State of Punjab vs Ramesh Kumar

Harmohinder Kaur Sandhu, J.

On 241981 Amrit Lal, a partner of M/s Ramesh Kumar and Company, Qadin, District Gurdaspur made a complaint to the Senior Superintendent of Police, Gurdaspur in writing alleging that he and Ramesh Kumar son of Mulakh Raj were partners of a firm M/s Ramesh Kumar and Company, Railway Road, Qadin. This firm was dissolved on 511981 vide a dissolution deed executed by the partners. Ramesh Kumar was given all his capital as appearing in the accountbooks of the firm upto 511981 and Amrit Lal was free to continue the business of the firm either individually or in partnership with some other person. On the same day another partnership deed was executed whereby Mulkh Raj son of Charan Dass became the partner with Amrit Lal and the firm started business under the name of M/s Ramesh Kumar and Company. After dissolution of the partnership Ramesh Kumar had nothing to do with the business of the firm. The new partners had deposited a sum of Rs. 25,000/ as security amount vide Bank Draft No. 18839 dated 281981 with the District Manager, Food Corporation of India, Gurdaspur by way of security for the paddy milling contract. Ramesh Kumar fraudulently with the intention to cause financial loss to the partners of the new firm obtained a cheque for Rs. 25,000/ from the District Manager, Food Corporation of India, Gurdaspur on behalf of the firm of the petitioner and obtained payment from State Bank of India, Gurdaspur on 3031981. He misrepresented to the Manager, Food Corporation of India with the intention and motive to defraud the new firm. On the basis of this complaint a case under Sections 420, 468 and 471 of Indian Penal Code was registered against Ramesh Kumar at Police Station, City Gurdaspur. Investigation in the case was made and challan was presented in the Court of Shri D.S. Chhina, the learned Chief Judicial Magistrate, Gurdaspur.

The respondent was charged for the offences mentioned above to which he pleaded not guilty. In his statement under Section 313 Cr. PC. he contended that there was no dissolution of partnership and he was still a partner of the Arm. He admitted that he opened account with State Bank of India, Gurdaspur and deposited a cheque for Rs. 25,000/ in his account. According to him this amount was deposited with Food Corporation of India by him and he was entitled to withdraw the same. In his defence he examined his own brother.

The prosecution examined twenty witnesses to prove that a draft for a sum of Rs. 25,000/ was got prepared by Amrit Lal PW from his own funds and by raising loan which was deposited with FoodCorporation of India and after the partnership was dissolved Ramesh Kumar withdrew that amount and deposited the same in his own account. The contention of the respondent was that partnership was never dissolved and his signatures were obtained on a blank paper which was used for executing a fictitious dissolution deed. He also denied having received all his assets from the firm on 511981.

After perusing the evidence and hearing the councel for the parties the learned trial Court found that the matter required investigation by the Civil Court and it could not be said that the respondent had committed any offence as alleged by the prosecution. The respondent was, therefore, acquitted vide judgment dated 2311984 which has been assailed by the State of Punjab by means of this appeal.

It was argued on behalf of the Stateappellant that the respondent had fraudulently collected the cheque from Food Corporation of India in the name of M/s Ramesh Kumar and Company and got it encashed after opening an account in the Bank. This amount in fact belonged to M/s Ramesh Kumar & Company which consisted of Amrit Lal and Mulakh Raj partners. The respondent had ceased to be a partner of the firm on 511981 when dissolution deed was executed. Photostat copy of the dissolution deed Ex. PC has been placed on record. A perusal of this document shows that on 511981 Ramesh Kumar had taken away all his capital as standing in the books of the firm on that day and nothing more was due to him. This assertion is however, belied by the evidence on record led by the prosecution according to which a sum of Rs. 21,234.00 was received by Ramesh Kumar respondent on 1731981. If all the accounts had been cleared on 511981 then no such receipt would have been procured from Ramesh Kumar. Document Ex. PK addressed to District Manager, Food Corporation of India, Gurdaspur which is dated 231981 further shows that Rakesh Kumar had delivered the draft of Rs. 25,000/ to Food Corporation of India in his capacity as Manager of Ramesh Kumar and Company after the firm was alleged to have been dissolved. It is not the case of the complainant that Ramesh Kumar was appointed Manager of the new firm constituted on 5l1981. Ramesh Kumar has denied dissolution of the firm and pleaded that the dissolution deed was forged. In these circumstances the dispute between the parties is solely of civil nature and the respondent was not criminally liable as observed by the learned trial Court. In the case of Hari Prasad Chamaria v. Bishun Kumar Surekha and others. AIR 1974 Supreme Court 301 it was held :

"Even assuming prima facie all the allegations in the complaint to be true they merely amount to a breach of contract and could not give rise to criminal prosecution. There was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money nor did the complaint indicate that the respondents had induced the appellant to pay them the amount parted with. The appellant also did not allege the respondents making any representation to him for parting with the money. Mere fact that they did not abide by their commitment as to starting of the business in complainant''s name as agreed to would not fasten them with criminal liability."

In the instant case even if it is assumed that the dissolution deed is genuine, still there is nothing to show that the respondent had dishonest or fraudulent intention when the security amount was withdrawn from Food Corporation of India. All that can be said is that he did not stick to the terms and conditions of the dissolution deed and thus, committed breach of the same which may fasten him with civil liability. The findings of the learned trial Court in acquitting the respondent are thus, correct and require no interference.

As a result we do not find any merit in this appeal and dismiss the same.