IRA JUNEJA Vs. STATE

JUDGEMENT

(1.) Through this petition under Article 226 of the Constitution of India read with section 482 Cr.P.C petitioners seek quashing of FIR No. 308/2001 under section 406,420,120B, IPC, P.S. Ashok Vihar, Delhi.

(2.) Briefly stated facts leading to this petition are that on 26.2.97 a partnership agreement was entered into between the petitioner Smt. Ira Juneja and respondent No.2, Ajay Fotedar to carry on the business of manufacturing and sale/ export/ import of leather goods or garments under the name & style of M/s Samsaur Impex. The petitioner already had some export orders worth Rs.6 lac for export of leather goods to USA. Her initial contribution to the partnership was in the form of some machinery valuing about Rs. 48,000.00. Financial contribution mainly came from the side of respondent No.2, Ajay Fotedar, the other partner of the firm. The two partners were to share profit and losses equally. It appears that partnership business could not run smoothly. In October 1999, respondent No.2, Ajay Fotedar, one of the partners made a complaint to the Crime Branch but no action was taken thereon. Then in May 2001 he made another complaint to the Commissioner of Police. In the said complaint it was alleged that complainant respondent No. 2, Ajay Fotedar, had invested sum of Rs. 5,50,000.00 from his own sources and also took a loan of Rs.1,67,000.00 from the Bank of Maharashtra for investment in the said partnership business. The books of accounts were kept by Sh. R.C.Juneja, husband of petitioner No.1. It is alleged in the said complaint that petitioner No.1 has started a sole proprietorship concern under the name and style of M/s Samsaur Impex and opened a account in the Karnataka Bank Limited, Connaught Place and in that account there has been a turn over of more than Rs.50 lakhs. According to the complainant, this amount reflects the price of the goods sold which were actually manufactured by the partnership concern M/s Samsaur Impex and were exported. The complainant alleged that this amounts to breach of trust and misappropriation of the partnership money. This is further substantiated from the fact that the petitioners have been showing partnership in loss whereas the proprietorship concern of petitioner No.1 namely M/s Samsaur Impex had huge turn over of Rs.50 lac in the same year even though it had no establishment worth the name. It was further alleged that a Bank account No. 9137 in Punjab National Bank was opened at I.G Airport in the name of partnership M/s Samsaur Impex and the duty draw back permissible under the rules was to be remitted to the said account but the petitioners induced/ misguided the complainant in signing a letter addressed to the Bank intimating that the firm has stopped business and requesting the Bank to close the account. As a matter of fact the firm was not closed. According to the complainant the remittance obtained from the import of goods manufactured by the partnership firm should have been credited in the partnership account. Instead these funds have been diverted to the proprietorship account of the petitioner No.1. This was done in pursuance of criminal conspiracy between the petitioners with a view to defraud and cheat the complainant and to misappropriate the funds by diverting the sale proceeds of the partnership goods to the sole proprietorship accounts of the petitioner No.1. On the basis of this complaint, a case under section 420-406-120B IPC was registered vide FIR No. 308/2001 dated 22.5.2001 at P.S. Ashok Vihar.

(3.) Petitioners have filed this petition for quashing of the said FIR mainly on the ground that the dispute is basically of civil nature which can be resolved by rendition of accounts for which purpose the complainant has already filed a civil suit being No. 2864/98 in the High Court. Clause 9 of the partnership deed which provides for rendering true and correct account of the profit earned by any partner in any transaction of the firm or from the use of the property or the name of firm, reads as under:-