Gurnam Singh vs State of Punjab

S.S. Sudhalkar, J.

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.

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 120B of the Indian Penal Code.

Learned counsel for the petitioners has contended that the suit filed by the Bank was decreed and, therefore, it is a civil liability and criminal liability cannot be fastened on the petitioners. He has shown to me the case of Hem Lata v. State of Punjab, 1992(1) RCR 384 . That was a case filed by the third partner Hem Lata. The learned Single Judge of this court had quashed the First Information Report No. 120 of 1983 under Section 420 of the Indian Penal Code, Police Station City Khanna and the order of the Sub Divisional Judicial Magistrate, Khanna dated 19.2.1987 framing charge against the petitioner of that case. The learned Single Judge has held that the business of M/s. Rajan Enterprises was carried on by Gurnam Singh, partner, and that the other two partners namely, the petitioner Hem Lata and Smt. Harjinder Kaur were the sleeping partners only and it was specially stated in the agreement that the sleeping partners shall not interfere in the working of the partnership business. It may be noted that Smt. Harjinder Kaur had not filed the said petition along with Hem Lata, though in that case it was held that she was also a sleeping partner.

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 coaccused 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.

It has been argued on behalf of the bank that partnership agreement produced by the petitioners in this case and that which was produced before the bank are different. The respondentbank had produced annexure R/1, a copy of the partnership agreement, produced before the bank by the petitioners. If we see annexure P/1 produced by the petitioners and annexure R/1 produced by the respondentBank, the difference can be seen. Annexure R1 is dated 28.1.1980 and annexure P/1 is dated 6.2.1980. This shows that agreement annexure P/1 might not have been deliberately produced before the Bank in order to get facility of cash credit. Therefore, the fact that FIR against Hem Lata, the third partner has been quashed does not help the petitioners in any way. Moreover, petitioner No. 1 is admittedly not the sleeping partner.

Learned AAG, Punjab appearing for the State has cited before me the case of State of Bihar and another v. Shri P.P. Sharma and another, AIR 1991 SC 1260. In paragraph 33 of that judgment the Hon''ble Supreme Court has held that :

"...We are of the considered view that at a stage when the police report under Section 173 Cr.P.C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction."

Here in the present case it is submitted that the challan is already filed in the court. This being the position and in view of the peculiar facts which will be appreciated by the trial court only after taking evidence, this petition for quashing the FIR cannot be accepted.

In the result, this petition is dismissed.