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DHARAM PAL & Ors. v. DARSHANA DEVI - CRM-5485-M-2005  RD-P&H 4672 (24 July 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc. No. 5485-M of 2005
DATE OF DECISION : August 2, 2006
DHARAM PAL AND ORS. ....... PETITIONERS
DARSHANA DEVI ...... RESPONDENT
PRESENT: Mr. Rajinder Goyal, Advocate, for the petitioners.
Mr. Vinod Gupta, Advocate, for the respondent.
This is a petition under Section 482, Cr.P.C., for quashing of Criminal Complaint bearing No.184/1 of 2002 (Annexure P-2) and order of summoning dated 2.9.2004 (Annexure P-3). The petitioners have raised a short question to the effect that although the petitioners were not partners in the partnership deed, yet they have been implicated in the present complaint on account of their relationship with accused-Madan Lal. Petitioner No.1- Dharam Pal is brother of Madan Lal, while petitioner No.2-Tarun Jindal is son of Madan Lal. Petitioner No.3-Amrit Lal was Accountant in the partnership concern.
The facts of the case are that a partnership concern consisting of Madan Lal, Devinder Kumar and Smt.Darshana Devi (complainant/ respondent) was constituted under partnership deed dated 2.4.1990.
Learned counsel for the petitioners has drawn particular attention of the Crl. Misc. No. 5485-M of 2005 /2/
Court towards Partnership Deed (Annexure P-6) and in particular Clauses 8 and 11, to contend that complainant-Darshana Devi, being the lady partner, had no right to take active interest in the business of the firm. Further, the bank account could be operated only by Madan Lal and Devinder Kumar to the exclusion of the lady partner i.e. Complainant-Darshana Devi. Clauses 8 and 11 are reproduced hereinbelow for reference:- "8. WORKING:
That both the parties except lady partner shall take active interest in the business of the firm.
11. BANK ACCOUNT: That the firm may open account with such a bank or bankers as may be agreed upon between the parties from time to time. Both the parties except lady partner shall be entitled to operate upon the bank account, draw, endorse or assign cheques, hundies or any other negotiable instruments."
Reference has also been made to the complaint instituted by Darshana Devi and in particular paras 3 to 10, wherein it is pleaded that the complainant had faith in Madan Lal, accused No.1 in the complaint, and Devinder Kumar, her son. Devinder Kumar and Madan Lal were duly authorised to operate the bank account and draw, endorse or assign cheques, hundies, etc. Devinder Kumar suffered a heart disease in 1997 and was got treated in various hospitals. Due to the illness of Devinder Kumar, the complainant in the capacity of a partner was not in a position to interfere in the business of the firm and the business was being looked after and the account was being operated by Madan Lal, accused No.1 in the complaint (non-petitioner). It has further been argued that the contents of these paras reflect culpability of accused No.1 i.e. Madan Lal and none else. It has Crl. Misc. No. 5485-M of 2005 /3/
been pointed out that Madan Lal, admittedly, was operating the bank account as Devinder Kumar was not keeping good health. It was Madan Lal, who signed the cheques as Sole Proprietor of the firm and withdrew the amount so as to embezzle the same. In the face of such documentary evidence being only against accused-Madan Lal, it is pleaded on behalf of the petitioners that criminal culpability of the petitioners is not even reflected. Oral averments to the effect that the petitioners were colluding or conspiring with Madan Lal are not sufficient to implicate the petitioners and it would be an abuse of the process of law if the petitioners are harassed on account of such vague allegations.
It has further been argued by the learned counsel for the petitioners that Darshana Devi, complainant, had instituted a civil suit, which is available on the record as Annexure P-4. In the civil suit, dissolution of the firm and rendition of accounts is sought. The factum of embezzlement and the modus operandi have clearly been pleaded in paras 7 and 10 of the plaint. However, there is no allegation against the petitioners in the entire modus reflected in the civil suit although it was a necessary fact to be pleaded. It shows that it was only an afterthought and pressure tactics by way of legal arm twisting that the petitioners have been implicated as accused in the present case. Following portion of the civil suit instituted by the complainant would be relevant for consideration and is reproduced:-
"7. ....... After enquiry from the bank, the plaintiff come to know that Shri Madan Lal defendant no.2 withdrawn the amount illegally from the bank on 1-4-2001 to 31.3.2002 and has mis-appropriated the amount of the firm and committed Crl. Misc. No. 5485-M of 2005 /4/
fraud upon the plaintiff, so a complaint was filed by the complainant against Madan Lal which is pending in the competent court of law. It is also come to the notice of plaintiff that defendant no.2 Madan Lal has stated another commission agency under the name and style of M/s Tarun Trading Company, Commission Agents, Anaj Mandi, Cheeka with the funds of defendant no.1 firm, without the consent and will of the plaintiff."
