GURNAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure for quashing F.I.R. No. 120 of 1983, Police Station, City Khanna under Section 420 of the Indian Penal Code and the order charge- sheeting the petitioners.

(2.) THE complaint was given by respondent No. 2. According to the F.I.R., petitioners Nos. 1 and 2 and one Hem Lata wife of Rajan Bansal constituted a partnership firm under the name and style of M/s. Rajan Enterprises and carried on business at Malerkotla Road, Khanna. Respondent No. 2 provided the facilities of Rs. 3 lakhs Cash credit limit on ledger basis and Rs. 4 lakhs under the facility of letter of credit. The partners have pledged six tractors and some spare parts and pawned and pledged either in show room or elsewhere under the control of State Bank of Patiala, Khanna and also executed the loan document on 7.6.1983. The legal possession of the said tractors was with the said bank and said moveable property had been entrusted to the petitioners and said Hem Lata. The said moveable property was having an obstacle of chain and lock put by the said Bank on the tractors. The three partners i.e. the present petitioners and said Hem Lata in collusion with each other entered into a criminal conspiracy and dishonestly removed the said six tractors by removing the said obstacle of chain and lock put by the Bank, out of the legal and actual possession of the Bank with an intention to cause wrongful gain to themselves and wrongful loss to the bank and it is alleged that thereby they have committed offences under Sections 379, 380, 406, 409 and 120-B of the Indian Penal Code.

(3.) LEARNED counsel for the petitioners has cited the case of Sham Sundar and others v. State of Haryana, 1989(2) RCR 494 wherein the Hon'ble Supreme Court held that all individual partners are not to be prosecuted for an offence committed by a partnership firm and the person who was entrusted with the business of the firm and was responsible for conduct of business could be prosecuted. The Supreme Court has also held in State of U.P. v. R.K. Srivastava and another, 1989(2) RCR 479 that when the F.I.R. is under Sections 420, 467 etc. against a number of accused persons and the High Court quashed the proceedings under Section 482 Cr.P.C. against one accused only and when the allegations against other accused in the FIR are the same, the entire proceedings against other co-accused should be quashed. It is also held that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. Relying on these two judgments of the Supreme Court, learned counsel for the petitioners has argued that the FIR deserves to be quashed because the FIR against Hem Lata is quashed by this court and it cannot survive against other accused/petitioners. He has also cited before me the cases of State of Punjab v. Romesh Kumar Gupta, 1991(3) RCR 355 and Rattan Kumar Jindal v. Bhagwan Dass, 1995(1) RCR 396. In the case of State of Punjab v. Romesh Kumar Gupta (supra), it has been held by a Division Bench of this Court that the accused taking delivery of goods with promise to pay the money does not commit an offence of cheating if the money is not paid. In the case of Rattan Kumar Jindal v. Bhagwan Dass (supra) it has been held that when nothing is shown that petitioners had dishonest or fraudulent intention at the time when goods were supplied for they had induced the respondent to part with the goods, no case under Sections 406 and 420 of the Indian Penal Code is made out and it was merely a breach of contract. The facts of said two cases are different because it is not contended that the delivery of the goods were taken on the promise to pay the money and also this is not a case where the goods were supplied so that the intention at that time cannot be considered.