance of suitable order or direction quashing the proceedings in Criminal Original Case No. 7 of 1976 in the Court of the Chief judicial Magistrate, Bhind (M. P. ). ( 2. ) THE facts giving rise to the petition are that there is a cold storage by name M/s. Neelam Cold Storage, a partnership film situated in Industrial Area, Lahar Road, Bhind. The partnership firm is engaged in the business of cold storage of potatoes. The said partnership was constituted in the year 1971 with two partners, namely, Shri Sureshchand Jain and shri Nemichand Jain. On 1-4-1974, four more partners were taken in the partnership. They were Krishnadass Doshi, Ashok Kumar Doshi (the petitioner), Anup Kumar Doshi and Kailash Chand Jain. In 1975, three of the six partners separated from the partnership firm. They are Sureshchand jain, Nemichand Jain and Kailashchand Jain. The remaining partners continued to be the partners of the said firm. The remaining partners are krishnadass Doshi, Ashok Kumar Doshi and Anup Kumar Doshi. ( 3. ) NON-PETITIONER Siyaram Vaishya filed a complaint in the Court of the Chief Judicial Magistrate, Bhind on 18-11-1974 under sections 407,323, 504 and 506-B of the Indian Penal Code, against the petitioner. A copy of the complaint filed is annexed with the petition and is marked as Annexure I. It was alleged in the complaint that the complainant engages in the business of potatoes and the petitioner is the owner of the cold storage situate in the Industrial Area, Lahar Road, Bhind. The potatoes are stored along with other articles under certain conditions entered between the businessmen of the potatoes and the partners of the above-mentioned firm. An agreement was also entered some 8 or 9 months prior to the filing of the complaint, between the complainant and the firm. The complainant further alleges that he kept about 1409 bags of potatoes in the cold storage. It was further alleged that the complainant was to pay Rs. 10 per quintal as rental charges for keeping the potatoes in the cold storage. The complainant, from time to time, removed certain bags of potatoes from the cold storage as and when necessary and as the business demanded. The total of all bags lifted by the non-petiiioner is 1250 bags. 10 per quintal as rental charges for keeping the potatoes in the cold storage. The complainant, from time to time, removed certain bags of potatoes from the cold storage as and when necessary and as the business demanded. The total of all bags lifted by the non-petiiioner is 1250 bags. The complaint further says that on 8-5-1974 and 20-8-1974, the complainant got some gate passes for removal of 11 bags and 130 bags of the potatoes respectively. But, as the market was not favourable, the complainant did not remove these bags and packets which were with the partnership firm. On 28-9-1974, the non-petitioner got a gate pass for 89 bags, but he removed only 42 bags of potatoes and as he was not in the need of the rest of the potatoes, he did not remove the remaining bags. Therefore, according to the complainant, he could not remove in all 188 bags of potatoes and the bags remained with the firm in the cold storage. Taking into account the bags kept in the cold storage and the bags removed by the non-petitioner, it is alleged that 347 bags of potatoes still remained with the partnership firm in the cold storage. ( 4. ) AS to the amount deposited with the partnership firm, the complainant says that he has deposited Rs. 9,040 at the rate of Rs. 10 per bag for 904 bags and a loan of Rs. 6,300, the complainant took from the cold storage on the securities of his potatoes. Thus, the total amount of money due against the complainant comes to Rs. 15,340. But, according to the complainant, during this period, that is from, 28-7-1974 to 19-8-1974, the complainant paid an amount of Rs. 12,000 and further amount of Rs. 10,000 to the partnership firm. Rs. 10,000 were paid through Prakash Chand Jain, adatiya. If this amount is taken into consideration, then the allegation is that the complainant owes nothing to the partnership firm. But, on the contrary, an amount of Rs. 6,660 has been overpaid by him to the cold storage. On 17 11-1974, when the complainant demanded 347 bags of potatoes and the amount of Rs. 6,660 to the petitioner, the petitioner informed him that there were no potatoes of the complainant left in the cold storage. But, on the contrary, an amount of Rs. 6,660 has been overpaid by him to the cold storage. On 17 11-1974, when the complainant demanded 347 bags of potatoes and the amount of Rs. 6,660 to the petitioner, the petitioner informed him that there were no potatoes of the complainant left in the cold storage. Thereupon, a quarrel arose and it is alleged by the complainant that the accused gave him beating by shoes and on his exhortation, the servants of the petitioner pushed out the complainant from the cold storage building. It was further alleged that the petitioner threatened the complainant that if he demanded any amount from him, he will be done away with. The sum and substance of the complaint comes to that the petitioner did not want to return the potatoes and this action of the petitioner shows his dishonesty and also shows that the petitioner wants to misappropriate the same. On these allegations, it was alleged that the offences under sections 323, 407, 506-B and 504, Indian Penal Code were committed. ( 5. ) ON 18-11-1974, non-petitioner Siyaram was examined under section 202, Criminal Procedure Code. In this statement, there was no allegation that he was beaten by shoes or anything else. No medical certificate is produced by Siyaram to show that he was hit by any hard blunt object. The complainant examined himself in the presence of the petitioner and he stated in his chief examination that between 16-3-1974 and 16-4-1974, he