Decided on October 28,1983

RAM AVTAR Respondents


H.L. Anand, J. - (1.)-
(2.)THIS petition under Section 482 of the Code of Criminal Procedure arises out a complaint filed by Ram Avtar, respondent No. I, against his father, petitioner No. I, his brother petitioner No. 2, and a cousin, petitioner No. 3, on the allegations that the petitioners were party to a conspiracy to defraud the complainant to commit acts of misappropriation and in furtherance of the conspiracy, the petitioners committed offences of fraud, misappropriation, forgery and using forged documents in the Civil Court and certain authorities thereby committing offences under Section 406, 420,467, 568 and 471 read with Section 120-B of Indian Penal Code . The complaint, which is rather clumsily drawn, is an apparent sequal to disputes between Ram Avtar, on the one hand, and his father and brother, on the other, and has its genesis in the family partnership in the name and style of M,s. Silco, of which the complainant was a partner. The partnership apparently holds valuable premises, apart from business and it appears that on account of disputes in the family, the complainant was excluded from the benefit of the partnership sometimes in 1977. The deed of partnership apparently contained an arbitration clause and in December, 1977, the complainant invoked Section 20 of the Arbitration Act for appointment of an Arbitrator in the dispute. In the course of proceedings on petitioner No. I and 2 set up adeed of dissolution that Application, which are still pending/purporting to have been signed by the complainant by way of defence and raised the plea that by virtue of the dissolution, the arbitration clause was no more available to the complainant. The complaint is based on allegations that the deed of dissolution as indeed, certain other documents, including a receipt and form No. 12, filed by the petitioners I and 2 in the Civil Court and in the Income- tax Department respectively, purporting to have been signed by the complainant were, in fact, never signed by the complainant and were forged documents. The complainant further alleged that the complainant had been deprived of the benefit of the partnership and large amounts, to which the complainant would have been entitled, has been misappropriated by petitioners I and 2. The complainant also made a vague allegation that petitioner No, 3 was party to the conspiracy but does not attribute any particular role to the said petitioner. The complainant had also impleaded two officers of the Grindlays Bank. In support of the complaint, the complainant however, contended himself by summoning the records of the civil proceedings and the Income-tax department. He also examined one Lalit Mohan Bansal who merely stated that he used to see the complainant in the Connaught Place shop with the name and style of Silco, alongwith his father, doing the business of cloth. The complainant examined himself as P.W. 5 and reiterated the allegations made by him in the complaint. In his statement the complainant stated that the dissolution deed and the other documents were not signed by him and were forged and that these had been filed by the petitioners Nos. 1 and 2 in the Civil Court and in the Income-tax Office. The statement further makes a vague allegation that the petitioners conspired to defraud and misappropriate the complainant's share of profit of the firm, The statement also repeat the allegation in the complaint that petitioner No. 3 and the officials of the Bank "helped" petitioners 1 and 2 in cheating the complainant and in the disposal of partnership funds. On the basis of this material, the trial court rightly declined to summon the officials of the bank but held that there was sufficient grounds summoning petitioners 1 to 3 under Sections 406, 420, 467, 468, 471 read with Section 120-B of the Indian Penal Code. The complaint, as against the Bank officials, was, however, dismissed.
The petitioners seek the quashing up of the complaint and of the order summoning the.petitioners on the ground that the proceedings are an abuse of the process of the court in that the complainant has brought a purely civil dispute to a criminal court and, on the material on record, none of the petitioners could have been summoned for any of the olfences alleged against them and that in any event, the complaint, as regards forgery and use of forged documents, would be hit by the provisions of Section 195 of the Code of Criminal Procedure in that, these documents having been admittedly filed in the civil court and in the income-tax department, the learned Magistrate could not have taken cognizance of the offences of forgery and using forged documents except on a complaint by the court or the officers concerned. On behalf of petitioner No. 3, who was admittedly never a partner of the firm nor otherwise concerned with its business, it is urged that there is no material on the record which may justify the continuance of the complaint against him.

I have heard learned counsel for the parties and it appears to me that the proceedings constitute an abuse of the process of the criminal court, particularly, having regard to the fact that the dispute between the parties with regard to the partnership, as indeed. the factum of its dissolution is pending in a competent civil court and are as such liable to be quashed and none of the petitioners could have been legitimately summoned on the material before the court even though the complainant prima facie appears to have a grievance that he has been unfairly treated by the other members of the family and would be entitled to proper accounts and his share of the assets of the partnership on ren-lition of accounts.

