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2009 DIGILAW 238 (JK)

Sardar Singh v. State

2009-05-16

MOHAMMAD YAQOOB MIR

body2009
1. Rounds of litigation in between petitioner and respondent no.4, who are real brothers, relates to the property of the partnership firm run under the name and style of M/s Ujjagar Singh and Sons. Receipt of Rs. 57,960/- by the petitioner as partner of the firm and then non-deposit of the same in the joint account of the firm gave rise to filing of a complaint before the Court of Chief Judicial Magistrate, Jammu, same assigned to the Judicial Magistrate, First Class, (Forest Magistrate), Jammu who in terms of Section 156(3) Cr.P.C has forwarded the same to the Police Station, Bus Stand, Jammu for necessary action under rules. Said Police Station after registering the case noticed that the occurrence pertains to the jurisdiction of Police Station Bahu Fort, Jammu, and referred the matter to the said Police Station which registered the case as FIR No. 13/2002 for commission of offences punishable under Sections 406/420/403/193 RPC. Aggrieved thereof instant petition for quashment of the said proceedings. 2. The important question for determination is as to whether petitioner a partner of the firm while receiving the amount of Rs. 57,960/- for non deposit in the joint account of the firm can be said to have committed the offence of cheating and mis-appropriation. This question is no more required to be answered in view of the judgment delivered by the Co-ordinate Bench in the criminal revision no. 44/2001 in case titled Sardar Singh Vs. Karam Singh, i.e. present petitioner and the respondent no.4. In order to make it more clear it shall be quite relevant as to what was that first round of litigation. 3. Petitioner on behalf of the firm had filed an appeal before the Deputy Commissioner, Sales Tax (Appellate Authority) against the assessment orders where under the firm was asked to pay an amount of Rs. 4,04,100/-. The appeal was allowed. Assessment orders were set aside and refund to the tune of Rs. 3,82,779/- was ordered. Same was received by the petitioner but not accounted for. Respondent Karam Singh filed the complaint before the Court of Judicial Magistrate, First Class, (Sub Registrar) Jammu, where under it was alleged that petitioner was entrusted with the job of maintaining the accounts of the partnership firm and it is in that capacity he had filed the appeal against the assessment orders. Respondent Karam Singh filed the complaint before the Court of Judicial Magistrate, First Class, (Sub Registrar) Jammu, where under it was alleged that petitioner was entrusted with the job of maintaining the accounts of the partnership firm and it is in that capacity he had filed the appeal against the assessment orders. It has also been alleged that the dispute regarding rendition of accounts is pending before the Arbitrator Mr. A.S. Dutta appointed by the Court and the petitioner before the Arbitrator has stated that he had not filed any appeal against the assessment orders. So, petitioner had made a false statement. 4. Learned Magistrate vide its detailed order dated 30th of May 2000 concluded that there are no sufficient grounds for proceeding against the accused on the basis of the allegations made in the complaint. Learned Magistrate in his detailed order has stated that in absence of any finding from the Arbitrator it cannot be said that accused has mis-appropriated any amount belonging to the firm. Noticing the position of the petitioner and respondent no.4 as being partners of the firm, learned Magistrate was not convinced about the prima facie commission of offence under Section 420 and 406 RPC. Said order was challenged by the medium of revision, which came to be disposed off by the Court of Learned Additional Sessions Judge, Jammu. Revision was allowed. Order of the Magistrate was set aside and Magistrate was directed to hear the complaint afresh and pass appropriate orders. This order of learned Additional Sessions Judge, Jammu was challenged before this Court by the medium of Criminal Revision no. 44/2001 and learned Coordinate Bench after referring to various Judgments delivered by the Honble Apex Court concluded that it is only when there is special entrustment of the dominion over the property of the firm by the other partners, only then offence of 406 RPC can be said to have made out. In that context, counsel for the complainant had pleaded that in terms of Clause 7 of the partnership Agreement there is a special contract where under entrustment of the property of the firm to the accused is clear and by not depositing the amount into the account of the firm he has committed the offence of mis-appropriation. In that context, counsel for the complainant had pleaded that in terms of Clause 7 of the partnership Agreement there is a special contract where under entrustment of the property of the firm to the accused is clear and by not depositing the amount into the account of the firm he has committed the offence of mis-appropriation. After quoting Clause 7, learned Co-ordinate Bench opined that the said Clause cannot be construed to be a special contract to receive the amount of refund on behalf of the complainant as appeals were filed by the accused on behalf of the firm and amount of refund was also received by him on behalf of the firm. Both the complainant and the accused possess their undivided share. There was no specific entrustment of the share of the complaint made to the accused. Accused had received the property of the firm and not of the complainant alone. Therefore, no criminal breach of trust is made out. Finally order of the learned Additional Sessions Judge, Jammu was set aside and that of the Magistrate was restored. 