IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 1341 of 2015 ….. Trilok Singh ... …Petitioner -V e r s u s- 1. The State of Jharkhand.
2. Bhupinder Singh … ...Opp. Parties CORAM: - HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE RAJESH KUMAR … For the Petitioner : - M/s Indrajeet Sinha & Arpan Mishra, Advs. For the Opp. Parties :- Mr. Vikash Kishore, Adv. …. 02/10.01.2018 The instant petition seeking leave to appeal against the judgment of acquittal dated 18.02.2015 rendered by the Learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 96/2007 whereunder the sole accused/opposite party no. 2 has been acquitted of the charges under Section 420 of the Indian Penal Code is suffering from a delay of 69 days. However, we have heard learned counsel for the petitioner at length on the grounds of challenge and gone through the materials on record and also perused the impugned judgment. Briefly stated the prosecution case lodged by the complainant being Sakchi P. S. Case No. 198 of 2006 on 19.10.2006 (G. R. No. 2402 of 2006) instituted under Section 409/406/467/468/471 of the Indian Penal Code was found not to be true after investigation by the police which submitted the final form bearing no. 226/06 dated 30.11.2006. However, cognizance was taken on protest petition filed by the petitioner/complainant after holding inquiry under Section 202 of the Criminal Procedure Code in terms of Section 420/409/467/468/471 of the Indian Penal Code against the accused. The complainant alleged that he along with accused and others were partner of M/s Jhanda Singh and Company engaged in business of transportation and other jobs with Tisco Limited. The original partnership is dated 02.01.2002, which was later on reconstituted on 01.04.2002. In the said reconstituted deed of partnership Bhupinder Singh and other three partner which included the wife of Bhupinder Singh, also incorporated a condition that bank account no. OD/621 at Central Bank of India, Sakchi Branch, Jamshedpur in the name of the firm shall be operated jointly or severely by any one of the partners of the firm. The complainant alleged that the accused illegally withdrew Rs. 12,24,547/- between 01.08.2004 to 10.12.2004. According to reconstituted partnership deed dated 01.04.2002, the bank account should be operated not singly but jointly, but the accused obtained the signature of the complainant and his wife on the account-opening application, operating card and specimen card etc. and submitted it to the bank. The complainant came to learn in July, 2004 that the bank had not been informed about the reconstitution of the partnership and that the accused continued to withdraw money under the single signature. On 30.07.2004 a letter was sent by the complainant and Manju Bhamra and other partners to the Branch Manager of the Central Bank of India, Sakchi Branch to change the signatory authority. It was received by the bank on 31.07.2004. However, out of sum of Rs. 21,51,782.25P deposited in the said account, more than Rs. 12,24,547/- was withdrawn by the accused between 01.08.2004 and 10.12.2004. The complainant came to know about it from the statement received from the bank. The complainant also averred that Title Partition Suit No. 62/06 and Title Partition Suit No. 77/06 were filed by the accused against the complainant for partition of property at Sakchi and Circuit House Area (East). Prior to that the complainant had filed a Title Suit bearing no. 28/06 dated 01.05.2006 for a decree for specific performance of contract dated 26.01.2005 against the accused and also prayed for a decree for execution of a proper sale deed transferring half share of the defendants in the property, for which they have received a sum of Rs. Ten lacs by way of advance through cheque dated 10.02.2005. According to the complainant, these essential facts were suppressed by the investigating officer. The accused has connived with each other and in furtherance of their common intention cheated the complainant by forging documents. The learned Trial Court proceeded to frame the charges u/s 420 of the Indian Penal Code on 02.04.2009 against the sole accused, who pleaded not guilty on being explained. After closure of the prosecution evidence, the statement under Section 313 (i) (b) of the Cr. P. C was also recorded, which was a case of total denial of the occurrence and of false implication. Complainant had examined, seven witnesses namely CW1 Manju Bhamra, CW2 Krishna Pado, CW3 Rajendra Ram, CW4 Mihir Ranjan Guha, CW5 Trilok Singh, CW6 Tribhuwan Nath Sharma, CW7 Paramveer Singh. Apart from that he had produced following documentary evidence:- 1 Ext. A & A/1 Letter dt. 11.11.06 from Manager, Central Bank of India to S. I. 2 Ext. A/2& 7 Letter dt. 2.8.04 from Central Bank of India to Bhupinder Singh as regards change of mandate. 3 Ext. B & 8 Letter dt. 10.11.04 from Central Bank of India to Bhupinder Singh and Trilok Singh regarding rearrangement of O. D. Limit. 4 Ext. 1 Letter dt. 7.11.06 from Chief Manager to Sub-Inspector 5 Ext. 2 Letter dt. 30.7.04 from Trilok Singh, Manju Bhamra to Branch Manager, Central Bank of India for change of signatory authority 6 Ext. 3 Application 7 Ext. 4 Sanction advice of Central Bank of India 8 Ext. 5 Signature of Chief Manager on letter dt. 30.7. 