Allahabad High Court
Janakraj And 3 Others vs State Of U.P. And Another on 18 September, 2023
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:180046 Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10083 of 2023 Applicant :- Janakraj And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Yashvi Agarwal, Hridesh Batra, Sr. Advocate Counsel for Opposite Party :- G.A.,Rajiv Lochan Shukla Hon'ble Krishan Pahal,J.
1. Heard Sri Anurag Khanna, learned Senior Counsel assisted by Sri Hridesh Batra and Ms. Yashvi Agarwal, learned counsels for the applicants and Sri Rajiv Lochan Shukla, learned counsel for the informant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and also perused the material available on record.
2. Present anticipatory bail application has been filed on behalf of the applicants, namely, Janakraj, Nishant Kumar, Darshan Lal Makkar and Tarun Makkar, in F.I.R./Case Crime No. 0116 of 2023, under Sections 420, 467, 468, 471, 120-B & 406 of IPC, Police Station- Civil Lines, District- Meerut, with a prayer to enlarge them on anticipatory bail.
PROSECUTION STORY:-
3. As per the First Information Report lodged by the informant Kunal Paruthi at Police Station Civil Lines, District Meerut on 13.04.2023, the father of the informant Satish Kumar were four brothers in all and a land measuring area 2.9703 hectares in Khasra No.1581 was purchased by them and was declared as non-agricultural land u/s 143 of the Act, 19501 by Sub-Divisional Magistrate, Meerut but no demarcation of the said land took place, as such, all the partners were authorized to sell the land as a collective measures.
4. It is also alleged in the FIR that the father of the informant Satish Kumar expired on 26.06.2019, as such, he along with his mother Smt. Kiran Paruthi and his brother Siddhartha Paruthi were the successors of the property of Satish Kumar whereas his uncle Naresh Kumar expired on 02.04.2021 and the successor of the property of Naresh Kumar was Kushank Paruthi. In the month of January, 2023, the informant came to know that his uncles Janakraj and Nishant Kumar had illegally sold certain plots of land in Khasra No.1581 in favour of Nanak Giri and Anita Giri through four registered sale-deeds dated 12.01.2022, 30.08.2022 and 29.11.2022 by showing themselves to be the partners of M/s Mahalaxmi Associates, Meerut. It is also alleged that Khasra No.1581 is not entered in the name of M/s Mahalaxmi Associates in the Revenue Records. The said sale-deeds have been executed without any authorization by the named accused persons Janakraj, Nishant Kumar, Darshan Lal Makkar and Tarun Makkar, thus, they have committed criminal breach of trust to the tune of Rs.41,39,000/-.
RIVAL CONTENTIONS:-
Arguments on behalf of applicants:-
5. Sri Anurag Khanna, learned Senior Counsel has submitted that the partnership deed was entered into between four brothers on 03.03.2000 in the name of Firm i.e. M/s Mahalaxmi Associates, Meerut. The said partnership deed has been filed as Annexure-3 to the affidavit. Subsequent to it, a supplementary partnership deed was executed between the partners on 25.03.2014 whereby it was agreed upon that the said partnership deed shall continue even after the death of any of the partners, as such, the applicants have not committed any forgery by executing the sale-deed of the land which was purchased as partners of the said Firm on 08.03.2000 which is subsequent to the execution of partnership deed dated 03.03.2000.
6. Learned Senior Counsel has further stated that investigation is going on and the applicants are ready to cooperate during investigation and in trial as well. Learned Senior Counsel has placed much reliance upon the said four sale-deeds whereby the land earmarked as Khasra No.1581. Learned Senior Counsel has fairly conceded the fact that the informant is the legal heir of the deceased Satish Kumar and, as such, the profit earmarked for his father may be taken by the informant. The act of the applicants does not fall within the category of criminal breach of trust.
7. Learned Senior Counsel for the applicant has further stated that the father of the partners Sri D.L. Makkar carried a share of 25 % and his four sons had carried a share of 18.75 % each. Learned Senior Counsel has also relied upon paragraph nos.36 & 37 of the affidavit and the same are reproduced hereunder:-
36. That in fact, in the complaint it has been stated and somewhat confessed that the applicants had made full and final payment of the principal amount of the complainant and hence no ingredients of Section 420 are made out. There is no deceit, or dishonest inducing due to which any property has been transferred from the very initiation. It is pertinent to mention the relevant para/s of the judgement of the Supreme Court in case of Hridaya Ranjan Pd. Verma and Ors. vs. State of Bihar and Ors., reported in 2000 Cri.LJ 2983 at para-16 as follows:-
"Para 16-- To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
Secondly, in the case of Dilip Kaur and ors. vs. Jagnar Singh and ors. (2009) 14 SCC 696, Supreme Court observed as under:
"Para 12. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code."
