GATTAMANENI PRAMEELA Vs. AVULA HYMAVATHI

JUDGEMENT

(1.) By this petition under Section 482, Cr.P.C., the petitioners who are accused Nos. 3, 4 and 5 respectively in C.C. No. 442/96 on the file of the III Metropolitan Magistrate, Viajayawada in Krishna District are challenging the proceedings initiated against them in that case by the 1st respondent herein.

(2.) A copy of the complaint-petition in C.C. No. 442/96 is filed along with this petition. As seen from the averments of this complaint-petition, the allegations against these petitioners are as follows : The 1st accused M/s. Padmalaya Finance Corporation is a partnership firm and carrying on finance business. The 2nd accused Aluvelu Mangamma is its Managing Partner. Accused 3, 4 and 5 (petitioner herein) are its partners, 6th accused is its Manager and 7th accused is the husband of the 2nd accused. The 1st respondent-complainant deposited a sum of Rs. 15,000.00 on 17-1-1986 and Rs. 15,500.00 on 12-1-1987 with the 1st accused and the 1st accused agreed to pay on the said amounts interest at 12% per annum on demand, every year and it has been doing so every year. The last statement of accounts for the period from 1-4-1993 to 31-3-1994 was signed by the 6th accused as the Manager of the 1st accused firm acknowledging an amount of Rs. 56,850.00 due to the complainant as on 31-3-1994. In spite of repeated demands, the 1st accused firm failed to settle the accounts. While matters stood thus, the complainant received a notice of Insolvency petition No. 38/95 from the Court of II Addl. Subordinate Judge at Vijayawada. From the said notice, the complainant came to know that M/s. Krishna Enterprises of which accused 6 and 7 are partners and accused No. 7 is the Managing partner, filed the Insolvency petition 38/95 and the complainant was shown as respondent No. 75 in the said petition, and that M/s. Krishna Enterprises is indebted to the complainant in a sum of Rs. 56,850.00. The complainant does not know anything about M/s. Krishna Enterprises and he never deposited any amount in Krishna Enterprises. The complainant has to get that amount from the 1st accused and also from its partners A-2 to A-5. The accused might have conspired and transferred the complainant's account from the account of the 1st accused-firm to the account of M/s. Krishna Enterprises without the knowledge or consent of the complainant by forging the documents with an intention to defraud and cheat the complainant to have a wrongful gain for themselves. The 2nd accused issued a reply to the notice issued on behalf of the complainant alleged falsely that the 1st accused firm, during 1994, decided to close down the business due to heavy loss and therefore, with the consent of all the creditors, the amounts due to them were transferred to M/s. Krishna Enterprises on account of the business arrangements. The complainant never gave consent for the alleged transfer of account from A-1 to M/s. Krishna Enterprises. Therefore, the complainant alleged, that all the accused are liable for punishment for the offences under Sections 120-B, 420, 406 and 468 of Indian Penal Code. Challenging the said complaint, the accused 3, 4 and 5 have come up with this petition.

(3.) The learned counsel for the petitioners raised the following contentions : (1) The complaint is not maintainable both on facts and law - that the petitioners have ceased to be the partners of the A-1 firm with effect from 22-10-1988 and that fact has been informed to the Registrar of Firms and incorporated in the Register of the firms and that a new partnership was entered into between accused Nos. 2 and 2 others after these petitioners ceased to be the partners on 22-10-1988. Even if the petitioners have been continuing as partners in A-1's firm, they cannot be prosecuted as they were not incharge of the business of the firm on the date of the alleged offence. (2) The complaint is silent with regard to the overt acts attributed to these petitioners in the commission of the offences. (3) The averments in the complaint, even admitted to be true, make out a civil liability but not criminal liability and as such, criminal complaint is not maintainable. (4) The averments in the complaint are vague and the complainant has not given the details of the documents which were said to have been forged and fabricated and which of the accused did the same, and that the proceedings are sheer abuse of process of Court.