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2003 DIGILAW 2035 (MAD)

A. S. Raghunathan v. T. Sampathkumar

2003-12-11

V.KANAGARAJ

body2003
Judgment :- The above criminal original petition has been filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to C.C.No.87 of 2003 arising out of a private complaint filed by the respondent herein against the petitioners on the file of the Court of Judicial Magistrate, Tiruchengode and quash the same. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the petitioners are respectively A.1 and A.3 to A.5 in the private complaint filed by the respondent herein before the Court of Judicial Magistrate, Tiruchengode for the offences punishable under Sections 406,409,420 and 477-A r/w.34 and 109 IPC. The said complaint having been taken on file by the Court below in C.C.No.87 of 2003 on its file, is pending trial. At this stage, the petitioners have come forward to file the above criminal original petition. 3. In the complaint, the respondent/complainant has alleged that he carried on the business in partnership with the accused under the name and style of Sri Sakthi Mills, which is a textile mill and that till March, 1997, the said firm made profits; that from the year 1990 to 1995, the fourth accused was the Managing Director and from 1995 to 1996 March, the complainant was the Managing Director of the said firm and thereafter the first accused was working as the Managing Director of the said firm; that as per the Partnership Deed, the complainant, the first accused and the fourth accused have the authority to manage the affairs of the firm as Managing Director; that the said firm had current account facility with State Bank of India, Bhavani Branch and the complainant had received his share of profit viz. Rs.2,20,000/= for a period of 22 months at the rate of Rs.10,000/= per month; that A.1 also received Rs.2,20,000/= for the same period at the rate of Rs.10,000/= per month and A.2 to A.5 also received a total sum of Rs.2,20,000/= according to their shares and the remaining profits had been held as reserve for meeting the maintenance, the cost of expansion and the working capital requirements. 4. 4. The complainant has further alleged that the accused from 24.11.1997 onwards have not managed the said firm properly and have misappropriated a sum of Rs.15 lakhs and an attempt was made to sell the machineries installed in the mill, changing the name of the firm as Maniraja Textiles and Anjaneya Textiles to cheat and defraud him; that an offence of criminal breach of trust as well as an offence of criminal misappropriation were committed by the accused thereby causing wrongful loss to the complainant to the tune of Rs.55 lakhs; that there was a mediation for settlement of the claim in the presence of mediators and on its failure, he gave a complaint on 2.11.1999 to the Superintendent of Police, Namakkal, which was endorsed to the Superintendent of Police, Tiruchengode; that the accused were directed to appear for enquiry on 11.11.1999 and on 13.11.1999 and the complainant as well as the accused appeared before the S.P., Namakkal and an enquiry was conducted and on its failure, a case in Cr.No.1155 of 1999 by Komarapalayam Police was registered for an offence punishable under Section 420 IPC, which was later referred as 'civil in nature'. 5. Thereupon, the respondent/complainant filed a petition under Section 173(8) Cr.P.C. before the Judicial Magistrate, Sankari to order re-investigation into his complaint or in the alternative, take the complaint on file wherein the said Court directed the Inspector, Crime Branch, Namakkal to conduct the investigation into the complaint and since the said complaint was also referred as 'civil in nature', the respondent/complainant has filed the present private complaint. 6. 6. The petitioners/accused 1 and 3 to 5 would submit that the learned Magistrate has gravely erred in taking the case on file without appreciating that the allegations in the complaint relate to a civil dispute between the partners in a partnership business; that the said complaint was filed only to pressurize the petitioners to settle the amounts claimed by the respondent/complainant; that the respondent had already filed a civil suit in O.S.No.1761 of 2002 on the file of the Court of Subordinate Judge, Namakkal against the petitioners for dissolution of partnership firm and for rendition of accounts apart from other reliefs on 30.10.2002 i.e. before the said private complaint was taken on file by the learned Magistrate, Tiruchengode; that the learned Judicial Magistrate gravely erred in taking the case on file after accepting the final report referring the case as civil in nature filed by the Inspector, District Crime Branch, Namakkal; that the learned Judicial Magistrate having accepted the final report of the police relating to the complaint of the respondent against the petitioners which was forwarded u/sec.173(8) Cr.P.C. for re-investigation has no jurisdiction to take up the private complaint on file; that the complaint against the petitioners under Sections 406,420 and 477 IPC will not lie against the partners on a complaint given by one partner against the other partners that too when the partnership is not dissolved and was continuing its business; that the dispute between the partners regarding the sharing of profits and loss of the firm could be determined only in a properly constituted suit and that has been done by the respondent against the petitioners by way of the suit in O.S.No.1761 of 2002 on the file of the Court of Subordinate Judge, Namakkal; that the petitioners cannot be charged of breach of trust, cheating and falsification of accounts until the accounts of the partnership are taken and determined in the suit. On such grounds, the petitioners would pray for the relief extracted supra. 7. During arguments, the learned counsel appearing on behalf of the petitioners would cite the following judgments: 1.A.I.R. (38) 1951 Calcutta 69 (BHUBAN MOHAN DAS vs. SURENDRA MOHAN DAS) 2.A.I.R. 1965 S.C. 1433 (VELJI RAGHAVJI PATEL vs. THE STATE OF MAHARASHTRA) 3.1980 CRI.L.J.1030 (Calcutta) (S.A.Q.HASHMI vs. THE STATE AND ANOTHER) 4.1987 CRI.L.J.1569 (Calcutta) (MAHAL CHAND SIKWAL vs. STATE OF WEST BENGAL AND ANOTHER) 8. In the first judgment cited above, the Full Bench of the Calcutta High Court has held: "A charge under S.406, Penal Code, cannot be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to both of them as partners." 