Viren Natwarlal Shah Vs. Khursid Ahmed Jalil Ahmed and anr. - Court Judgment

V.S. Kotwal, J.

1. A complaint under sections 420 and 406 of the Indian Penal Code came to be filed respondent herein the Court of the Metropolitan Magistrate, 11th Court, Kurla, Bombay being the subject matter of Case No. 1168-N of 1980 which have been now renumbered as 163/S/81. A challenge to the maintainability of the said complaint is made in this proceeding filed under section 482 of the Criminal Procedure Code on behalf of the petitioner accused.

2. The gravamen of the allegations as levelled in the complaint are to the effect that some time in January 1979 the accused contacted the complainant and made a representation that he is prepared to extend the benefit of his experience in the marketing and such as he would like to work with him as partner in the Screen printing business. He also assured that he would act to the minimum benefit of the partnership. It is on the basis of placing reliance on this representation that according to the complainant, the partnership agreement came into existence between complainant, the accused and one Zafer Madani. As per the agreement the complaint was to provide the finance, Zafar Madani to look after the production side in the factory and the petitioner-accused to look after the marketing side and to be incharge of the accounts. The said three partners had equal share in the profit and loss. In pursuance of the said agreement the business of the firm actually commenced from January 15, 1979. The complainant claims to have invested Rs. 41,209/- in the said business. The other partner Zafar however, left Bombay after the one month and therefore, in addition the complaint took over the responsibility of looking after the production side.

3. It is then alleged that without the complainant's knowledge the petitioner opened an account in the Bank National Deparis, Kalbadevi Branch, Bomaby, in the name of Beauty print which was the proprietory concern of the petitioner independent of the partnership firm and he also represented to the bankers in his capacity as the propriety of the said private concern. According to the complainant, he was unaware of these developments though he had a lurking suspicion about the irregularities in respect of the monetary transaction, he made inquires and then learnt that an account has been opened by the petitioner-accused in the name of Beauty Print as his proprietory concern and not as a partnership firm and in which account several amount presumably from the partnership funds have been deposited.

4. The complainant thereafter alleged that on verification of the accounts, some of which are in the hand of the accused, as also on inspection of vouchers, bills etc. it transpired to him that the petitioner accused had misappropriated a large amount to the tune of Rs. 23311-83 Ps. That is how the charge under section 406 of the Indian Penal Code is alleged to have been committed.

5. As regards the charge under section 420 of the Indian Penal Code, it is alleged that the accused made a false representation as stated earlier at the inception and thereby induced him to enter into the partnership business and to invest large amounts which ultimately were utilised by the accused for the benefit of his proprietory concern.

6. This complaint was lodge in August 1980. A notice was issued to the accused and thereafter process was issued on both on the counts against the accused by the learned Magistrate. The petitioner now moves this Court under the inherent powers for quashing the proceedings.

7. Shri Shrikant Bhat, the learned Counsel for the practitioner, strenuously submits that even on a plain reading of the complaint, no criminal offence has been made out. He further submits that the complaint is a vague as possible. According to him, the issues of process under section 420 of the Indian Penal Code is thoroughly unsustainable for oblivious reasons. The learned Counsel also submits that his silent had lodged two cases against the petitioner which were much prior in point of time over the tenancy rights and other counterblast this false case has been initiated. It was also suggested that on the basis of the ratio of Velji's case he being the partner, he cannot be held liable for misappropriation of committing breach of trust in respect of the partnership funds. Shri Vilas Kamat, the learned Counsel for the respondents complainant, however, submits that a prima facie case has been made out and it has been permissible for this Court to quash the proceedings under the inherent powers as according to him it is absolutely necessary to give an opportunity to the complainant to ventilate his grievance and to unfold the necessary evidence in support of the charge. The learned Public Prosecutor for the State has, however, no comments to offer.

8. I have already indicated the nature of allegations that is reflected in the complaint. At least a few apparently flow out of the same in clear terms. The first is that partnership agreement was entered into. The complainant then invested a large amount. Thereafter the partnership firm started functioning. The accused was incharge of the accounts. The accused opened an account in the Bank in the name of his deposited certain amounts there which really should have been for the benefit of the firm. The last item emerges in the complaint is that on inspections of the accounts, vouchers and bills the complainant was satisfied an amount of Rs. 23,000/ and odd has been mis-appropriated and utilised for the personal gain by the petitioner causing wrongful loss to the complainant.

9. In the face of these features, it is difficult to direct quashing of the proceeding without giving an opportunity to the complainant to unfold the necessary evidence in support of the charge. The contentions raised by Shri Bhat, the learned Counsel, which are detailed herein above, really speaking cannot be considered at the threshold, though all that can be legitimately considered at least at the stage of complainant's evidence is over, at which time the picture would be more clear. Those contentions also would include the main grievance that in really no partnership was ever formed nor any partnership deed was executed and, therefore, the entire story is a false one. The truthfulness or falsity of the complainant's case cannot be judged at this stage obviously because here in inadequate material to uphold the validity of defence contentions which is obviously because the complaint is yet to be cross-examined and secondly because it would amount to pre-judge the issue by disbelieving all the statements in the complaints at this stage itself. I am afraid such a course may not be permissible when the Court is called upon to exercise its inherent powers. It is not as if that the complaint is such that even on cursory and plain reading thereof no criminal offence has been made out or that it is purely a civil dispute. The nature of allegations, in the minimum, do justify giving an opportunity to the complainant to lead evidence and in any event that cannot be short-circuited at this stage. As regards the contention based on the ratio of Velji's case about the partner being not liable for dealing with partnership funds, the same is left open, more so, when that also can be legitimately agitated only after the picture is more clear through the evidence and the cross-examination of the complaint. As regards the allegations that no criminal offence of cheating has been committed, it may not be proper to express any opinion since the learned Magistrate is to deal with the matter. However, the said submission canvassed by Shri Bhat will have to be seriously considered by the learned trial Magistrate and cannot be summarily rejected.

10. The Scheme of the Code of Criminal Procedure in cases which are triable under warrant procedure clearly indicates that the accused can ask for discharge at any stage of the proceeding and need not wait till all the evidence before charge is led. If the petitioner feels that such a stage has reached after the cross-examination of the complaint, he would be free to move that Court in that behalf, in which event the trial Court would consider that contention on its own merits. Any way no case has been made out for quashing the proceedings. Since the matter is being set back, it is not proper to express any opinion on merits of the case wither way so that the learned Magistrate's discretion would remain unfettered. The petition is, therefore, being disposed only on the short ground especially in view of the limitation of this Court under section 482 of the Criminal Procedure Code.

11. Shri Bhat the learned Counsel for the applicant, submits that the case has been filed in August 1980 and until now on progress has been effected. The anxiety is well justified. Shri Kamat, the learned Counsel for respondent No. 1, has no objection to expedite the trial. The learned trial Magistrate, therefore, should expedite the hearing of this case as possible.

12. The rule is discharged.