In the first instance, neither the allegations in the complaint nor those made in the statement of the complaint bring out with any precision, much less establish prima facie, any allegation of fraud. The complaint, as well as the statement, make vague allegations that the complainant was 'defrauded" of the benefit of the partnership or of his share of profit in the partnership without in any manner making the essential ingredients of the offence of fraud. The sum total of the allegations is that the petitioner has been improperly excluded from the benefits of the partnership but that is not enough to constitute the offence of fraud. The allegations of fraud are, therefore, untenable on the existing material and none of the petitioners could have been summoned on that court.

Secondly, with regard to the charge of misappropriation there could be no misappropriation with regard to the partnership assets except where there was specific entrustment to a partner or a special agreement in that behalf. AIR 1965 S.C. 1433 : AIR 1962 S.C 1821 1976 G.L.R. 661. No such special agreement or specific entrustment has been alleged either in the complaint or in the supporting statement of the complainant. There are vague allegations that the complainant's share of the profit of the partnership has been "misappropriated" by the other partners but that by itself, would not be enough for aprocess being issued against an alleged partner in relation to partnership property. There is no allegation that any part of the partnership funds were specifically entrusted to the petitioners 1 and 2 for specific purpose or that there was a special entrustment by an agreement or otherwise relation to the dealings with the partnership assets by of the petitioners, who were partners.

Thirdly, as for the charges of forgery and use of forged documents in civil proceedings and in the income-tax department, there is the bare statement of the complainant that he had not signed any of these documents and that these had been forged by petitioners I and 2, with the assistance" of petitioner No. 3. The statement of the complainant no doubt constitutes material, apart from its evidentiary value, but that by itself would not be enough to justify a process being issued on a charge of forgery or using forged documents, particularly, in the context of admitted pendency of proceedings in a civil court, where in defence to the complainant's plea for appointment of an arbitrator, the dissolution deed, purporting to bear the signature of complainant, has been set up and part of the evidence on the question of its genuineness has already been recorded. If these documents are eventually found by the Civil Court to be forged, appropriate action could be taken by the complainant in accordance with law by the complainant in relation to the acts of forgery and by the court in relation to the act of using the forged documents as genuine in civil proceedings. Same would be the position with regard to the documents said to have been forged and filed in the Income-tax Department. A complaint to the criminal court, while the proceedings are pending in a civil court, would be premature and even otherwise improper, particularly, in the disputes involving the partnership business.

Fourthly, the documents, consisting of the deed of dissolution, the receipt and form 12, having admittedly been filed in the civil court and the Income-tax Department in relation to proceedings pending before the Court and the said authority, the complaint to that extent would also be hit by Section 195 of the Code of Criminal Procedure, even though that bar would not hit the complaint, in so far as it deals with the charge of forgery, as distinct from the charge of using forged documents as genuine. It is true that if a complaint is well-founded on the charge of forgery and the charge must be tried in a criminal court, this court may be reluctant to quash the charge with regard to the use of forged documents even though such a charge may be hit by Section 195 because the principal charge is the charge of forgery, and the offence under Section 471 Indian Penal Code . is only a "Sequitur" to the other offences. If the complainant succeeds in proving the offence of forgery it would be academic to consider if cognizance could not be taken of the offence under Section 471 Indian Penal Code . because it is hardly likely that a separate sentence would be imposed for that offence. 1974 S.C.C. 628. Ordinarily, therefore, in spite of the bar of Section 195, I may not be inclined to quash the charge of forgery as well as the charge of use of forged documents in any proceedings, but for the fact that material on the record, at present, does not justify even the charge of forgery and the continuance of such proceedings is even otherwise improper having regard to civil proceedings which have been pending between the parties since before the filing of the complaint. This aspect assumes a slightly different dimension because of the close relationship between the parties, even though-the complainant may perhaps have a genuine grievance that his father and brother, acting in complicity, or otherwise, have illegally excluded the complainant from the benefits of the partnership or the complainant was deprived of his share of its assets.

Lastly, there is no material against petitioner No. 3, either in the complaint or in the statement of the complainant, besides a vague averment that the offences have been committed by the other petitioners "with the help of petitioner No. 3". Such an allegation would hardly justify initiation of criminal proceedings in the absence of the role attributed to an accused being spelt out, besides being supported bysome material, particularly, where petitioner No. 3 is admittedly not a partner and has no monetary interest in the business or the assets of the partnership.

(3.)FOR all these reasons, it would be an abuse of the process of a criminal court to allow the proceedings on the complaint to continue against any of the petitioners. The proceedings of complaint pending in the court of Shri Jaswant Singh, Metropolitan Magistrate, New Delhi are according quashed. The bail bonds, if any, filed by the petitioner stand discharged.

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