kept 1,409 bags of potatoes in the cold storage and out of these, 1011 were packets and 398 were bags. The petitioner produced the registered partnership deed to show that the two partnership-deeds were registered in the year 1971 and 1974. As he has become a partner in the firm in 1974, prior to 1-4-1974, the petitioner Ashok Kumar Doshi was, in any way, responsible for the affairs of the partnership, or with the transactions the non-petitioner had with the Neelam Cold Storage. ( 6. As he has become a partner in the firm in 1974, prior to 1-4-1974, the petitioner Ashok Kumar Doshi was, in any way, responsible for the affairs of the partnership, or with the transactions the non-petitioner had with the Neelam Cold Storage. ( 6. ) IN the matter of keeping goods in the cold storage, the conditions which are entered inter se the firm and the customer are (i) a reservation bond is to be filled in by the customer, (ii) when the goods are brought, they are to be weighed and a receipt known as Takpatti is prepared in duplicate and a copy is given to the customer, (iii) the potatoes kept in cold storage should be lifted by the customer upto the 30th September, (iv) if the goods are not lifted before the 30th September, then the partnership firm has a right to sell the potatoes without giving any notice to the customer, (v) the customer will be liable to pay additional rent for the period for which the potatoes remained with the firm beyond 30th September, (vi) before lifting the goods, rent due should be completely paid off, (vii) for lifting the goods, the customer must give four days notice, and there are certain other conditions which are not relevant to decide the present petition. ( 7. ) THE non-petitioner further has stated in his examination before the court that he has received the goods under the letters Ex. P/2, P/3 and P/4. But, these letters are not under the signature of the petitioner, but they are under the signatures of Nemi Chand Jain. The complaint further says that 347 bags of potatoes have been misappropriated even though much more than 347 bags of potatoes were kept with M/s. Neelam Cold Storage, Bhind. ( 8. ) IN the cross-examination, the complainant has admitted that after the petitioner became the partner, he has not kept any goods in the cold storage. Further, he had to admit that none of the Takpatties is under the signature of the petitioner Ashok Kumar Doshi. He has also admitted his signature on the reservation bonds (Ex. D/1, D/2, D/3 and D/4 ). He has also further admitted that according to condition No. 5 of the bond, he has not lifted the goods before the 30th September. The complainant has examined one more witness Prakash Chand (P. W. I ). He has also admitted his signature on the reservation bonds (Ex. D/1, D/2, D/3 and D/4 ). He has also further admitted that according to condition No. 5 of the bond, he has not lifted the goods before the 30th September. The complainant has examined one more witness Prakash Chand (P. W. I ). He has stated that he deposited Rs. 10,000 with the petitioner on behalf of the complainant in 3 or 4 instalments. But, curiously enough, he did not ask for the receipt from the petitioner when he paid the amount on behalf of the complainant. As to other transactions, regarding payment of money, Prakash Chand (P. W. 1) had to admit that for every deposit of money with the petitioner, he got a receipt. Further, he had also to admit that there is no entry anywhere either in his record or elsewhere about the alleged payment in instalments. Relying on this, it was submitted that the allegation that Rs. 10,000 were paid to the petitioner through Prakash Chand (P. W. 1) is absolutely false. ( 9. ) AS to the quarrel, the non-petitioner has produced Chakrapan (C. W. 2) as his witness. Chakrapan has stated that he saw a quarrel between the complainant and the accused petitioner. But, the incident of giving shoe- beating to the complainant is missing from the statement of Chakrapan. However, taking into consideration the whole evidence produced before the court and the documents, the trial Court framed a charge under sections 407, 323 and 506 of the Indian Penal Code against the petitioner. Aggrieved by the order, the petitioner has moved this Court for quashing the said proceedings. ( 10. ) THE first submission made by the learned counsel on behalf of the petitioner is that it is purely a matter of civil nature and just to pressurise the petitioner, the non-petitioner has given a colour to it to make it a criminal proceeding. Therefore, the non-petitioner should have filed a civil case and not a criminal complaint and in fact, a civil suit is pending between the parties. An incident may give rise to a civil liability or a criminal liability. Only because the incident has given rise to a civil liability, the remedy under criminal law should not be allowed to proceed will not be the correct proposition of law. An incident may give rise to a civil liability or a criminal liability. Only because the incident has given rise to a civil liability, the remedy under criminal law should not be allowed to proceed will not be the correct proposition of law. It is the choice of the party, whether he should proceed on the basis of criminal liability or on the basis of civil liability arising out of the incident which has taken place between the parties. Therefore, in my opinion, the submission of the learned counsel that as a civil suit is pending between the parties, I should quash the proceeding before the criminal Court, I am not in a position to accept. ( 11. ) THE next point I have to consider is that even taking into consideration all the facts, as I have mentioned above, whether the petitioner could be held liable under section 407, 323 and 506 Indian Penal Code. There is no evidence to