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2021 DIGILAW 26 (MP)

Subodh Dwivedi v. State of Madhya Pradesh

2021-01-12

ATUL SREEDHARAN

body2021
ORDER : Atul Sreedharan, J. 1. The applicant is apprehending his arrest in connection with Crime No. 363/2020 registered for offence punishable U/s. 420, of the I.P.C. at Police Station Civil Lines, Chhatarpur. 2. The complainant in this case is one Abhay Singh Bhadoriya. The undisputed facts in this case are that the complainant and the applicant entered into a "Deed of Partnership", at Chhatarpur on 24.03.2010 by which they formed a firm under the name and style of "M/s. Jatashankar Minerals" and the address of the Principal business was at H. No. 274, Ward No. 36, Choubey Colony, Chhatarpur, which is the address of the complainant. Thereafter, the problems started with the execution of a deed of amendment of the partnership firm whereby, the complainant had allegedly gave his consent to remove himself as a partner from the said firm and the induction of two other fresh partners, Shri Shiv Kumar Singh and Shri Giriraj Singh Parmar, both residents of Gwalior. The said amendment to the partnership firm was executed allegedly at Gwalior on 27.03.2016, but attested before the Notary at Chhatarpur on 29.03.2016. The complainant states that the said deed of amendment of the partnership was never executed by him and he continued to remain a partner and that his signatures were fabricated and forged on the said documents. Before that, an affidavit was alleged to have been executed by the complainant on 16.03.2016 again at Gwalior, and the same has been verified by the Notary on 29.03.2016 at Chhatarpur. By the said affidavit, the complainant accepts his retirement from the firm, which according to the complainant, he never executed and that this document is also fabricated. 3. Learned counsel for the applicant has submitted that there is no surreptitiousness in the manner by which the complainant left the partnership firm and that the complainant did so voluntarily without any coercion, malice or misrepresentation. In order to substantiate his claim, learned counsel for the applicant has drawn the attention of this Court to documents filed along with I.A. No. 10109/2020 with this application. He has drawn the attention to page 4 of the Gazette notification, which is a notice to the effect that the complainant has retired from the partnership firm w.e.f. 16.03.2016 and in his place, two others mentioned hereinabove, have been inducted as partners in M/s. Jatashankar Minerals. The said notification is of 05.05.2017. He has drawn the attention to page 4 of the Gazette notification, which is a notice to the effect that the complainant has retired from the partnership firm w.e.f. 16.03.2016 and in his place, two others mentioned hereinabove, have been inducted as partners in M/s. Jatashankar Minerals. The said notification is of 05.05.2017. Another aspect, which the learned counsel for the applicant has argued, is that at the time of arguing the 482 petition for quashment, which was filed by this applicant, which this Court had dismissed on the ground of certain suspicion that arose in the documents filed by the applicant/petitioner with regard to the manner in which the complainant had signed those documents. This Court observed that in the undisputed signatures, the complainant did not underline below his signature, but in the disputed documents, being the affidavit of 16.03.2016 and the amendment to the partnership effected on 29.03.2016, the complainant has signed under his name which was unusual. This Court had even referred the original partnership deed executed between the applicant and the complainant in the year 2010, which again did not bear a line under the signature of the complainant. That was one of the grounds on which this Court had held that there was grave suspicion with regard to commission of the offence and that the F.I.R. could not be quashed. 4. Learned counsel for the applicant has filed additional documents and the attention of this Court has been drawn to several documents stated to have been executed by the complainant before various authorities of the State like the District Mineral Officer dated 05.06.2020, the Collector, Distt. Chhatarpur dated 19.11.2018 to the Station House Officer, Police Station Civil Lines, Chhatarpur dated 11.06.2020 in which the complainant has underlined his signature. In other words, learned counsel for the applicant submits that there is an inconsistency with regard to the signature of the complainant and sometimes he drew a line under his sign and sometimes he didn't. The document that has been pointed out by the learned counsel for the applicant has not been disputed by the learned counsel for the Objector. 5. 5. Learned counsel for the applicant further states that the affidavit and the deed of amendment to the partnership firm was executed in Gwalior on 16.03.2016 and 27.03.2016, respectively, as the incoming partners were both hailing from Gwalior and therefore, they had got it executed from there itself. However, there is no satisfactory reply as to what was the need for it, as the said documents could have been prepared, executed and verified at Chhatarpur itself. In this case, what is to be seen is that though the affidavit has been executed and signed by the complainant allegedly on 16.03.2016, but the same is verified at Chhatarpur on 29.03.2016. Learned counsel for the applicant has submitted that the incoming partners drafted the affidavit on 16.03.2016 and sent the said document to the complainant, who signed the same on 29.03.2016 and verified the same at Chhatarpur on 29.03.2016. Likewise, the deed of amendment to the partnership firm was also drawn at Chhatarpur on 27.03.2016 and signed by the complainant at Chhatarpur and also verified by him before the Notary on 29.03.2016. The ouster of the complainant from the firm however, even as per the case of the applicant on the basis of the various documents referred to hereinabove was from 16.03.2016, which was even before the complainant allegedly signed those documents. 