NARENDRA P SHAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioners are arrayed as accused persons in a case registered by first respondent/Police in respect of the offence punishable under Sections 120B, 421, 406, 420 and 405 of IPC, on the complaint of second respondent. It is a private complaint filed under Section 200 of Cr.P.C. before the jurisdictional Magistrate and referred for investigation.

(2.) The allegation against the petitioners in nutshell is, the complainant, his son Sri.Kalpesh V.Mehta and the petitioners-1 and 2 are the partners of the partnership firm M/s.The Star Aluminum Works vide Re-constituted Deed of Partnership dated 2.9.2009. The partnership business is of 1969 with renewed conditions in the year 1992 and it is 'a partnership at will'. After the complainant's son Kalpesh V.Mehta was inducted to the partnership, the Reconstituted Deed of Partnership was entered into w.e.f. 2.9.2009. On 19.9.2014, there was a dispute in respect of settlement of accounts between the partners and the complainant and his son issued a legal notice dated 7.12.2014 calling upon the accused Nos.1 and 2 for appointment of an Arbitrator in accordance with the covenant of the Reconstituted Deed of Partnership. Accused Nos.1 and 2 replied to the notice but refuted the claim made in the legal notice. The complainant and his son invoked Section 9 of the Arbitration and Conciliation Act, 1986 ('the Act' for short) before the District Court, Mysore. The petition was contested.

(3.) Sri.B.M.Shyamprasad, learned Senior Counsel appearing for the petitioners submits that, the industrial Shed No.C-49 is the individual property of second petitioner purchased out of his own funds. It was allotted to him by K.S.S.I.D.C. in his name in the year1973. From then, he was in possession of the property. On 22.3.1984, property was sold to him under a registered sale deed by the Additional Director of Industries and Commerce (Industrial Estates). He has not executed any conveyance deed in favour of the firm; he has no criminal intention to cheat anybody much less the complainant. Before initiating the PCR proceedings i.e., on 30.1.2015, the complainant had filed a Civil Miscellaneous Petition on 16.1.2015 before the District Court. He invoked Section 9 of the Act and sought for appointment of Receiver to administer the partnership firm's property shown in the schedule of the petition. The property Shed No.C-49 was one of the schedule properties of the petition. The petition was contested and vide order dated 17.3.2015, the petition came to be allowed injuncting the partners/respondent Nos.1 and 2 therein and anybody claiming through them from alienating the properties to any third party. He is trying to set up a criminal case out of a civil dispute, with a malafide intention to harass the petitioners, thereby he is abusing the due process of law. On a reading of the complaint, it does not disclose commission of a cognizable offence; the complaint is cooked up by over twisting the facts and suppressing the material fact. As soon as legal notice was issued by the complainant and his son seeking for dissolution of the firm, the partnership is deemed to have been dissolved. Now the matter is only for rendition of the accounts. The third petitioner is an aged lady and wife of second petitioner. Gift deed was executed in her favour, since second petitioner was unable to manage the property owing to his ill health. The learned Magistrate has not applied his mind while referring the matter for investigation, which is not in accordance with the principles laid down by the Apex Court in Priyanka Srivastava and Another vs- State of U.P. & others, 2015 AIR(SC) 1758 .