04 from Trilok Singh 9 Ext. 6 Letter dt. 26.10.06 from K. K. Singh (Chief Manager) to Dy, S. P. 10 Ext. 9 Statement of account no. OD/621 11 Ext. 10 Letter from Bhupinder Singh received on 01.08.04 12 Ext. 3, 3/1, These are the signatures of witnesses in the seizure list. 3/2 and Ext. 4, 4/1 & 4/2 Learned Trial Court proceeded to analyze the material evidence on record in order to come to a finding, whether the ingredients of the Section 420 of the Indian Penal Code are made out beyond the shadow of the reasonable doubts. The ingredients of Section 420 requires: (i) Dishonest deception by the accused. (ii) Dishonest deception that has induced a person to deliver any property or to make, alter or destroy the whole or part of valuable security or to consent that any person should retain any property. It was found that out of seven witnesses CW-1(wife of the complainant) and CW-5 (complainant) turned up for cross-examination after charge. CW-7 was also examined after charge. However, CW-2, CW-3, CW-4, CW-6 did not offer themselves for cross-examination and their evidence cannot be read as evidence during the trial. The allegation related to deception for withdrawal of Rs. 12,24,547/- by the accused from the alleged joint account of Jhanda Singh and Company even after agreed change of mode of operation from either or survivor to jointly during period from 01.08.2004 to 10.12.2004 was not established, Ext. 2 on which the complainant had profusely relied upon is the letter dated 30.07.2014 addressed to the Branch Manager, Central Bank of India for change of signatory authority. Though the complainant in his cross- examination stated that reconstituted partnership deed was received by the bank along with letter and that he has attached the same with his application, however, Ext- 2 did not reveal any mention of such reconstituted deed nor any enclsoure of such deed was shown in the body of the letter. Ext.-10 is the other document relied upon by the complainant, which is a notice of resignation by the accused alleged to be received by the complainant on 01.08.2004. The complainant had alleged that since it was a Partnership at Will and the accused had given notice for resignation, withdrawal made thereafter were deceitful. These documents were also disbelieved by the learned Trial Court as the witnesses have failed to inspire confidence. It did not contain any date below the signature of the accused nor it bears receipt from all partners. Learned Trial Court also found inherent contradiction in the statements of the complainant as partnership deed was reconstituted on 13.12.2014 whereby the accused and his wife allegedly retired from the partnership. Learned Trial Court also doubted the oral testimony of the complainant and his wife in absence of any document /written evidence in terms of Section 91 of the Evidence Act as the complainant had failed to produce proof of any of the partnership deed though as per his own admission, all the original partners were alive and available. The element of dishonest deception is one of the ingredient of Section 420 of the Indian Penal code, which was not found to be established. The learned Trial Court was of the view that since the accused had continued as partner of the said firm, he could not be alleged to have deceived the complainant by withdrawing part of sum from the said account in accordance with the previously existing mandate of partnership, until and unless proportionate shares of the parties of the said firm are ascertained and accounts as regards all dealings and transactions were apportioned. The complainant had failed to produce any evidence in that regard. As per the statement of CW-I wife of the complainant, in the subsequent family settlement dated 11.12.2004, there was no mention of the money withdrawn by the accused belonging to the share of her husband i.e. the complainant. Learned Trial Court also analyzed the evidence in relation to the 2 nd ingredient of the offence under Section 420 of the Indian Penal Code as to whether accused had induced complainant to deliver property or to do or omit to do something causing damage. It came to a conscious finding that in the absence of any rendition of accounts of the firm, proportionate share of the partners and their respective liabilities had not been ascertained to allege that one partner had illegally withdrawn the amount from the kitty causing wrongful loss to the party like the complainant. The complainant had also failed to produce other material witness, who remained privy to all their transactions. In the wake of the aforesaid analysis of all the material evidence on record, learned Trial Court had reason to doubt the entire prosecution case. Accordingly, accused was acquitted from all the charges. Learned counsel for the petitioner has, however, relied upon the Exts-2 and 10 which have been copiously discussed in the impugned judgment. The learned trial Court disbelieved the case of the prosecution on those two documents. As the material discussed herein-above shows, the very allegation of cheating in such as a case of partnership firm against one of the partners would invariably depend upon apportionment/ ascertainment of liability and shares of the individual partners, if the firm is reconstituted. Before that the allegation of cheating or criminal misappropriation would hardly be made out and that too on the basis of oral testimony of one or the other partners in absence of any material document/proof. We find that complainant and the accused are engaged in civil litigation also in respect of partnership. They are also related. In the totality of the facts and circumstances and the discussion made hereinabove, we do not find any grounds for the petitioner to seek leave to appeal to challenge the impugned judgment. Accordingly, we find no reason to condone the delay in preferring the instant petition. Therefore, prayer for condonation of the delay made in I. A. No. 3895 of 2015 is, accordingly, dismissed. Consequently, the instant petition stands dismissed. (Aparesh Kumar Singh, J.) (Rajesh Kumar, J.) Kamlesh/