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2007 DIGILAW 2330 (MAD)

T. Mahalingam v. P. Sulochana

2007-07-25

G.RAJASURIA

body2007
Judgment :- This petition has been filed to call for the records pertaining to C.C.No.114 of 2006 on the file of the learned Judicial Magistrate No.I, Tiruchirappalli and quash the same. .2. The background facts which are absolutely necessary and germane for the disposal of this petition would run thus: .The respondent instituted the case in C.C.No.114 of 2006 on the file of the learned Judicial Magistrate No.I, Trichy, as against the petitioner herein, alleging that even though the complainant and the accused happened to be the partners of "Jai Shree Pharmaceuticals" Firm, the accused swindled the entire income of the partnership and thereby committed criminal breach of trust and deprived the complainant of the profits in the business. .3. Being aggrieved by and dissatisfied with, the complaint lodged by the complainant, the accused filed this petition on the following main grounds inter alia thus: .One of the partners namely, Muthuveeran, filed a suit in O.S.No.243 of 1998 for dissolution of partnership, but that suit ended in dismissal for default. Subsequently, there was no whisper at all. Even in the advocates notice dated 01.02.2000, of the complainant Sulochana,, as against the petitioner herein, there is no whisper about the misappropriation of funds etc. Without having recourse to civil action within the limitation period prescribed under the Indian Limitation Act, the complainant had chosen to file the complaint so as to brow beat the petitioner and make him to come to the compromise table and thereby compel him to part with his money. .4. The learned Counsel for the petitioner would canvass his case by placing reliance on the earlier proceedings which ended in his favour so to say, earlier there was a criminal complaint which was dismissed. Subsequently, one other complaint was forwarded to the police under Section 156(3) Cr.P.C to register a case and that after registration of F.I.R, it was referred as mistake of fact. As a third attempt, the present criminal complaint has been lodged purely for the purpose of harassing the accused who is the petitioner herein. He would also draw the attention of this Court to the notice dated 01.02.2000 and argue that the said notice does not refer to any criminal offences having been committed by the accused. 5. As a third attempt, the present criminal complaint has been lodged purely for the purpose of harassing the accused who is the petitioner herein. He would also draw the attention of this Court to the notice dated 01.02.2000 and argue that the said notice does not refer to any criminal offences having been committed by the accused. 5. By way of denying and disputing, challenging and gainsaying, torpedoing and impugning the allegations, the learned Senior Counsel for the respondent herein, who happened to be the complainant, would argue that there is no embargo legally to get processed the grievance of the complainant before the criminal court, when one of the partners defrauded the other partner. There is no broad legal proposition that once civil case is barred by limitation, no criminal complaint could be lodged under the Criminal law, in conformity with the criminal law of limitation as envisaged under Chapter XXXVI of the Code of Criminal Procedure and this particular complaint, obviously under section 406 I.P.C is not barred by limitation. So long as a partner acts within the parameters of his powers as a partner, there is no question of criminal action being pressed into service as against him, but on the other hand if he swindles the income and misappropriate the wealth of the partnership to the detriment of the other partner, certainly criminal law can be invoked and criminal complaint would lie. 6. Now, the case is pending before the learned Magistrate and so far no charge has been framed. The petitioner herein is having a chance of availing the opportunity contemplated under Sections 244 and 245 Cr.P.C. It appears, so far no witness has been examined on the side of the complainant. As per the warrant procedure which is expected to be followed in this case, at first, the complainant should examine himself and the witnesses on his side subject to cross-examination at the option of the accused. Thereafter, the learned Magistrate should proceed to assess as to whether a prima facie case is made out and if at all, he comes to the conclusion that there are grounds to frame charge, then the question of framing charge would arise. At that stage, the accused is having the right to pray for discharge also. 7. Thereafter, the learned Magistrate should proceed to assess as to whether a prima facie case is made out and if at all, he comes to the conclusion that there are grounds to frame charge, then the question of framing charge would arise. At that stage, the accused is having the right to pray for discharge also. 7. The above narration of facts and the arguments put forth on either side, would clearly demonstrate that there are contentious issues which have to be taken into consideration before framing charge by the learned Magistrate. 