"10. That as the defendant no.2 Madan Lal has mis- appropriated the funds of defendant no.1 firm and have started another commission agency, with the funds of deft. no.1 firm, without the consent and will of plaintiff, so the said action of defendant nol.2 Madan Lal is direct contravention of clause no.
3,4 & 11 of the terms of partnership, which amounts to breach of confidence. The conduct of defendant no.2 has prejudicially effect the carrying of contractual relationship and business and it is not reasonably practicable for the present plaintiff to carry on the business with the defendants and as such is just and equitable the partnership should be dissolved." Learned counsel for the respondent, while opposing the case of the petitioners, has argued that it was petitioner No.1-Dharam Pal, who had carried the cheque to the bank. It has further been argued that petitioner No.2-Tarun Jindal was beneficiary as the same money withdrawn from the bank had been used to purchase property for Tarun Jindal. With regard to petitioner No.3-Amrit Lal, it has been argued that Amrit Lal, being the Accountant, knew about the accounts and the fact that the partnership was still continuing and, therefore, should have taken some appropriate steps to stop Madan Lal from withdrawing the money from the bank account of partnership concern while showing the concern as a Sole Proprietorship concern.
Crl. Misc. No. 5485-M of 2005 /5/
Learned counsel for the respondent, however, has not been able to point out any physical evidence to establish the culpability of the petitioners in the incident of cheating or forgery by way of any document.
Merely because Dharam Pal was carrying the cheque would not implicate him in the offence of cheating or forgery as the cheque, admittedly, was signed by Madan Lal, non-petitioner. Stamp affixed on the cheque showing the concern as Sole Proprietorship concern, was also handiwork of Madan Lal. Likewise, there is no evidence to show that same money was used to purchase property for Tarun Jindal-petitioner No.2. The cheque had been signed by Madan Lal by fabricating the name of the concern. So far as the case of petitioner No.3 is concerned, i.e. the Accountant, he cannot be proceeded against only on the presumption that he knew about the criminal designs of Madan Lal and, therefore, should have taken appropriate steps.
There is no material to show that the amount had been transferred in the name of Amrit Lal.
Learned counsel for the respondent has further admitted that the grounds pleaded in the civil suit include embezzlement, however, no allegations have been made against the petitioners.
In my considered opinion, considering the facts narrated above, the petitioners cannot be asked to stand trial on the basis of such suppositions and presumptions. There is not even an iota of material available to show culpability of the petitioners. The partnership concern consisted of three partners; namely, Madan Lal, non-petitioner, Darshana Devi, complainant, and Devinder Kumar, son of complainant-Darshana Devi. Devinder Kumar had fallen ill and, thereafter, Madan Lal had the Crl. Misc. No. 5485-M of 2005 /6/
legal authority to operate the bank account. Madan Lal operated the bank account while affixing a seal on the cheque showing it to be a Sole Proprietorship concern. This is what agitated Darshana Devi as the amount had been withdrawn by Madan Lal while Madan Lal had shown himself as the Sole Proprietor. The respondent has not been able to point out from any material that the petitioners had cheated the respondent thereby committing the offence u/s 420, IPC, as defined u/s 415, IPC. There is no material even to indicate forgery by any of the petitioners or use of a forged document, knowing it to be forged.
A reference to the civil suit (plaint) instituted by the respondent shows that none of the petitioners have been named and only Madan Lal, non-petitioner, has been shown as involved in embezzlement. This circumstance assumes importance as the incident involved in the complaint at issue is involved in the civil suit also. The petitioners, therefore, had no role to play in the entire sequence of events. As such, they cannot be allowed to stand rigors of trial. It seems that the petitioners have been implicated with a view to harass them.
In view of the above, the petition is allowed. Complaint (Annexure P-2) qua the petitioners is quashed. It is made clear that nothing stated hereinabove would be construed as an observation on merits of the case as against the non-petitioner i.e. Madan Lal.
August 2, 2006 ( AJAI LAMBA )
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