MAHINDRA DIPCHAND JAIN Vs. ASHOK SARDARMAL PAREKH

JUDGEMENT

(1.) The petitioner in both the matters is a partner of M/s.Deep Enterprises. Respondent No.1 was also one of the partners of the firm besides one Smt.Asha Suresh Parekh who was the 3rd partner. The petitioner and the Respondent No.1 jointly purchased the property bearing Tikka No.5, CTS No.178 situated at Kharkar Ali, Thane on 10.4.1994. They executed a registered sale deed with the vendor i.e. Respondent No.2 herein. Thereafter the petitioner, Respondent No.1 and Asha Suresh Parekh formed a partnership firm i.e. Deep Enterprises which is in existence even today. Respondent No.2 executed a power of attorney in favour of the petitioner on 2.6.1999. This power of attorney authorised the petitioner to appear for Respondent No.2 before the Thane Municipal Corporation and other government & revenue authorities for development of the property. It appears that despite the sale deed executed in 1995, the property records continued to be in the name of Respondent No.2 and therefore, the power of attorney was executed in favour of the petitioner.

(2.) It appears that Respondent No.1 had a grievance against the petitioner that he had not furnished any details of the amounts received from the proposed flat purchasers and had continued with the construction of the building on the aforesaid property. Civil suit No.137 of 2000 was filed by Respondent NO.1 against the petitioner and Respondent No.2 in the Court of Civil Judge, Senior Division, Thane. An injunction was sought restraining the petitioner from continuing with the construction on the property and from creating third party rights. However, the injunction was refused by the Court. Instead of carrying the litigation further, Respondent No.1 filed a complaint before the Chief Judicial Magistrate, Thane against the petitioner and Respondent No.2 being criminal case No.387 of 2000. The allegations in this complaint are, inter alia, that the petitioner/accused No.1 had in collusion with Respondent No.2 i.e. the accused No.2 developed the aforesaid property in the name of accused No.2 on the basis of the power of attorney which was executed in favour of the petitioner despite the fact that the property was purchased jointly by the petitioner and the respondent No.2 and was to be developed by Deep Enterprises, the partnership firm. It is also alleged "the accused No.1 was entrusted and had a dominion over the property in question and he was supposed to develop the said property for the partnership firm". Process has been issued against the petitioner and Respondent No.2. Hence, the petitioner filed Writ Petition No.1453 of 2000 for quashing the process issued against him.

(3.) Respondent No.1 filed another complaint being criminal case No.366 of 2000 against the petitioner. In this complaint, the main grievance of the complainant i.e. Respondent No.1 is that a shop in the constructed building was sold to one Suresh Devraj Shah who had paid an amount of Rs.6,76,500/- by several cheques to the petitioner and that the receipts were issued by the petitioner in his capacity as partner of M/s.Deep Enterprises. In his complaint, Respondent NO.1 has also stated that an account had been opened in the name of M/s.Deep Enterprises in Janata Sahakari Bank by describing it as a proprietary firm and that the cheques for the aforesaid amount had been deposited in this account. It is further alleged that the amounts deposited were withdrawn by the petitioner without the consent of the other partners and, therefore, the petitioner had committed an offence of criminal breach of trust punishable u/s 406 of the Indian Penal Code.