6. Per contra, learned counsel for the Objector has refuted the genuineness of these documents and has stated that they are fabricated ones. Learned counsel for the applicant has further stated that the applicant has been bonafide in his actions throughout and that he promptly informed the authorities with regard to the change of the partners in the constitution of the partnership firm. The documents like the Gazette notification, letters addressed by the applicant to the Assistant Registrar of Firms and Societies and the application addressed to the Collector/Mineral Officer intimating about the change in the constitution of the partnership firm, after the change and induction of new partners. However, upon perusal of the said documents, this Court finds that the notification in the Gazette is dated 05.05.2017, the intimation to the Assistant Registrar, Firms & Societies was of 17.05.2017 and the intimation to the Collector was of 03.11.2017. Thus, it is clear that the intimation to the authorities has been done after a delay of almost one year. However, upon perusal of the said documents, this Court finds that the notification in the Gazette is dated 05.05.2017, the intimation to the Assistant Registrar, Firms & Societies was of 17.05.2017 and the intimation to the Collector was of 03.11.2017. Thus, it is clear that the intimation to the authorities has been done after a delay of almost one year. Learned counsel for the applicant submits that merely because there was a delay in intimation of the change of the constitution of the partnership firm to the relevant authorities, cannot be deemed as an act of criminality. However, there is no specific reply forthcoming as to why the delay was caused by the applicant herein. 7. Learned counsel for the complainant has strongly objected to the anticipatory bail being granted to the applicant. He has submitted that the applicant was ousted from the partnership by subterfuge and that, even today, the transit permit for carrying the minerals shows that the lessee is M/s. Jatashankar Minerals, through Shri Abhay Singh Bhadoriya, i.e. the complainant herein and in order to establish the same, he has drawn the attention of this Court to Annexure O/1, which is a copy of the transit permit issued as recently as on 26.05.2020, which reflects the name of the complainant along with that of the firm as the lessee of the mine from where the mining activities are done. As regards the delay in registration of the F.I.R., learned counsel for the Objector has submitted that he is a resident of Chhatarpur and the mine that has been leased out to M/s. Jatashankar Minerals is at Luvkush Nagar, which though within the district of Chhatarpur, is more than 100 Kms. away from Chhatarpur city. This argument is factually disputed by the learned counsel for the applicant, who says that the distance of Luvkush Nagar is only 22 Kms. from Chhatarpur. 8. Be that, as it may, what is relevant here is that the E-transit pass is being issued in the name of the complainant as recently as in May, 2020. As regards the same, learned counsel for the applicant submits that he cannot be held responsible for the delay on the part of the State for not having made necessary amendments in their records. As regards the same, learned counsel for the applicant submits that he cannot be held responsible for the delay on the part of the State for not having made necessary amendments in their records. In support of his contention, learned counsel for the applicant has drawn the attention of this Court to the document contained at page 9 filed along with I.A. No. 10109/2020, which is a Form-V under the Indian Partnership Act, which shows the name and address of the incoming partners and the name of the complainant is shown in the second column as the outgoing partner. The same is w.e.f. 16.03.2016, but however, the said document is prepared belatedly on 17.04.2017, for which, no plausible explanation has been offered. 9. Learned counsel for the Objector further while trying to clarify the reason for the delay has stated that he belatedly came to know about the fraud that was played upon him as he was told by the applicant that all the mining activities have been ceased. It is only when the complainant comes to know in the year 2018 that he has been ousted from the partnership firm by fraud and the same is reflected in the document filed along with the objection of the Objector, contained in I.A. No. 11167/2020, which is an application by the complainant to the Collector, Distt. Chhatarpur dated 19.11.2018, which reflects the earliest point of time that the complainant came to know about the commission of the alleged offence. Learned counsel for the Objector submits that he made representations to others earlier, as is reflected by the documents of the applicant himself and it is only upon not getting any relief that the complainant has registered the F.I.R. against the applicant herein. Learned counsel for the Objector has also submitted that the investigation would reveal that though the F.I.R. was registered for an offence U/s. 420 of the I.P.C., the cognate offences U/s. 467 and 468 of I.P.C. have also been committed by the applicant, requiring his custodial interrogation. In this regard, the judgment of the Supreme Court passed in the case of C.B.I. Vs. Anil Sharma reported in (1997) 7 SCC 187 , has been registered, where the Supreme Court held that in such white-collared offences, custodial interrogation may be more beneficial. 10. In this regard, the judgment of the Supreme Court passed in the case of C.B.I. Vs. Anil Sharma reported in (1997) 7 SCC 187 , has been registered, where the Supreme Court held that in such white-collared offences, custodial interrogation may be more beneficial. 10. However, looking at the facts and circumstances of the case, as has been discussed hereinabove, specifically that the counsel for the Objector/complainant has completely denied execution of the affidavit on the amendment to the partnership firm and has stated that the said documents are forged, manipulated and fabricated and they do not bear the signatures of the complainant. Under the circumstances, this Court is of the opinion that it is not a fit case to grant anticipatory bail to the applicant. However, at this juncture, learned counsel for the applicant submits that a direction may be given to the Police to abide strictly by the law laid by the Supreme Court in the case Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 273 . The law laid down in Arnesh Kumar's case broadly gives guidelines to the Police as to in which cases they may arrest an accused or may not. It does not lay down as indelible proposition of law that in all the offences where less than 7 years of imprisonment is provided for, there can be no arrest. Neither is it a precedent that the Courts are bound to allow an application filed U/s. 438 of Cr.P.C., in view of the law laid down in Arnesh Kumar's case. Under the circumstances, the request putforth by the learned counsel for the applicant is rejected. The discretion vests with the Police whether to arrest or not and this Court refrains itself from directing either one way or the other. In view of aforesaid discussion, the application filed by the applicant under Section 438 of the Cr.P.C. stands dismissed.