KISHAN MENGHRAJ GEHI Vs. MENGHRAJ GORDHANDAS GEHI

JUDGEMENT

(1.) This is an application by original accused Nos. 1 and 2 Kishan Menghraj Gehi and Maheshukumar G. Garodia for quashing the process issued against them under section 420 read with section 34 of the Penal Code by the learned trial Magistrate on a complaint filed against them by respondent No. 1 Menghraj Gordhandas Gehi, the father of accused No. 1. The aforesaid complaint is registered as case No. 158/S of 1980 before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Bombay, and process thereon under section 420 read with section 34 of the Penal Code was issued on 31st July, 1980.

(2.) As indicated, respondent No. 1--original complainant is the father of petitioner----accused No. 1. In July, 1966, a partnership deed was executed between the complainant and his son accused No. 1 under the name and style of Messrs. Blue Angel Art Dyes and Dry cleaners. By mutual consent of these two partners, Suresh Moti and Anil, the other sons of the complainant but minors at that time were admitted to the benefits of the aforesaid partnership. The aforesaid partnership was, under Clause 1 of the partnership deed, deemed to have commenced from 1st April, 1966. It was a partnership at will. On 23rd May, 1973, a deed of dissolution was executed in respect of the aforesaid partnership, under which the said partnership was mutually agreed to have been dissolved with effect from 31st March ,1973. In the said deed of dissolution, recitals are clear to the effect that accounts of the said partnership upto 31st March, 1973 have been made and finalised and the parties have received their shares of the capital, profits and other assets in the profit-staring proportion and that the parties have no claim whatsoever against each other or the firm of Messrs. Blue Angel Art dyers and Dry Cleaners. Under Clause 2 of the dissolution deed, it is recited that the accounts of the partnership have been duly made up and completed upto the date of dissolution of the partnership business and all the capital and profits of the partnership business have been duly divided between the parties in the profit-sharing proportion. It was further declared, vide Clause 3, that there were no other debts and liabilities to be paid and whatever debt and liability may become due and payable from the partnership firm shall be borne and paid by the parties in the profit-sharing proportion. It was also further mentioned that income-tax assessments of the firm for assessment years 1971-72, 1972-73 and 1973-74 were pending. It was agreed that whatever tax or any other liability that may be levied thereon shall be borne and paid by the parties in the profit-sharing proportion. Under Clause 6 of the said deed, each of the partners released the other from all proceedings, actions, costs, claims and demands in respect of the partnership but without prejudice to any rights and remedies under the provisions of the dissolution deed itself. This dissolution deed was signed by the complainant as the first partner and by accused No. 1 as the second partner. 2-A. It seems that despite the aforesaid deed of dissolution, some or the other dispute arose between the complainant and accused No. 1 who were, though closely related, not on very friendly terms. However, even these disputes and difference were ultimately settled and the complainant made a categorical declaration in writing in August, 1979 to that effect. In paragraph 8 of the said declaration, the complainant stated and declared that there was at one time a partnership business run under the name and style of Messrs. Blue Angle Art Dyers and Dry Clearners with the complainant, accused No. 1 and the minor sons of the complainant as partners. It is also specifically mentioned in the said paragraph 8 that the partnership deed was executed by the complainant and accused No. 1 on 17th July ,1966 and that on or about 23rd May ,1973, the said partnership was dissolved. It is further categorically mentioned in the same paragraph 8 of the declaration by the complainant that thereafter accused No. 1 continued as to sole proprietor of the said business and as such sole proprietor, he changed the nature of the business and the name under which he was doing the business into the name and style of Modern Traders. Further statement follows in the said paragraph to the effect that the complainant and his sons Suresh, Moti and Anil had nothing to do with the said proprietary business of Modern Traders started by accused No. 1. Paragraphs 10 to 13 of the said declaration are important and may be reproduced here.

(3.) The main crux of the aforesaid declaration by the complainant was reiterated by further declarations made by his other sons viz., Suresh, Moti and Anil, all of whom also executed declarations to that effect. Thus, as at this stage, documentary evidence shows a partnership coming into existence in the year 1966, the said partnership being dissolved in the year 1973, some disputes arising between the complainant, the father and the son accused No. 1 and the settlement of the entire disputes and differences between them some time in the year 1979, corroborated by solemn declarations executed not only by the complainant, the father, but also his other sons Suresh, Moti and Anil. Still further in pursuance of the complainants declaration referred to above, accused No. 1 surrendered, in compliance with Clause 13 of the said declaration, vacant possession of flat No. G, Gohi Mension, third floor, Lady Jamshedji Road, Mahim, Bombay 16 of the complainant. There is no disputed by the complainant in the aforesaid behalf.