RAVINDRA SONUSING PATIL Vs. RAJENDRA PANDIT PATIL

JUDGEMENT

(1.) THIS is a writ petition filed under S. 482 of the Code of Criminal Procedure and Art. 226 of the Constitution of India for quashing of a private complaint, which is Criminal Case No. 2/s of 1989 pending before the Metropolitan Magistrate's 12th Court, Bandra at Bombay. The two petitioners before me are the accused Nos. 1 and 2 before the criminal Court and the respondent No. 2 is the original accused No. 3. The original complainant is the respondent No. 1 to this petition.

(2.) THE complaint filed before the learned Magistrate alleged offences under Ss. 420 and 406, I. P. C. Though there is a reference to S. 120 B, I. P. C. in paragraphs 20 and 21 of the original complaint, we are not immediately concerned with the conspiracy charge because the learned Magistrate has issued process only under Ss. 406 and 420 read with 34, I. P. C.

(3.) THE brief facts relating to the filing of the complaint may be set out as follows : A partnership firm by the name of KTR Enterprises was formed on 30-1-1984 which came to be registered on 31-3-1984. The firm consisted of four partners viz. , the complainant and the three accused. The partnership firm, admittedly, was doing the business as dealers of Bajaj Auto Ltd. , at Jalgaon. According to the averments in the complaint, the complainant is a permanent resident of Bombay. The complainant, incidentally, is related to the accused insofar as she is the sister-in-law of the accused No. 1. It appears that pursuant to certain disputes having arisen, which, according to the complainant are because of the fact that she is a resident of Bombay and the accused were managing the partnership business at Jalgaon, the firm came to be dissolved by a notice dated 26-10-1987 to which, there is a reply on 17-11-1987. Thereafter, the complainant filed a suit for dissolution and accounts before the Jalgaon Court on 7-12-1987 which is Suit No. 229 of 1987. Subsequently, on 16-1-1988, Bajaj Auto Ltd. , terminated the dealership of the firm in question. The complainant alleges that somewhere around the end of February 1988, the accused met her at Bombay and discussed about a proposal of resolving the disputes completely. They represented to her that a new partnership firm in the name and style of Rajendra Enterprises will be constituted between the three of them and the complainant's son Devendra for running the dealership business of Bajaj Auto Ltd. , in Jalgaon District and that the partners will have equal shares. They further proposed that the premises of the dissolved firm should be utilised by the new firm of Rajendra Enterprises which included the show-room, workshop, spare shop godown and office etc. , together with the furniture and fixtures as also the stock-in-trade lying at the premises of the old firm, all of which constitute property of considerable value. It was further represented to the complainant that an amount of Rs. 60,000/- will be credited by the partners in the account of Devendra in the new firm of Rajendra Enterprises forthwith, and furthermore, the complainant was told that Devendra shall be the Managing partner of the new firm and that the bank operations of the new firm shall be controlled under the signatures of the accused No. 2 and Devendra. These representations were incorporated in an affidavit-cum-declaration in which all is mentioned in detail. On the basis of these terms, the complainant had agreed to give a consent letter to the three accused. Accordingly, it is the case of the complainant, that the executed a letter of the same date which she signed and handed over to the three accused which authorised the new firm of Rajendra Enterprises, Jalgaon to utilise the show-room, store-room, spare part room, the office, furniture, workshop, machinery and all the sundry instruments, compound, open space, etc. , for running the business of the dealership till such time that dealership is terminated. It was further mentioned that this authority was final and irrevocable. According to the complainant, the three accused did not comply with any of the terms that are set out in the affidavit-cum-declaration, whereas, on the other hand, they have used the consent letter on which the complainant was induced to sign for purposes of converting the use of all the assets and property of the old firm KTR Enterprises to that of the new firm Rajendra Enterprises. The complainant states that the payments that were indicated were not made to her. She has further pointed out that the condition viz. , that Devendra would be made a partner, that he would be the Managing Partner and furthermore, that he was to be paid Rs. 2000/- per month as indicated in the affidavit-cum-declaration were not complied with. She has stated that in spite of letters from her, the accused did not honour the commitments. The complainant further states that on or about 1/06/1988, an announcement appeared in the local daily newspaper Lokmat published at Jalgaon that M/s. Bajaj Auto Ltd. , has appointed Rajendra Enterprises as their authorised dealers for Jalgaon District. The complainant further avers that the three accused have in fact started the business as dealers of Bajaj Auto Ltd. , at Jalgaon in the name of M/s. Rajendra Enterprises by using the property and assets of the previous firm thereby converting them into the assets of the new firm totally leaving out the complainant and Devendra. The complainant has also referred to a letter dated 20-5-1988 addressed by the accused to the R. T. O. , Jalgaon, for obtaining a trade certificate in which accused No. 1 is alleged to have falsely claimed that the new firm of Rajendra Enterprises was formed in which the very partners of the dissolved firm KTR Enterprises are partners and that the assets and liabilities of KTR Enterprises have been transferred to Rajendra Enterprises. It is the case of the complainant, that the statements contained in this letter dated 20-5-1988 are patently false but we are not immediately concerned with this particular letter. The complainant, however, relies on the letter for purpose of establishing that from the conduct of the accused, the trial Court was justified in drawing a conclusion that the representations made by them were false and dishonest. The complainant has further contended that on the basis of the aforesaid facts, an offence of cheating and an offence of criminal breach of trust are disclosed against the three accused. The learned Magistrate, as pointed out earlier, had issued process against all the three accused for offences under S. 420 read with S. 34, I. P. C. , and it is against this order that the petition has been directed.