8. The learned Counsel for the petitioner would also argue that the complainant issued no notice under the Partnership Act calling for accounts, for which the learned Senior Counsel for the respondent would submit that no statutory notice is contemplated either under the civil law or the criminal law. In such a case, the criminal prosecution cannot be quashed merely because there is no pre-litigation notice in either way. .9. The learned Counsel for the petitioner would cite the decision of the Honourable Apex Court in Thelapalli Raghavaiah v. Station House Officer and others reported in 2007(4) SBR 487. An excerpt from it, would run thus: ."18. We have carefully gone through the complaint made by the petitioner, and are convinced that the same primarily makes out a civil dispute relating to measurement, though an attempt has been made to give the same a criminal flavour. The High Court rightly held that the entire reading of the complaint does not disclose any offence except a civil dispute between the parties." 10. The aforesaid decision is not relevant to this case for the reason that the said decision is concerning an agreement and in that case, the Honourable Apex Court clearly held that instead of seeking civil remedy, by giving criminal flavour, the party concerned filed a criminal complaint which was liable to be quashed. However, obviously here the facts are entirely different. 11. The perusal of the complaint would show that the allegation of the complainant is that the accused swindled to a tune of Rs.2,00,00,000/-(Rupees Two Crores only) from the partnership and misappropriated it, for which the learned Counsel for the accused would submit that these are factual issues and there is no iota or shred of evidence to show that the petitioner misappropriated such huge sum from the partnership income. .12. .12. But, one fact is clear that there is no legal dissolution of partnership yet. However, the learned Counsel for the petitioner would submit that from the year 2002, the partnership had become dormant and subsequently, the petitioner started running his own separate business. 13. Once again, to the risk of repetition, without being tautalogous, I would indicate that this is the matter imbued with factual issues to be considered by the learned Magistrate before framing charges. 14. The learned Counsel for the respondent would cite the decision of the Honourable Apex Court in Indian Oil Corporation v. NEPC India Ltd., and others reported in 2006(4) CTC 60. An excerpt from it, would run thus: "11. Coming to the facts of this case, it is no doubt that IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due. It has filed C.S.No.425/1997 in the Madras High Court and O.S.No.3327/1998 in the City Civil Court, Chennai seeking injunctive reliefs to restrain the NEPC India from removing its aircrafts so that it can exercise its right to possess the Aircrafts. It has also filed two more suits for recovery of the amounts due to it for the supplies made, that is CS No.998/1999 against NEPC India (for recovery of Rs.5,28,23,501.90) and C.S.No.11/2000 against Skyline (for recovery of Rs.13,12,76,421.25), in the Madras High Court. IOC has also initiated proceedings for winding up NEPC India and filed a petition seeking initiation of proceedings for contempt for alleged disobedience of the orders of temporary injunction. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But, it does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy. .12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. But, it does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy. .12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the Aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted to another Aircraft (VT-NEH) which had been taken on lease from M/s.Aircraft Financing and Trading BV" and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines), when sent for overhauling to M/s. Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But, these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.] 13. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings." 15. Certainly, this decision would be helpful to the learned Magistrate for arriving at the conclusion as to whether charge could be framed or not. .16. Hence, in this view of the matter, I would like to pass the following direction: The learned Magistrate after giving due opportunity to both the sides and taking into consideration the issues raised in this petition and in the wake of the aforesaid decision of the Honourable Apex Court, shall decide with open mind as to whether charge could be framed or not and accordingly, process the matter as per law. 17. With the above direction, this petition is closed. 17. With the above direction, this petition is closed. Consequently, connected M.P(MD) No.1 of 2006 is closed.