Miss K. Sarojini and Another vs K.N. Varadarajan

Pratap Singh, J.—Accused 2 and 3 in C.C.4708 of 1991 on the file of XVI Metropolitan Magistrate, George Town, Madras, have filed this petition under S.482 Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the same.

The respondent has filed a private complaint against the petitioners and another for offence under Ss.467, 468, 471 and 420 I.P.C. The allegations in it are briefly as follows:

The complainant was one of the partners of the firm M/s. T.N.K. Govindaraju Chetty, Salem, which was registered with the Registrar of firms, Madras in 1942 and registered as firm No. 579/1942. There had been several changes from time to time. On 1.8.77 the partnership was reconstituted and the complainant and first accused were inducted as partners. The said firm was dissolved by oral mutual agreement between the partners, on 31.12.79 to which the first accused was also a party. A new partnership was constituted on 14.1.80 under the name and style of T.N.K. Govindaraju chetty to which also the first accused was party. It underwent two changes on 11.8.81 and 27.7.83. Since there were differences of opinion between the first accused and other partners, a notice of dissolution dated 31.12.83 was given to the first accused by all the remaining partners. An application under Form V was also sent to the Registrar of Firms intimating dissolution of firm. The Registrar sent a letter on 11.5.84 stating that according to their records the firm was already dissolved.

The complainant has come to know that all the three accused had filed Form V before the Registrar of firms on 21.8.90 stating that there had been change of constitution of firm registered as 579 of 1942 from 31.12.83. The complainant obtained a certified copy of Form A. To his shock, he found that first accused had made representation that all other partners had ceased to be partners from 31.12.83 and that second and third accused have also signed in that application form. The complainant understands that first accused had also sworn an affidavit before the Registrar that all partners other than himself as on 31.12.83 had retired from the partnership and second and third accused had been taken as new partners. None of the partners had given any such letter of retirement. The first accused had sworn a false affidavit.

The Accused have filed a forged document before the Registrar of Firms and had thereby induced him to effect changes in the constitution of an already dissolved firm. Hence the accused have committed offence punishable under Ss.467, 468, 471 I.P.C.

Mr. P. Ananthakrishnan Nair, the learned counsel appearing for the petitioners, would submit that the copy of complaint was not sent along with the summons to the petitioners and hence there is violation of the provision made in S.204(3) of Criminal Procedure Code. He would further contend that according to the respondent, the firm was dissolved on 31.12.79 and the newly constituted firm was also dissolved on 31.12.83 and while so, anything if done by the petitioners, with a view to effect changes in the constitution of the firm could not have any consequence and that there are no allegations to make out the offences alleged. Per contra Mr. K. Asokan, the learned counsel appearing for the respondent, would submit that the provisions of S.204(3) Criminal Procedure Code are directory and not mandatory and that allegations to make out offences alleged are made in the complaint and hence it cannot be quashed at the threshold.

I shall first take up the contention of the learned counsel appearing for the petitioner that in view of failure to compoly with the provisions of S.204(3) Criminal Procedure Code, the complaint is liable to be quashed. In Jagannath Sahu Vs. State and Another, it was held that the provisions of S.204(1-B) are merely directory. They will not per se vitiate the proceedings. In Prabh Dayal Gobind Ram Vs. R. Mudgil, A.S.M., the Punjab High Court had held that the provisions directing that summon should be accompanied by copy of the complaint as ordained in S.204(1-B) are directory and failure to attach copy of complaint does not invalidate or nullify issue of process and that defect can be cured by supplying copy of complaint to accused on or before his appearance. In Brahma Panda and Another Vs. Chairman of Howrah Municipality, , it was held that the jurisdiction of the magistrate is not affected simply because the summons was issued without copy of complaint. So the failure to send copy of complaint along with summons would not vitiate the proceedings. The provision is only directory and not mandatory.

To appreciate the second contention that allegations in the complaint do not make out the offence alleged, certain allegations made in the complaint need be briefly stated According to the complainant, a partnership firm was constituted in 1942 and was registered as firm. No. 579/1942 and it underwent changes from time to time and ultimately it was dissolved by oral mutual agreement on 31.12.79. It is further alleged that a new partnership was constituted on 14.1.80 and it was ultimately dissolved on 31.12.83 by a notice of dissolution given by all the partners excepting to the first accused. It is further alleged that complainant had come to know that all the three accused had filed Form V before the Registrar of Firms on 21.8.90 stating that there has been a change of constitution of the firm T.M.K. Govindaraju Chetty, Salem, registered as No. 579 of 1942 from 31.12.83. From Form A it was found that first accused had made representation to the Registrar of Firms that all other partners had ceased to be partners from 31.12.83 and change of constitution of the firm was intimated by the first accused on 21.8.90 and second and third accused have also signed in the application form. The first accused had also filed an affidavit stating that all other partners have retired on 31.12.83 and accused 2 and 3 were taken as new partners. So the sum and substance of the complaint is that though the partnership which was constituted in 1942 and was registered as Firm No. 579/1942 was dissolved by oral mutual agreement on 31.12.79 taking advantage of the fact of the failure to intimate the same to the Registrar of Firms, all the three accused had filed Form V on 31.8.90 as if all the partners other than the first accused had retired and as such accused 2 and 3 were taken as new partners as if Firm 579/1942 continued to exist all through and thereby necessary changes were effected.

''Forgery'' is defined in S.463 I.P.C. Whoever makes a false statement is defined in S.464 I.P.C. The first part of S.464 I.P.C. reads as follows:

Making a false document A person is said to make a false document.

First who dishonestly or fraudulently makes, signs, seals or execute a document or part of a document, or makes any mark denoting the execution of a document with the intention of a causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, or executed, or at a time at which he knows that it was not made, signed, sealed or executed, or.

Explanation 1 which is relevant reads as follows:

Explanation:- A man''s signature of his own name may amount of forgery.

Allegations are available in the complaint that first accused is a party to the dissolution by mutual oral agreement on 31.12.79. In para 13 of the complaint, it is also alleged that the accused were fully aware of the dissolution of the firm on 31.12.79. So knowledge is imputed to accused 2 and 3 also who are petitioners herein. But yet they have submitted on application in Form V as if the partnership firm continued to exist and all others retired and accused 2 and 3 were taken in as new partners. Thus they had executed a document with the intention of causing it to be believed that such document was executed by authority of person by whose authority they know it was not made. It is positively alleged in the complaint that other partners had not retired.

But as if they had retired this Form V was set to a public authority with a view to make him to act on it and effect changes in the Register of Firms. Prima facie offence under Ss.467, 468 and 471 as well as 420 I.P.C. are made out on the allegations made in the complaint. It is to be seen during the course of evidence whether these allegations are substantiated or not. That would come only at the time of trial and not at this stage. Hence the complaint is not liable to be quashed at this stage.

The contention of Mr. P. Ananthakrishnan Nair that even according to the complaint both the firms were dissolved and while so, the alleged attempt to effect changes in the Register of Firms with regard to the constitution of the firm could not have any consequence is not correct. If it was made to appear that partnership continued till the date of the reconstitution of 31.12.83 as sought to be made out by the accused the liabilities of the partners interest and vis-a-vis their purpose would continue. So I am unable to accept either this contention.

In view of the above, this petition which does not have any merits shall stand dismissed.