5. The first round of the litigation on criminal side has been finally set at rest in terms of the aforesaid judgment of this Court. 6. In the case in hand, the position is similar with only one difference i.e. in the earlier round of litigation, petitioner had received the refund of tax in the capacity of a partner on behalf of the firm and had not deposited it in the joint account of the firm when in the instant case the petitioner has received Rs. 57,960/- on behalf of the firm in the capacity of a partner and has not deposited the same into the joint account. No doubt in terms of order of the Arbitrator dated 17th of November 1993, on the joint request and mutual Agreement of the parties, it was directed that parties are at liberty to draw all outstanding payments from the Government Departments/Corporations but same shall be done under the control and supervision of S. Jagdev Singh, General Secretary Gurudwara. No doubt in terms of order of the Arbitrator dated 17th of November 1993, on the joint request and mutual Agreement of the parties, it was directed that parties are at liberty to draw all outstanding payments from the Government Departments/Corporations but same shall be done under the control and supervision of S. Jagdev Singh, General Secretary Gurudwara. Receipts shall also be signed by him and receipt of money shall be by a person authorized to receive such bills as per the Clause of the Partnership Deed (i.e. obviously the petitioner) with the condition that the parties shall not be entitled to draw any mount from the Banks deposited by way of such payments received from the various Government Departments. 7. Under such circumstances; it is obvious that the petitioner only in the capacity of the partner and authorized in this behalf in terms of Clause 7 of the Partnership Deed has received the amount of Rs. 57,960/-. So the amount received is absolutely joint and un-divided belongs to both the parties. It cannot be said that there is mis-appropriation/ breach of trust or cheating. After all petitioner in the capacity of a partner has to account for it that apart even if there is violation of the order of Arbitrator, there is no finding by the Arbitrator that there has been a misappropriation or breach of trust. 8. I have no reason to opine anything different to the line as adopted by the Learned Co-ordinate Bench supported by the Principles of Law laid down in various judgments as referred to therein. Even otherwise respondent no.4 is also bound by the said judgment. 9. Invocation of the powers under Section 561-A Cr.P.C is exceptionally permissible. Main objective is to avoid abuse of the process of Law and to secure the ends of justice. The case in hand where two brothers are pitted against each other and have resorted to serious revengeful litigative process instead of progressive approach for amicable settlement so as to save the brotherhood and to save the further progeny from the scars which may occur and may hunt their families in future times. Dispute regarding the rendition of accounts of the firm having been referred for settlement to the Arbitrator without waiting for the finalization of the Arbitral proceedings and without taking up the matter before the Arbitrator about the drawal of Rs. Dispute regarding the rendition of accounts of the firm having been referred for settlement to the Arbitrator without waiting for the finalization of the Arbitral proceedings and without taking up the matter before the Arbitrator about the drawal of Rs. 57,960/- respondent Karam Singh has straightway launched the criminal proceedings. The interests of the respondents, no doubt, are safe as he has to get his share out of the partnership firm. 10. It is in rarest cases that proceedings of the case registered before the Police Station are quashed. The case in hand is one amongst them. 11. Keeping in view the total gamut of the case coupled with the judgment of the Co-ordinate Bench above referred based on the identical features as of the case in hand, it can be safely concluded that continuance of proceedings of the case FIR No. 13/2002 of Police Station Bahu Fort Jammu shall amount to abuse of the process of Law. Therefore, the said criminal proceedings are quashed. 12. Petition accordingly succeeds.