CHORUS MACHINEERIES AND 4 ORS Vs. DILIP CH BARUAH AND ANR
HIGH COURT OF GAUHATI
Chorus Machineeries And 4 Ors
Dilip Ch Baruah And Anr
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Mir Alfaz Ali, J. -
(1.) By filing these two petitions under Section 482 CrPC registered as Crl. Petition No. 895/2016 and Crl. Petition No. 623/2017 respectively, the petitioners have prayed for quashing the proceedings in the CR case No. 1991C /2016 under section 406/34 IPC and the FIR dated 13-02-2017 as well as the proceeding in PS Case No. 84/2017 under Sections 406/468/420 IPC.
(2.) The brief facts of the case are that the respondent No. 1 was a partner of the petitioner No. 1, M/s Chorus Machineries, a partnership firm which was running its business since 1982. Initially the respondent No. 1 and the petitioner No. 2 & 3 were the partners of the firm (petitioner No. 1). The respondent No. 1 retired from the aforesaid partnership firm w.e.f. 31.03.2011 and a written agreement was executed to that effect, vide agreement dated 12/9/2011. By the said agreement, petitioner No. 4, Anirban Kundu was inducted as a new partner. As per clause 3 of the said agreement, the new partner, respondent No. 4, agreed and undertook to repay the entire capital contribution standing in the account of the retiring partner, i.e., the respondent No. 1, on the date of retirement, from his own source. In Clause 4 of the agreement it was stipulated that the retiring partner (respondent No. 1) assigns and transfer all his shares, rights, title and interest in the permits and licenses held by the firm. It was averred in the complaint, that till 4-1-2016, the complainant was entitled to get a sum of Rs. 2,48,80,547/- from the petitioners and the petitioners were supposed to pay the aforesaid amount on 31-5-2016. But except making payment of Rs. 2 lakhs on 6-4-2016 and 2-6-2016, the petitioners did not pay any amount and misappropriated the entire money. The respondent 1 sent a legal notice informing the detailed of his entitlement, but the petitioners did not respond to the same. It was alleged in the complaint that the petitioners have committed criminal breach of trust from the date of retirement of the respondent No. 1 and as such, he lodged the complaint. On the basis of such complaint, learned Judicial Magistrate took cognizance of offence u/s 406/34 IPC against the petitioners and issued process.
(3.) Aggrieved by the said order of taking cognizance, the petitioners approached this Court by filing application u/s 482 CrPC, for quashing the proceedings, which was registered as Criminal Petition No. 895/2016. The petitioners produced the balance sheet of the firm (petitioner No. 1) for the year ending on 31.03.2011 alongwith the petition u/s 482 CrPC in the Crl. Petition No. 895/16. On receipt the notice of the Criminal Pet. No. 895/2016 and the copy of balance sheet, the respondent No. 1 again lodged an FIR, alleging that though, he retired from the firm (petitioner No. 1) w.e.f. 31.3.2011 and the agreement to that effect was executed on 21.9.2011, the balance sheet for the year ending on 31st March, 2011 was not prepared at the time of executing the retirement agreement. From the balance sheet produced before the court in Crl. Petition No. 895/2016, the respondent No. 1 could come to know, that the 'opening brought forward' capital of the respondent No. 1 was shown as Rs.37,67,925.19 instead of Rs. 43,51,918.31/-. It was stated that by not including the actual amount of capital 'brought forward' in the balance sheet, the petitioners have committed fraud. It was also stated in the FIR, that the petitioners were liable to produce the bank statement in support of the said entry in the balance sheet. On the basis of the said FIR, police registered a case u/s 406/468/420 IPC.;
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