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2011 DIGILAW 584 (GAU)

Dinesh Mittal v. Sitaram Mittal & Ors.

2011-07-12

A.K.GOSWAMI

body2011
A.K. Goswami, J.;- Heard Mrs. A. Modi, learned counsel for the petitioner. Also heard Mr. Kekhriengulie, learned counsel appearing for the respondents No.1 to 10. 2. This revision petition has been filed chal­lenging the order dated 12.1.2010, passed by the learned Chief Judicial Magistrate, Dimapur, Nagaland in CR Case No.22/2008, with the following grounds :- "(a) For that, the learned Chief Judicial Mag­istrate failed to consider that forging signature and fabricating documents are serious criminal offences and should not be brushed aside by calling them disputes of civil nature. (b) For that, the learned Chief Judicial Mag­istrate failed to differentiate between an act of forgery and a civil dispute. (c) For that, the learned Chief Judicial Mag­istrate failed to appreciate that the family settle­ment deed was a document to resolve matters concerning land and property of the family as the opening lines of the document demon­strated, and inclusion of the partnership busi­ness in it indicates to the ill intentions of the accused persons. (d) For that, great injury to the ends of jus­tice has been caused by the impugned order. (e) For that, in any view of the matter the order passed by the Court below is not sustain­able." 3. The petitioner, as the complainant, tiled a complaint against his father, elder brother, mother, who are arrayed in the revision peti­tion as respondent Nos. 1,2 & 3, along with the employees of the Partnership Firm, named and styled as M/s Sitaram Mittal. The said complaint case was registered as CR 22/2008 in the Court Chief Judicial Magistrate, Dimapur, Nagaland. It appears that by an or­der dated 03.07.08, summons were issued against the accused persons. Though not in­dicated under what sections of TPC, it would appear that the complaint was filed under Sections 415/420/468/471/120-B/34 1PC. Statement of the complainant was also re­corded under Section 200 of the Code of Criminal Procedure. On 19.09.08, the learned counsel for the complainant submitted that the parties were heading for a compromise to settle the matter amicably and accordingly, prayed for time. 4. Statement of the complainant was also re­corded under Section 200 of the Code of Criminal Procedure. On 19.09.08, the learned counsel for the complainant submitted that the parties were heading for a compromise to settle the matter amicably and accordingly, prayed for time. 4. The allegation in the complaint petition, in brief, was that a partnership deed was en­tered into between the present petitioner, re­spondent No.1 and respondent No.2 w.e.f. 01.04.06 and in terms of the aforesaid part­nership deed, though he was entitled to equal share with the aforesaid two persons, they deprived him of the financial status of the con­cern and inspite of repeated demands he was not provided with the books of accounts, bal­ance sheet and other details etc. and they, with active connivance and criminal conspiracy with the respondents No .4 to 9 have been managing and dealing with aifairs of the Part­nership Firm in an irregular and illegal man­ner, resulting in ruination of the reputation and goodwill of the Partnership Firm and also that business of the complainant had suffered ir­reparable loss and damage. It was also stated that the respondent No. 1 & 2 had inducted another partner i.e. his mother, on the basis of 'false, frivolous and fabricated' documents without the knowledge of the complainant on the basis of forged signature of the complain­ant. It has also been averred that the respon­dents No. 1,2 & 3 had opened certain bank accounts in the name of the respondent No, 1, wherein cheques issued to the Firm are got encashed and amounts are not accounted for in the books of the Firm. In the initial deposition, it is stated that though the terms of the Partnership Firm was to be strictly observed, and at the end of the financial year, shares of the partners in their respective accounts had to be credited, that was not done. Further­more, the partnership deed in question was also changed by forging his signature. 5. On 17.11.08, the trial Court recorded that the complainant was absent for three con­secutive dates of hearing. Simultaneously, an application was also filed on behalf of the accused persons praying for dismissal of the case on the ground of non-appearance of the complainant for three consecutive dates. In the said application, a Family Settlement Deed dated 06.07.07, registered on 06.10.08 was also annexed. Simultaneously, an application was also filed on behalf of the accused persons praying for dismissal of the case on the ground of non-appearance of the complainant for three consecutive dates. In the said application, a Family Settlement Deed dated 06.07.07, registered on 06.10.08 was also annexed. By the order dated 12.01.2010, the learned trial Court, taking note of the Part­nership Deed dated 01.04.06 and Family Settlement Deed dated 06.07.07, dismissed the case holding it to be essentially of civil nature. It would appear that, on the prayer of the parties, one more opportunity was granted to the parties to reach an amicable settlement and only after the learned trial Court was no­tified that the settlement could not be arrived at between the parties, the learned trial Court had passed the impugned order dated 12.01.2010. 