9. In the second judgment cited above, the Honourable Apex Court has held: "An owner of property, in whichever way he 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 partner has undefined ownership along with the other partners 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." 10. In the third judgment cited above, a learned single Judge of the Calcutta High Court, following the judgment of the Honourable Apex Court reported in A.I.R. 1965 S.C. 1433 (cited second supra) has held: "Ordinarily a partner cannot institute a criminal proceeding for criminal breach of trust of partnership property against another partner unless it can be shown that by a special contract, the accused was entrusted with the dominion over the property and in breach of such entrustment he has misappropriated the money". 11. In the fourth judgment cited above, a learned single Judge of the Calcutta High Court has held: "There cannot be any charge of misappropriation against the partner of a partnership firm by the other partner until and unless there has been a proper account of the partnership business on the dissolution of such business and until and unless it is found that any sum is due from one partner to another. Therefore, where the complaint by a partner under S.403 alleged that the other partner had converted the partnership business into ownership business and had not paid him his share of the partnership business, no offence of misappropriation under S.403 is made out when there is no allegation that the partnership has been dissolved. Accordingly, the criminal proceedings under S.403 must be quashed as an abuse of the process of the Court. Accordingly, the criminal proceedings under S.403 must be quashed as an abuse of the process of the Court. The defence of the accused partner that the partnership had been dissolved and the complainant had been paid all his dues cannot be taken up for consideration at the time of considering as to whether the complaint disclosed any prima facie offence under S.403 or not, which has to be decided on the basis of the allegations in the complaint and the statements made in the initial Ejahar of the complainant and his witnesses." Citing the above judgments, the learned counsel for the petitioners would pray to allow the above criminal original petition. 12. In the written submissions made on the part of the respondent, he would submit that the above quash petition cannot be entertained at all for the sole reason that the petitioners want this Court to appreciate the extra documents that have been filed in the quash petition, which is the duty of the trial Court; that this Court has time and again held that only in the trial Court, the respondent/complainant would have an opportunity to rebut the materials that would be placed by the accused; that it is the case of the petitioners/accused that the partnership has not been dissolved, however, they themselves would state in the counter filed in the civil suit that the partnership has been dissolved and hence this is a clear case of appreciation of fact viz. whether the partnership has been dissolved or not and therefore, when such a factual dispute is there, the petitioners are not entitled to file the quash petition; that it is the clear case of the respondent/complainant that there has been falsification of accounts and forgery, which can be appreciated only by the trial Court after examining the expert and after giving opportunity to both the parties. Further submitting that only the trial Court could appreciate all the facts, the respondent/complainant would pray to dismiss the above criminal original petition. 13. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, this Court is of the view that when the case of the petitioners rests entirely on facts, the propositions held in the above judgments do not suit the facts of the case brought forth by the petitioners in the above criminal original petition. Therefore, this case has to be decided only on those materials which are made available before this Court in the above said manner. 14. It is true that the petitioners skipping the chance of seeking for a discharge before the trial Court placing those materials that they are equipped with, thus giving an opportunity for the respondent/complainant to rebut those points brought forth, have come forward to file the above criminal original petition and since the same has not been done, the respondent is denied of such valuable opportunity. Therefore, it is always desirable for exhausting those remedies which are made available statutorily prior to approaching this Court requesting to invoke its inherent powers conferred under Section 482 of the Code of Criminal Procedure. Further more, even on facts regarding the partnership affair in the context of the materials, it is only desirable for the trial Court to appreciate. But, since the petitioner has avoided seeking remedy invoking the jurisdiction of trial Court conferred under the relevant provisions of the Code, it is patent that the petitioner has not exhausted the ordinary remedies made available under law. Just for the simple reason that in exceptional cases, even if such remedies are not resorted to when urgency warrants under circumstances, this Court is empowered to deal with the same making use of its inherent powers conferred under Section 482 of the Code of Criminal Procedure but it is totally undesirable to impose upon this Court that since it has got powers it has to deal with each and every matter that has to be preliminarily dealt with by the jurisdiction Court and therefore such thinking itself is to be eschewed. In short, neither the petitioners have made out a prima facie case legally before this Court to appreciate nor is it absolutely necessary on the part of this Court to appreciate the facts pleaded by the petitioners and therefore in all respects, the above criminal original petition only becomes liable to be dismissed and is dismissed accordingly. In result, the above criminal original petition does not merit acceptance and it becomes liable only to be dismissed and is dismissed accordingly. Consequently, Crl.M.P.NoS.2804 and 2805 of 2003 are also dismissed.