IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.291/2010 Kirti R. Trivedi VERSUS The State of Madhya Pradesh --------------------------------------------------------------------------- Shri Atulanand Awasthy, counsel for the applicant. Shri Ajay Tamrakar, Panel Lawyer for the State/ respondent No.1. Shri P.C.Paliwal, counsel for the respondent No.2. --------------------------------------------------------------------------- ORDER
(Passed on the 9th day of April, 2013) The applicant has preferred the present revision against the order dated 3.11.2009 passed by the learned Second Additional Judge to 5th Additional Sessions Judge, Chhindwara in S.T.No.231/2009, whereby the charges of offence punishable under sections 419, 420, 467 and 468 of IPC were framed against the applicant.
2. The prosecution's case, in short, is that, the complainant Sumit Kumar Kabra has sent a complaint to the S.P., Chhindwara on 17.5.2006 that the applicant and the complainant entered into a partnership agreement dated 14.1.1996 and it was agreed that from 1997, the income obtained from Anupam Drilling Company shall be divided : 2 : Criminal Revision No.291 of 2010 between the applicant and the complainant. An account of firm was also opened in Allahabad Bank, Chhindwara in the year 1996. Wife of the complainant suffered illness and therefore, the complainant could not see the transactions of the company. In the year 1998, his wife died. Thereafter, the complainant found that no transaction took place in the partnership firm and therefore, no income was shown in the account of the firm kept in Allahabad Bank but, in January, 2006, the complainant was informed that the applicant was continuing his business in the name of Anupam Drilling Company and he converted that partnership firm into a proprietary concern and he is getting the profit in his personal accounts and he was dealing the work of Anupam Drilling Company in his own name. The complaint was referred to the concerned Police Station and SDOP was also directed for enquiry. Thereafter, a case was registered. The learned Additional Sessions Judge, after hearing the learned counsel for the parties framed the aforesaid charges thereafter.
3. I have heard the learned counsel for the parties. The complainant Sumit Kumar Kabra was also made a party in the present revision and he is duly represented by Shri P.C.Paliwal, Advocate. : 3 : Criminal Revision No.291 o”
4. At the stage of framing of the charges, appreciation of evidence cannot be done but, it is to be seen that by the evidence collected by the prosecution, whether any conviction can be drawn against the accused or not and if the answer is affirmative then, charges of such offences shall be framed against the accused. In this connection, if the evidence collected by the prosecution is perused then, it would be apparent that the complainant could not show any document, which was forged by the applicant. A specific allegation of forgery is required. It appears that the complainant alleged the forgery of documents, in which the Anupam Drilling Company was shown to be a proprietary concern. If the FIR and agreement of partnership is perused then, it was clearly mentioned in the agreement that it shall commence from the year 1997 and if the agreement is silent on any point then, the provisions of Indian Partnership Act shall be applicable. The agreement was executed in the year 1996 and it was commenced in the year 1997. It is apparent that no registration of partnership firm was done, as required by the provisions of the Indian Partnership Act and therefore, the partnership did not commence. Secondly, the partnership was to be commenced in the year 1997, whereas, the complainant could not participate in the partnership since the year 1996 because of ailment of his : 4 : Criminal Revision No.291 of 2010 wife. Looking to the FIR lodged by the complainant, he did not take any interest in the activities of the partnership firm thereafter. After the death of his wife, in the year 1998, he did not take any interest in the activities of the alleged partnership firm. Under such circumstances, the complainant could not establish prima facie that the sole proprietary concerned which was being run by the applicant in the name of Anupam Drilling Company was converted into a partnership firm and therefore, if the applicant is continuing his business in the name of Anupam Drilling Company as a sole proprietary concern then, prima facie he has not done any forgery and therefore, no offence punishable under sections 467 and 468 of IPC is constituted against the applicant. The learned Additional Sessions Judge has committed an error of law in framing the charges of offence punishable under sections 467 and 468 of IPC.
5. So far as the cheating is concern, it was for the complainant to establish prima facie that he lost some amount in the transaction and the applicant had done some cheating in the transaction. According to the partnership deed, the complainant was entitled to get 50% share in the profit, if he had participated by giving his full time to the partnership firm and its activities but, it is apparent from : 5 : Criminal Revision No.291 of 2010 the FIR that the complainant did not participate in the activities of the partnership firm since the year 1996 and thereafter, no partnership was commenced due to his overt- act. He did not show that he raised the capital of the Anupam Drilling Company or he paid any amount as a share capital or otherwise. Prima facie it is no where establish that the complainant participated in the activities of the partnership firm. Neither he gave any capital sum, not any amount was given to that firm and therefore, prima facie, no loss of any amount could be shown by the complainant in the case. If he would have given some amount to the Anupam Drilling Company then, after the death of his wife in the year 1998, he must have sought the accounts of the concerned firm from the applicant and he could have proceeded with the fact that why his entitlement to get the profit was not given by the applicant. On the contrary, the complainant kept silence for 8 years after the death of his wife. Under such circumstances, prima facie it appears that no partnership firm was constituted in the eye of law. The complainant did not participate in the activities of the partnership firm but, not the Anupam Drilling Company is doing its business in a proper manner then, he wanted to get the profit from that income. : 6 : Criminal Revision No.291 o”
6. Prima facie the complainant could not establish any cheating done by the applicant. No loss could be shown by the complainant due to the activities of the applicant and therefore, no offence punishable under sections 419 or 420 of IPC is constituted against the applicant. The present case is nothing but, a case of civil nature and the complainant had lodged an FIR, after 8 years of his cause of action in an omnibus manner.
7. On the basis of the aforesaid discussion, it is apparent that it was a civil transaction between the parties and no offence punishable under sections 419, 420, 467 or 468 of IPC is made out against the applicant prima facie by the evidence collected by the prosecution. The learned Additional Sessions Judge has committed an error of law in framing such charges against the applicant. The impugned order appears to be perverse and therefore, it is fit case, in which an interference is required from the side of this Court, by way of a revision. The revision filed by the applicant is hereby allowed. The impugned order dated 3.11.2009 is hereby set aside. The applicant is discharged from the charges of offence punishable under sections 419, 420, 467 and 468 of IPC. : 7 : Criminal Revision No.291 o”
8. A copy of the order be sent to the trial Court information and compliance. (N.K.GUPTA) JUDGE 9 4/2013 Pushpendra