PRAFULLA MATHURADAS SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petition th petitioner ( Orig. Accused no. 1 ) seeks an Order from this Court, quashing and setting aside the proceeding arising from C. R. No.168 of 1984 of Taloja Police Station, Panvel, District Raigad pending before the Judicial Magistrate First Class, Panvel, District Raigad. This petition is filed invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure.

(2.) A few facts which are evident from the application filed by the petitioner are; (a)That on 12-10-1981 the petitioner entered into a partnership with Respondent no. 2 and one Sunil K. Wakade for the purpose of business of partnership firm in the name and style of " M/s Bombay Synthetic Corporation ". Due to some differences the firm was dissolved w. e. f. 31-12-1983. The conditions for dissolution of the firm are recorded in the letter dated 2-1-1984, which is annexed to the petition. (b)It is contended that one of the condition of dissolution was that Respondent no. 2 will take over the business of the said proprietory concern and he will pay the capital amount invested by the partners in the firm within 12 months from the date of dissolution of the firm. According to the petitioner, he had invested an amount of Rs. 1,20,000/- in the business of partnership. He had also advanced the same amount towards Bombay Leather Corporation and Rs. 4000/- towards polyster chemicals. According to the petitioner for these payments Respondent no. 2 executed Demand Promissory Notes and some cheques. Inspite of demand made by the petitioner for the repayment of the loan, respondent no. 2 failed to pay the amount advanced by the petitioner. (c)It is contended that as Respondent no. 2 was unable to pay the loan amount he executed a writing on 20.7.1984 in the presence of Police Inspector, Taloja Police Station to the effect that he was unable to repay the amount, and therefore, he had authorised the petitioner to sell of the machines. The said machineries were lying at Taloja an Respondent no. 2 authorised the petitioner to sell the said machinery for recovery of the amount of Rs. 1,20,000/- which was invested by the petitioner in the business of partnership. According to the petitioner alongwith this authority letter Respondent no. 2 also handedover a bill of machinery and other title deeds. (d)The petitioner further contends that he gave advertisements in the English Newspapers namely Times of India- Bombay and Hindu-Madras, for the sale of the said machinery, pursuant to which one P. Govinda Raju of Vishakhapathnam, Andhra Pradesh approached him by letter dated 26.7.1984, enquiring about the machinery and stated that he was interested in purchasing the same. The petitioner replied to the said letter by giving all the details of machinery. On 19.9.1984 the said P. Govinda Raju came to Bombay and inspected the machinery. The petitioner has contended that for the said inspection Respondent no. 2 gave a note addressed to one Tapan of Durga Engineering to allow the petitioner and the said P. Govinda Raju to see the machines. (e)The petitioner has contended that he informed the said P. Govinda Raju that the machinery belongs to Respondent no. 2 of M/s. Bombay Synthetic Corporation and also gave inspection of the documents authorising him to sell off the machinery. On 20.9.1984 he executed an agreement with the said P. Govinda Raju in respect of the agreement for sale of machinery. On executing the said agreement the said P. Govinda Raju advanced Rs. 10,000/- as earnest money and it was agreed between the parties to pay rest of the amount of Rs. 74,000/- on receiving machinery. The petitioner removed the said machinery and transported it to P. Govinda Raju on 29.9.1984. He also transported one of the machines to M/s. Paper-O-Print of Vapi-Gujrat on 20-10-1984. On receipt of the said machinery the said P. Govinda Raju paid rest of the amount to the petitioner. (f)According to the petitioner on 26.10.1984, Respondent no. 2 lodged a false complaint with Taloja Police Station, Taluka Panvel, stating that the petitioner by misrepresentation has removed the machinery from the factory of Respondent no. 2 and sold it to said P. Govinda Raju. The said offence was recorded vide C. R. No.168 of 1988 of the Taloja Police Station. (g)By way of this petition, the petitioner seeks to quash and set aside the proceeding arising from the said C. R. No.168 of 1984.

(3.) THOUGH served, none represents Respondent no.2.Shri Galeria, the learned APP represents the State of Maharashtra. Shri Galeria contended that the chargesheet does make out a prima facie case against the petitioner. He stated that it is clearly alleged that accused i. e. the Petitioner had mis-represented to the watchman i. e. Witness no. 3 that the said machine was required by the complainant at Calcutta and cheated the watchman. He says that in the face of clear averment to this effect it cannot be said that the complaint does not disclose a prima facie offence against the petitioner.