37. Therefore, no offence under Section 420 of Indian Penal Code, 1860 is made out against the applicants."
Arguments on behalf of the Informant:-
8. Sri Rajeev Lochan Shukla, learned counsel for the informant has vehemently disputed the facts as stated by learned Senior Counsel appearing on behalf of the applicants and has stated that the Revenue Records do not mention the name of M/s Mahalaxmi Associates as "Owner" rather the said property has been purchased in individual capacity.
9. Learned counsel for the informant has placed much reliance upon the partnership deed dated 03.03.2000 and the supplementary partnership deed dated 25.03.2014 whereby the signatures of Naresh Kumar and Satish Kumar seem visibly forged in the supplementary partnership deed. The said supplementary partnership deed has been created by accused persons as a defence and is not a registered document and it has no value in the eyes of law. To buttress his submissions, learned counsel has placed reliance upon Section 14 of the Act, 19322 which reads as under:-
"14. The property of the firm.--Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of business of the firm, and includes also the goodwill of the business.
Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm."
10. Learned counsel for the informant has stated that the property exclusively belonging to a person does not become a property of the partnership Firm, as such, the property can only become the property of the partnership, if there is any agreement to it.
11. Learned counsel for the informant has also placed much reliance upon Section 42 of the Act, 1932 which reads as under:-
"42. Dissolution on the happening of certain contingencies.--Subject to contract between the partners a firm is dissolved,--
(a) if constituted for a fixed term, by the expiry of that term;
(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;
(c) by the death of a partner; and
(d) by the adjudication of a partner as an insolvent."
12. Sub-Section (c) of Section 42 of the Act, 1932 provides that the partnership Firm is dissolved by the death of a partner. In the present case, it is an admitted fact that two of the partners have expired on 26.06.2019 and 02.04.2021, respectively, thus, the partnership does not survive.
13. Learned counsel for the informant has further stated that the supplementary partnership deed dated 25.03.2014 is just to nullify Section 42 of the Act, 1932. The applicants have deliberately committed criminal breach of trust and forgery and, as such, are not entitled for anticipatory bail as they have even forged the documents regarding the supplementary partnership deed. Learned counsel for the informant has further stated that there is criminal history of one case assigned to the applicant no.2 Nishant Kumar as Case Crime No.38 of 2005, u/s 147, 323, 427, 504 & 506 of IPC, P.S. Sadar, District Meerut.
14. In rebuttal, learned Senior Counsel for the applicant has stated that the applicant no.2 is on bail in the said Case Crime No.38 of 2005 vide order dated 13.03.2020 by the Trial Court and his bail order is annexed as Annexure No.15 of the affidavit.
CONCLUSION:-
15. Section 42(c) of the Act, 1932 categorically provides that the partnership Firm stands dissolved by the death of a partner. The Apex Court in the case of Commissioner of I.T. v. Seth Govindram Sugar Mills3, has held that there cannot be a contract between the partners that on the death of one of them, the partnership will not be dissolved. Thus, the supplementary partnership deed does not carry any legal value even if it is not considered to be forged one.
16. In the case of Noor Mohd. Mir v. Qadir Mir4, it has been held that even the permission of any of the partners to use the property in partnership business cannot render it a partnership property
17. Considering the overall facts and circumstances of the case, arguments advanced by the learned counsel for the parties, settled principle of law and also considering the fact that in the Revenue Records, the name of the Firm is not entered and the execution of sale-deed has been conducted on the basis of the said partnership Firm and after considering the judgements of Apex Court passed in Commissioner I.T. (supra) and Noor Mohd. Mir (supra), this Court does not find it a fit case to grant anticipatory bail to the applicants.
18. Accordingly, the anticipatory bail application of the applicants is rejected.
Order Date :- 18.9.2023 Siddhant (Justice Krishan Pahal)