come to the conclusion that after the petitioner became partner, goods were entrusted to him. Similarly, the evidence produced by the non-petitioner to hold that Rs. 10,000 were paid to the petitioner is also not free from doubt. There is no documentary evidence to substantiate the payment. It will be very difficult to accept the bald statement of Prakash Chand (C. W. 1) in support of it. I may mention here that these observations should not, in any way, come in way while deciding the original civil case regarding the liability of the petitioner towards the non-petitioner. ( 12. ) THE real question is whether the petitioner could be held ciimi-nally liable under section 407 Indian Penal Code if no entrustment is proved after he has become the partner. This point came for consideration before the Supreme Court in Velji v. State of Maharashtra, (1965 M P L J 660 (S C ).) in which it was laid down as under:- "every partner has dominion over firms property. In order to establish entrustment of dominion over property to the accused within the meaning of section 405, Indian Penal Code mere existence of the accuseds dominion over the property is not enough. It must further be shown that his dominion was the result of entrustment. The prosecution must establish that dominion over the assets or particular asset was by special agreement between the parties entrusted to him. It must further be shown that his dominion was the result of entrustment. The prosecution must establish that dominion over the assets or particular asset was by special agreement between the parties entrusted to him. If in the absence of such a special agreement a partner receives the firms money, he cannot be said to have received it in a fiduciary capacity or in other words, he cannot be said to have been entrusted with dominion over partnership properties and he will not be liable to be prosecuted for criminal breach of trust. An owner of property, in whichever way be uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partnership has undefined ownership over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But he does not thereby commit any misappropriation. " ( 13. ) FURTHER, I may refer to Trilok Singh v. Satya Deo, (AIR 1979 S C 850.) in which it was considered whether under the circumstances mentioned above, the parties should be left to litigate their claim before the Civil Court or it will be in the interest of justice to allow the criminal proceedings to continue. The relevant observations from the judgment run thus :- "the dispute between the parties related to the purchase of a truck by the complainant (respondent ). A hire-purchase agreement was entered in to between the respondent and a Finance Corporation accused (appellants ). The loan was payable in monthly instalments. According to the agreement, on default of any one instalment the financier had the right to terminate hire-purchase agreement even without notice and seize the truck. The complainants case was that only a blank form was not signed by him. His further case was that on default of the third instalment the truck was forcibly seized and removed by the appellants. The respondent filed a complaint against the appellants in this connection for certain offences. After enquiry the Magistrate directed the issue of summons. The appellants moved an application under section 482, Criminal Procedure Code. Their case in the nutshell was that the respondents case that they had committed any offence was absolutely false and the proceedings should be quashed. The respondent filed a complaint against the appellants in this connection for certain offences. After enquiry the Magistrate directed the issue of summons. The appellants moved an application under section 482, Criminal Procedure Code. Their case in the nutshell was that the respondents case that they had committed any offence was absolutely false and the proceedings should be quashed. Held: that the proceeding initiated was clearly an abuse of the process of the Court. It was not a case where any process ought to have been directed to be issued against the accused (appellants ). On the well-settled principles of law it was a very suitable case where the criminal pro-ceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Obtaining signature of a person on blank sheet of paper by itself is not an offence of forgery or the like. It becomes an offence when the paper is fabricated into a document of the kind which attracts the relevant provisions of the Penal Code making it an offence or when such a document is used as a genuine document. Even assuming that the appellants either by themselves or in the company of some others went and seized the truck from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondents failure to pay the third monthly instalment in time. It was therefore, a bona fide civil dispute which led to the seizure of the truck. " Therefore, I am of the opinion that the case being purely of civil nature, the continuance of the criminal proceeding will be the abuse of process of law and in the interest of justice, I feel that the proceedings before the Chief judicial Magistrate, Bhind should be quashed when it is clear that the criminal proceedings initiated are to pressurise the petitioner and get the civil claim decided against the petitioner and in favour of the non-petitioner in an indirect way. ( 14. ) THE result, therefore, is that the petition is allowed. The proceedings before the Chief Judicial Magistrate, Bhind are quashed. ( 14. ) THE result, therefore, is that the petition is allowed. The proceedings before the Chief Judicial Magistrate, Bhind are quashed. The observations made by me in this order will not, in any way, stand in the way of the civil Court in deciding the matter pending before it. Petition allowed.