BIRENDRA SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner has preferred this petition under Section 439 (2) of the Code of Criminal Procedure for cancellation ot the bail granted to the respondent No.2 vide order dated 30 8-05 passed in B.P.No.965/05 in C.P. Case No.325/02 by the Sessions Judge, Bokaro and also for the re-arrest of the petitioner.

(2.) The brief fact of the case is that the petitioner/ complainant instituted C.P. Case No.325/02 alleging, inter alia, that the petitioner had entered into partnership with the respondent No.2 and several partnership firms were constituted as against partnership deeds time to time executed by them viz. M/s. Akshay Steel, M/s. Vishwanath Transport, M/s. Chandra Transport Agency and so on. The petitioner had invested a huge amount in the aforesaid partnership firms. According to the terms and partnership deed and agreement relating to Akshay Steels, its bank account was opened in Vijaya Bank, Naya More Branch, Bokaro Steel City to be operated under the joint signatures of both the partners but the respondent No.2 Suresh Kumar Tekriwal withdrew Rs. 17,20,789.00/- through 48 cheques between 3-8-1999 to 28-2-2000. The complaint therefore, was filed for the offence under Section 420/406/468/469/471/34 I.P.C. It is further alleged that during continuation pf partnership business in relation to M/s. Akshay Steels and M/s. Vishwanath Steels, dispute arose between the parties and according to the terms No. 19 of the partnership deed, the matter was referred to the Arbitrator Shri B.N. Prasad as the sole Arbitrator who passed award on 20-11-2000 and subsequently Execution Case No.5/ 2001 was filed for the execution in the Court of Sub-Judge-1, Bokaro which ended in compromise dated 1-4-2002.

(3.) Learned Counsel pointed out that during the pendency of the claims before the Arbitrator, the business of the firms was continuing and income derived from such business was not included in the claims before the Arbitrator as such the said amount, was not included in the Arbitrator's Award. However, provision was made under clause 13 of the award that whatever amount would be received which was not included in the arbitration dispute would be deposited in the joint account of both the parties and would be distributed equally. Respondent No.2 received Rs. 15,26,00000/- and 26,51,00000/- from different activities of the aforesaid partnership firms which was not included in the arbitration dispute but the aforesaid amount was misappropriated by the respondent No.2 by committing forgery though the petitioner had 50% share therein The Chief Judicial Magistrate, Bokaro took cognizance of the offence under Sections 420/406/467/469/471/34 I.P.C. vide order dated 17.3.05 in complaint case.