- (1.) THIS application has been filed for quashing the order dated 11.10.2004 passed by Judicial Magistrate, Jamshedpur in C/1 Case No. 615 of 2005 whereby and whereunder he took cognizance of the offence under section 420 of the IPC. The petitioner further prayed for quashing the entire criminal proceeding in connection with aforesaid case.
(2.) THE brief facts of the case is that the petitioner is the natural son of complainant. However, the petitioner was adopted by one Swaran Singh Hanspal and from the date of adoption, he lives with his adopted father. It is further alleged that M/s. Sansar Enterprises is a proprietorship firm of accused -petitioner. However, the petitioner sustained loss and therefore he approached the complainant for financial help. It is stated that the complainant has paid Rs. 41,000/ - to the accused and in lieu of that the accused -petitioner executed a saledeed in favour of complainant with respect of machinery of M/s. Sansar Enterprises on 20.11.1985. It is stated that in spite of the sale, the complainant allowed the accused -petitioner to do the business of aforesaid firm as the petitioner is his natural son. It is further alleged that thereafter on the request of complainant, petitioner and witness no. 2 (younger son of complainant) had agreed to be partner of the said firm and accordingly a partnership deed executed between them on 16.8.1989 and after execution of the partnership deed, some more amounts invested by the complainant and witness no. 2 in the said firm as per the stipulation made in the partnership deed. It is alleged that the accused with dishonest intention and for his wrongful gain is not complying the terms and conditions as mentioned in the partnership deed and always mislead the complainant regarding the business and accounts of the firm. It is further alleged that when the complainant asked the petitioner to render the accounts regarding the profit of the firm since 1989 he did not furnish the same. It is further alleged that accused -petitioner had opened the bank account as proprietor of M/s. Sansar Enterprises, though as per deed of partnership he ought to have opened the bank account in the name of partnership firm. It is also alleged that with dishonest intention the accused -petitioner had taken so many signatures of the complainant and witness no. 2 on plain papers and he was using the same at different places against the interest of complainant and witness no. 2. It is further stated that on 30.8.2003 a legal notice was given to the accused -petitioner. It is further stated that a reply of the said notice received by the complainant, which reveals the dishonest intention of the accused petitioner of grabbing the said firm. Accordingly, it is alleged that the accused petitioner had committed an offence under section 406 and 420 of the IPC. It is submitted by learned counsel for the petitioner that from perusal of complaint petition it is clear that dispute between the parties is with regard to the non compliance of terms and conditions of partnership deed and also with regard to the ownership of M/s. Sansar Enterprises, which is civil in nature. It is further submitted that a civil suit has been filed by the complaint and the same is still pending. Accordingly it is submitted that if the civil suit has been filed for the same relief, the present complaint case ought not have been entertained by the learned court below. Accordingly, it is submitted that the impugned order is an abuse of the process of court; hence the same cannot be sustained.
(3.) LEARNED counsel appearing for the O.P. No. 2 has not disputed that a civil suit has been filed by the complainant with regard to the ownership of M/s. Sansar Enterprises and the same is still pending. However, he submits that since the accused -petitioner cheated the complainant and witness no. 2 , therefore, the court below rightly took cognizance against the petitioner under section 420 of the IPC.;