6. In the revision application, the petitioner has annexed the Family Settlement Deed dated 06.07.07 as Anncxure-5. The learned counsel for the petitioner also submits that there is no dispute with regard to execution of the Family Settlement Deed dated 06.07.07 in which the complainant is also a signatory. The learned counsel for the peti­tioner has submitted that the learned trial Court failed to construe the Family Settlement Deed in the correct perspective inasmuch as the same was a settlement with regard to owner­ship, possession and user of properties men­tioned in the deed and had nothing to do with the partnership business. It is also the con­tention of the learned counsel for the petitioner that the second deed of partnership dated 01.04.06 was made by inducting one more person i.e, the mother of the complainant, by forging his signature to reduce his share hold­ing to 25% from 33.33%. Accordingly, the learned counsel for the petitioner submits that the finding of the learned trial Court that the dispute is essentially a civil dispute is not cor­rect and as such, the order dated 12.01.2010 is liable to be set aside and quashed. 7. Mr. Kekhriengulie, learned counsel for the respondents, on the other hand, submits that after executing the Family Settlement Deed dated 06.07.07, about which there is no dispute, the complainant, who is the younger son of the respondents No.1 & 3, had filed the complaint petition on 03.07.08, in order to harass the parents to derive undue benefit. 7. Mr. Kekhriengulie, learned counsel for the respondents, on the other hand, submits that after executing the Family Settlement Deed dated 06.07.07, about which there is no dispute, the complainant, who is the younger son of the respondents No.1 & 3, had filed the complaint petition on 03.07.08, in order to harass the parents to derive undue benefit. It is also his contention that the Fam­ily Settlement Deed recognizes that there are four partners of M/s Sitaram Mittal, the part­nership firm in question and, on the face of the aforesaid, permitting the complaint peti­tion to be pursued, would result in manifest injustice and the same would be abuse of the process of Court. It would appear that the dispute, if any raised by the complainant, is purely in the realm of civil dispute and as such, the revision petition is liable to be dismissed, he submits. 8. The genesis of the complaint of the complainant lies in the fact that the respon­dents No. 1 and 2 had inducted the respon­dent No.3 in a separate partnership deed dated 01.04.06, wherein the complainant's signature was forged. But for the aforesaid allega­tion, it would appear to rne that the other statements in the complaint petition, at the most, raise a dispute of civil nature. 9. With regard to the allegation of the forg­ery, it would be appropriate to quote here-inbelow a recital in the Family Settlement Deed:- "And whereas that M/s Sita Ram Mittal at Dimapur, Nagaland is a partnership firm in which Sh. Sita Ram Mittal, Smt. Milkha Devi Mittal, Sh. Mahcsh Mittal and Sh. Dinesh Mittal are equal partners of 25% share each of this firm and all the above mentioned four partners will be allowed to withdraw the equal monthly amount of their shares and final account will be settled at the end of March of every year." 10. In fact, the Family Settlement Deed has also been relied upon by the learned coun­sel for the petitioner to show that the said deed was with regard to ownership, possession and user of the properties mentioned in the deed and, therefore, the complainant was not aware of the inclusion of the recitals relating to the partnership firm in the deed of settlement and the same has also been done surreptitiously. It is also submitted that the complainant/peti­tioner did not have a copy of the said deed of family settlement. It is also submitted that the complainant/peti­tioner did not have a copy of the said deed of family settlement. On the face of the recitals appearing in the deed of family settlement, as re-produced hereinabove, lam unable to sub­scribe to the submission of the learned coun­sel for the petitioner and the said recitals would, at least, prima facie, disclose that the complainant was a party to the partnership deed in question. 11. In view of the aforesaid discussions, 1 do not find any merit in this revision applica­tion and, accordingly, the same is dismissed. 12. The LCR be sent back.