Arvind Joshi @APPELLANT@Hash State of Rajasthan

 This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner essentially with a prayer for quashing the FIR No.102/2017

dated 04.09.2017 of Police Station Sadar Bazar, District Jodhpur City East for the offences punishable under Sections 420 and 406 IPC.

In the instant case the respondent No.2 filed a complaint in the Court of Judicial Magistrate, Jodhpur Metropolitan under Section 156(3) Cr.P.C. with

the allegation that he and the petitioner started a business and during the said business a dispute regarding money transaction arose. The said

complaint was forwarded to the Police Station Sadar Bazar, District Jodhpur under Section 156(3) Cr.P.C. and the police have registered the

impugned FIR against the petitioner for the aforesaid offences.

Learned counsel for the petitioner has argued that as a matter of fact the complainant-respondent No.2 and the petitioner are partners in a partnership

firm and till date the said partnership firm has not been dissolved, therefore, the allegations levelled in the impugned FIR against the petitioner

regarding breach of trust cannot be said to be made out.

In support of the above argument, learned counsel for the petitioner has placed reliance on the decision of Hon’ble Supreme Court rendered in

Velji Raghavji Patel Vs. The State of Maharashtra reported in AIR 1965 SC 1433 (V 52 C235) and the decision of this Court rendered in Hari Mohan

Vs. State of Rajasthan & Anr. reported in 2006(2) Cr.L.R. (Raj.) 1669. Learned counsel for the petitioner has also placed reliance on the decision of

Full Bench of Calcutta High Court rendered in Bhuban Mohan Das Vs. Surendra Mohan Das reported in AIR (38) 1951 Calcutta 69 and the decision

of Single Bench of Calcutta High Court rendered in S.A.Q. Hashmi Vs. The State & Anr. reported in 1980 CRI.L.J. 1030.

Learned counsel for the petitioner has argued that in the above referred decisions, the Hon’ble Supreme Court, this Court and the Calcutta High

Court have specifically held that where the accounts of partnership firm are not settled, one partner of the partnership firm cannot allege breach of

trust against another partner.

It is also argued by learned counsel for the petitioner that from the partnership agreement, it is clear that there is an arbitration clause in the said

agreement, wherein it is mentioned that in case of any dispute, the matter can only be referred to the arbitrator but the complainant-respondent No.2

has straightway lodged the impugned FIR against the petitioner, therefore, the same is liable to be quashed.

Learned counsel for the petitioner has further argued that as a matter of fact the petitioner served a legal notice upon the complainant-respondent

No.2 on 02.08.2017 asking him for settlement of accounts of partnership firm, in which both are the partners and after receiving the said notice the

complainantrespondent No.2, with the mala fide intention, has filed this false impugned FIR against the petitioner.

Learned counsel for the petitioner has, therefore, prayed that the impugned FIR is nothing but an abuse of process and the same may kindly be

quashed.

Per contra, learned Public Prosecutor as well as learned counsel for the respondent No.2 have argued that a bare reading of allegation contained in

the impugned FIR do constitutes a prima facie offence against the petitioner and, therefore, no interference is called for while exercising powers under

Section 482 Cr.P.C.

Learned counsel for the complainant-respondent No.2 has submitted that the decisions referred by the learned counsel for the petitioner of

Hon’ble Supreme Court, this Court and Calcutta High Court have no applicability in the present controversy because in all those cases, the Courts

have taken into consideration the evidence collected by the prosecution on the basis of which they have initiated proceedings against the accused

persons, however, in the present case till date the investigation has not been completed and the police have not filed any final conclusion on the basis

of the evidence collected by it and therefore, it cannot be said that the impugned FIR is abuse of process and liable to be quashed. Â

Heard learned counsel for the parties and perused the impugned FIR as well as the material available on record.Â

The complainant-respondent No.2, in the impugned FIR, though, stated that he and the petitioner are partners of a partnership firm, which is dealing in

medicines but alleged that as the petitioner was handling accounts of partnership firm, he used the money of partnership firm for his personal use for

his personal expenditures. It is also alleged that from the money of partnership firm a flat was purchased in the name of petitioner and an agreement

of this effect was also executed by the petitioner that the same flat would be transferred in the name of wife of the complainant-respondent No.2,

however, later on, the petitioner has refused to transfer the same in the name of wife of the complainant-respondent No.2. It is specifically alleged

that the installments of the flat were paid from the account of partnership firm.

The complainant-respondent No.2 has also alleged that the petitioner being a partner of partnership firm received money from various clients but did

not deposit the same in the account of partnership firm and purposely deposited the same in his personal account. The complainant-respondent No.2

has also alleged in the impugned FIR that the petitioner has obtained a loan to the tune of Rs.5,00,000/- from his brother, however, he has neither

repaid the loan nor incorporated his brother as a partner of partnership firm as agreed at the time of taking loan. The complainantrespondent No.2 has

also alleged that the petitioner misappropriated the medicines, which are mortgaged with the bank against the loan advanced to the partnership firm.

Hon'ble Apex Court in State of Haryana & Ors. V/s. Bhajan Lal & Ors. reported in 1992 SCC (Cri) 426 has examined the powers of the High Court

of quashing First Information Report lodged in any police station while exercising the power under Article 226 of Constitution of India or under Section

482 Cr.P.C. and has held as under:-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under

Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima-facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.â€​

In a later decision the Hon'ble Supreme Court in Rupan

Deol Bajaj (Mrs) & Anr. V/s. Kanwar Pal Singh Gill & Anr. reported in 1995 SCC (Cri) 1059 has reiterated the above principle.

In the instant case, after reading the contents of the FIR in question, it cannot be said that the allegations levelled by the respondent No.2 against the

petitioner do not prima facie constitute any offence or make out a case against the accused.

So far as the contention of learned counsel for the petitioner to the effect that till date the partnership firm has not been dissolved or the account of the

partnership firm has not been settled, I am of the opinion that it is a matter of investigation and the police during the course of investigation will verify

all these facts and thereafter will proceed in accordance with law.

After carefully scrutinizing the impugned FIR, I am of the opinion that the case of the petitioner is not falling in any of the guidelines as drawn by the

Hon’ble Supreme Court in the above referred cases.

It is noticed that the Hon’ble Supreme Court has specifically held that the power of quashing a criminal proceeding should be exercised very

sparingly and with circumspection and that too in the rarest of rare cases, however, I don’t find that the present case is rarest of rare case.

Hence, no interference is called for.

The decisions referred above by learned counsel for the petitioner have no applicability in the present controversy as in all those cases, the Courts

have given their verdict after analyzing the evidence produced by the prosecution. However, in the present case still only a FIR has been lodged and

police is under the process of collecting the evidence and, therefore, it cannot be said that the impugned FIR is liable to be quashed only on the ground

that the partnership firm has not been dissolved or the accounts of the partnership firm has not bee settled. Â

In such circumstances, in the light of the principle laid down by the Hon'ble Supreme Court in above referred decisions rendered in Haryana & Ors.

V/s. Bhajan Lal & Ors. (supra) and Rupan Deol Bajaj (Mrs) & Anr. V/s. Kanwar Pal Singh Gill & Anr. (supra) and in view of the above discussions,

this Court does not find any merit in this criminal misc. petition as the petitioner has failed to make out a case for quashing the impugned FIR.

Hence there is no force in this criminal misc. petition and the same is hereby dismissed with cost of Rs.5,000/-

Stay petition is also dismissed.