VISHANJEE DUNGARMAL FUTNANI Vs. KRISHNA MOHANLAL FUTNANI

JUDGEMENT

(1.) This writ petition under section 482, Criminal Procedure Code, and article 227 of the Constitution of India has been filed for quashing Criminal Case No. 48/W of 1984, filed by respondent No. 1-complainant in the Court of the Additional Chief Metropolitan Magistrate, 14th Court, Girgaum, Bombay.

(2.) The case of the petitioners-accused is that petitioner No. 1- accused No. 1 is a businessman carrying on business at Calcutta and that he ordinarily resides at Calcutta. Petitioner No. 2- accused No. 2 is his wife. Petitioners Nos. 3, 5 and 7-accused Nos. 3, 5 and 7 are sons and petitioners Nos. 4, 6 and 8-accused Nos. 4, 6 and 8 are daughters-in-law of petitioners No. 1 and 2. Petitioners Nos. 1 to 4 are residing at Calcutta. Petitioners Nos. 5 and 6 are residing at Hyderabad and petitioners Nos. 7 and 8 are residing at Bangalore. Petitioner No. 1 and Mohanlal, the husband of respondent No. 1-complainant, are sons of one Dungarmal Bachamal Futnani. Dungarmal Futnani owned considerable property and had his business at Calcutta, Bombay and Madras. Formerly, Dungarmal Futnani and one Srikrishendas were doing business in partnership, but later on Srikrishendas became separated and Dungarmal carried on the business on his own. His proprietary concern was known as Murlimal Santram and Co. There were three private limited companies known as (1) D.B. Futnani and sons (Bombay) Private Ltd., (2) Murlimal Santram and Co. (Bombay) Private Ltd. and (3) Murlimal Santram and Co. (Calcutta) Private Ltd. All the accused were directors in all the three limited companies along with the complainant and her husband and their sons, holding particular number of shares. It is alleged that all the shareholders being members of the same family, there was a family arrangement by and between the father-in-law of the complainant and his wife and his two sons and their families in 1969. Under the family arrangement, accused No. 1 was allowed to collect the rents from the property at Calcutta, formerly known as "Old Hindustan Building" and now known as "futnani Chambers", situated at 6A, S.N. Banerji road, Calcutta- 700 013. Accused No. 1 was also allowed to reside on the terrace floor of the said premises. It is alleged that as per the arrangement, accused No. 1 was to collect the rent from the said property on behalf of Murlimal Santram and Co. and deposit the same in the bank in the account of the said company. Murlimal Santram and Co. was not doing any other business. Accused No. 1 was then to deposit the various amounts belonging to Murlimal Santram Co., which, as stated earlier, was a proprietary concern of Dungarmal Futnani, and put the same in D.B. Futnani and sons (Bombay) Private Ltd., Murlimal Santram and Co. (Bombay) Private Ltd. and Murlimal Santram and Co. (Calcutta) Private Ltd. The business of these companies was trading in steel pipes and the deposits of Murlimal Santram and Co. with the said three private limited companies were to be utilised for the business of the companies, namely, purchase of steel pipes.

(3.) Dungarmal Futnani made a will on June 28, 1982 and it was registered at Madras. He died on April 1, 1983. Under the will, Dungarmal bequeathed the properties at Calcutta to the five sons of respondent No. 1-complainant, each getting a one-fifth share, and under the will, no property or asset belonging to Dungarmal was given to any of the petitioners-accused. Mohanlal, husband of the complainant, and his eldest son, Madhusudan, were appointed as executors of the will. In May, 1983, before probating the will, petitioner No. 1-accused No. 1 suggested to the husband of the complainant that there should be a settlement of certain disputes, including the interpretation of the will. The husband of the complainant and his son Madhusudan, in good faith, accepted the suggestion of accused No. 1 and agreed to refer the matter to the arbitration of Mr. Bishen Swarup Agarwal and Mr. T.K. Gupta of Bombay. The reference was accordingly made. The arbitration was held at Bombay and award was given on November 12, 1983, at Bombay. The husband of the complainant took steps to probate the will at Madras by filing a petition in or about July, 1984. The complainant alleged that the accused, by practising fraud on the two companies-Murlimal Santram and Co. (Bombay) Private Ltd. and D.B. Futnani and Sons (Bombay) Private ltd., caused losses running into several lakhs of rupees. Accused No. 1 admitted before the arbitrators regarding the loss caused by the accused and this has been recorded by the arbitrators in the minutes.