Judgment:
(Prayer: This Crl.Rp Is Filed U/S.397 Cr.P.C Praying To Set Aside The Order Dated 30.8.08 Passed By The Addl. District And Sessions Judge, Shimoga In Crl.R.P.No.146/07 And Restore The Order Dated 3.9.07 Passed By The Ii Addl. Civil Judge (Jr.Dn.) and Jmfc., Shimoga In C.C.No.61/01.)
1. This Criminal Revision Petition under Section 397(1) of Cr.P.C. is directed against an order dated 30.08.2008 in Criminal Revision Petition No.146/2007 on the file of Additional District and Sessions Judge at Shimoga.
2. The brief facts which gave rise to this revision petition are as under:
The revision petitioners were accused Nos.1 and 2 and respondent was the complainant before the Magistrate. The Complainant filed a private complaint against the accused Nos.1 and 2 for the offences punishable under Sections 405, 406, 467, 468, 415, 417, 420 r/w Section 34 of IPC before the II Additional Civil Judge, (Junior Division) and JMFC at Shimoga.
The Magistrate referred the complaint to the jurisdictional police station under Section 156(3) of Cr.P.C in PCR No.157/1997. The police after investigation filed B report on the ground that the dispute between the parties is a civil dispute arising out of partnership business. The complainant filed protest petition to B report. As such, Magistrate recorded sworn statement of the complainant and her witnesses. Based on the sworn statement of the complainant and her witnesses, the learned Magistrate satisfied that primafacie case has been made out to constitute an offence under Section 406 and 420 of IPC, which made the Magistrate to take cognizance of the offences under Sections 420, 406 of IPC against both the accused. The accused were summoned before the Court. They were heard before framing of the charges. After hearing the arguments addressed by the counsel for the accused and the public prosecutor, by a considered order dated 03.09.2007, the learned Magistrate discharged both the accused. Aggrieved by the order of discharge of the accused, the complainant preferred Criminal Revision Petition No.146/2007 questioning the legality and correctness of the order of discharge passed by the Magistrate, before the Additional District and Sessions Judge, Shimoga. The learned Sessions Judge upon merits allowed the revision petition and set aside the order of discharge by his order dated 30.08.2008.
3. Questioning the legality and correctness of the order passed by the Sessions Judge, this revision petition is preferred by the revision petitioners/accused.
4. I have heard the learned counsel for the revision petitioner-accused and the learned counsel for the respondent-complainant. Perused the records.
5. It is seen from the complaint filed by the complainant that she was running a hotel business under the name and style of œSri. Arjun Ice Cream and Resaurant? in a leased premises situated at first floor, Nadiq Complex, Sir. M.V.Road, Shimoga. It was started on 23.11.1994 with the financial assistance of the Karnataka State Finance Corporation. She was doing very well in the business. Because of the growth of the business, she decided to take partner in order to run the business on partnership basis. Accused No.1 came forward to become a partner of the complainant to run œSri. Arjuna Ice Cream and Restaurant? and accordingly partnership deed was executed on 16.05.1994 to carry on the business under the name and style œM/s Nagarjuna Ice Cream and Restaurant?. But the K.S.F.C. did not agree to change the name as they had already advanced the loan in the name of œArjun Ice Cream and Restaurant?. As per the partnership deed the complainants share was 25% and that of the accused No.1 75%. Accordingly, they invested the money. Accused No.1 was required to operate the loan account with the express consent of the complainant. In due course of the time, the accused No.1 started his own business without knowledge of the complainant. Therefore, differences arose between the parties. The complainant filed a suit in O.S.No.4/1995 on the file of the Additional Civil Judge, Junior Division, Shimoga, against accused No.1, wherein the Court Commissioner conducted the inventory of the articles belonging to the hotel business. Accused No.1 started his own business under the name œHotel Nagarjuna? at N.T. Road, Shimoga with the active support of his father the accused No.2. Thus, according to the complainant both the accused have committed offence punishable under Sections 405, 406, 467, 468, 415, 417, 420 r/w Section 34 of IPC. She filed a complaint before the Magistrate. The complaint was referred to the police for investigation. The Police filed B report. The complainant filed protest petition. She gave her sworn statement and that of her witness recorded by the Magistrate. Based on the sworn statement, the Magistrate found that primafacie case has been madeout to constitute an offence punishable under Sections 406 and 420 of IPC. The cognizance was taken against accused Nos.1 and 2 for the aforesaid offences. Both of them appeared and addressed their arguments before framing the charge and thereby they came to be discharged by the Magistrate. Learned Sessions Judge found fault with the order passed by the Magistrate discharging both the accused which made him to reverse the order. Therefore, the accused aggrieved by the order passed by the Sessions Judge, preferred this revision petition.
6. Admittedly, it is a civil dispute between the complainant on the one hand and both the accused on the other hand in respect of partnership business. The copy of the partnership deed has been produced along with the complaint duly signed by the complainant and the accused No.1. Clause 26 of the partnership deed speaks that the dispute relating to the affairs of the business shall be referred to arbitration for resolution. However, O.S.No.4/1995 is filed by the plaintiff against accused No.1 in the Court of Civil Judge at Shimoga despite arbitration clause in the partnership deed. In suit, the Commissioner was appointed and he has taken inventory of all the articles that were found in the hotel. When a civil remedy has been provided in the partnership deed itself for resolution of the dispute and the suit is already pending between the parties in connection with the partnership business, it appears to me that the Magistrate was right in discharging both the accused. The Magistrate upon consideration of the entire material placed on record came to the conclusion that there is no primafacie material to frame the charge against the accused persons for the offences under Sections 406 and 420 of IPC. Under such circumstances, there was no reason for the SessionsJudge to interfere with the order passed by the Magistrate based on the material placed on record. Having gone through the entire material placed on record, I am of the considered opinion that the impugned order passed by the Sessions Judge is not sustainable in law. Hence, I pass the following order.
Criminal Revision Petition is allowed. The order dated 30.08.2008 in Criminal Revision Petition No.146/2007 on the file of Additional District and Sessions Judge at Shimoga, is hereby set aside.