F MANOHARBAL Vs. F VASUDEV

JUDGEMENT

(1.) The petitioner, who is the accused in C.S. No. 1062 of 1981 on the file of the Judicial First Class Magistrate, No. 1, Salem seeks the quashing of a case filed against him by the respondent for offences punishable under sections 406, 409, 420 and 468 read with section 471, Indian Penal Code.

(2.) The petitioner and the respondent are brothers. The dispute relates to the ownership of a concern known as Messrs. Mineral Enterprises, Salem. While the petitioner would say that there was a panchayat and in terms of the decision of the panchayat, he had acquired the exclusive interest of the concern, the respondent would say that he had acquired the exclusive right to the concern. There is a civil suit pending between the parties and the civil Court has granted! an order of injunction in favour of the petitioner herein, The petitioner has also filed some cases against the respondent for offences of forgery and making use of forged documents and those cases are pending. In that state of affairs, the respondent filed a complaint against the petitioner for offences of criminal breach of trust etc. The complaint was sent for enquiry by the Magistrate under section 156 (3), Criminal Procedure Code. After enquiry, the police gave a report stating that the petitioner had not committed any offence and the complaint deserved to be referred on the ground of mistake of law. In view of the report of the police, no further action was taken on that complaint. Subsequently, the respondent filed another complaint against the petitioner in respect of the very same offences complained of in the earlier complaint. This complaint was taken on file and process has been issued to the petitioner. It is at that stage of matters, he has come forward with this petition to quash the proceedings.

(3.) In the first place, it is argued by Mr. Calvin Jacob, learned Counsel for the petitioner that there is overwhelming evidence to show that it is the petitioner, who had become the sole proprietor, of Messrs. Mineral Enterprises and as such, the claim of the respondent that he is the sole proprietor and that remittances made by third parties in favour of the said company, ought not to have been made use of by the petitioner to make certain payments, is not a tenable one. The merits of this contention cannot be gone into, because, it is a matter which can be decided only after the respondent-complainant has adduced evidence in the case. Without the respondent being given an opportunity to prove his case and without his evidence and life evidence of his witnesses being taken into consideration, it cannot be said off-hand that his case is totally false one and that the petitioners claim to sole proprietorship of the concern merits acceptance.