Madhya Pradesh High Court
Govind Das Biyani And Ors. vs Badri Narayan Rathi on 7 September, 1994
Equivalent citations: 1995(0)MPLJ194
ORDER R.P. Awasthy, J.
1. By filing the present petition under Section 482, Criminal Procedure Code it is being sought that the complaint filed by the non-applicant against the present petitioners be quashed.
2. Facts of the case are as below :
The petitioners and the non-applicant are partners of a firm. The present non-applicant filed a complaint in the Court of Chief Judicial Magistrate, Bhopal, alleging, inter alia, that the accounts of the said partnership firm used to remain in the custody of petitioner No. 4 who was responsible for maintaining the said accounts. It has been further alleged that from the month of March 1989 petitioners Nos. 1 to 3 in collusion with petitioner No. 4 conspired to commit criminal breach of trust by fraudulently depriving the present non-applicant of his share and earnings of the said firm and usurping amount of the said firm. To fulfil the said conspiracy, the said partners of the firm kept the present non-applicant away from the accounts of the said firm from the month of March 1989. Thereafter, no amount was paid to the present non-applicant. The said firm obtained payments of rupees four lacs from the Public Health Engineering Department of Bhopal Division and about nine lacs from Rajgarh, Schore, Shajapur, Guna and Raisen but no account of the said payment, was supplied to the present non-applicant. Nevertheless, the present petitioner No. 4 confessed before the witnesses of the complainant/ non-applicant that the said amount had been received by the said firm.
3. It has further been alleged in the said complaint that the said partnership firm possesses the articles detailed in para 4 of the said complaint. The partners of the said firm sold one truck belonging to the said firm. The non-applicant demanded from petitioner No. 4, to give him accounts of the firm but the present petitioners did not give the said accounts of the firm to him. On the other hand, they misbehaved with him and criminally intimidated him. Thus, in spite of repeated demands, the present petitioners were not giving the accounts of the said firm to the present non-applicant. On the said basis, it was alleged by the complainant/present non-applicant that the petitioners have committed offences punishable under Sections 406, 420 and 380, Indian Penal Code.
4. After recording the statement of the complainant and making an enquiry under Section 203, Criminal Procedure Code, the trial Court registered an offence punishable under Section 380, Indian Penal Code, against the present petitioners.
5. The present petitioners filed a revision petition against the said order which was rejected.
6. Now, the petitioners by filing the present petition seek quashing of the said order under Section 482, Criminal Procedure Code.
7. It has been argued for the petitioners that even if the entire complaint, as it is, is believed, no case for alleged commission of an offence punishable under Section 380, Indian Penal Code, is made out against the present petitioners. Even if, every word of the complaint is believed, the case or dispute is of purely civil nature and registration of the complaint for alleged commission of offence punishable under Section 380, Indian Penal Code, is obviously and clearly abuse of the process of the Court.
8. In reply, it has been submitted by the non-applicant that since it is a second revision in the garb of a petition under Section 482, Criminal Procedure Code, this petition is not maintainable. It has been further urged that since the complaint has been registered and process has been issued by the trial Court, it is incumbent upon the petitioners to approach the trial Court itself and submit pleas raised in the present petition in that Court. The said matter cannot be agitated in the High Court by filing a petition under Section 482, Criminal Procedure Code.
9. It is obvious that sub-section (3) of Section 397 bars only a second revision petition and the authority reported in Dharampal v. Ramshri, AIR 1993 SC 1361, does not abrogate or annul the powers conferred under Section 482, Criminal Procedure Code. The said authority lays down or reiterates only this proposition of law that a second revision petition cannot be filed in the garb of a petition under Section 482, Criminal Procedure Code. It does not lay down that a petition under Section 482, Criminal Procedure Code, cannot be filed to prevent abuse of the process of the Court. In this regard, it would be pertinent to refer Madhu Limaye v. State of Maharashtra, AIR 1987 SC 47.
10. Consequently, it is held that the present petition is maintainable as, in my opinion, continuation of such a complaint is nothing but an abuse of the process of the Court.
11. Even if the entire allegations contained in the complaint are accepted on their face value, the nature of the dispute is purely of civil nature for which filing of a criminal complaint is just to persecute and harass the present petitioners. By no stretch of imagination on the basis of the complaint filed by the non-applicant, an offence punishable under Section 380, Indian Penal Code, is made out. Therefore, registration of a case for alleged commission of the, said offence is grossly and patently illegal and improper. Even offence punishable under Section 406 or 420, Indian Penal Code, is not made out, because the non-applicant himself is a partner of the firm of which the present petitioners are also partners. No question of entrustment of any property to any particular partner arises. If the persons responsible for maintaining and keeping the accounts are not giving the said accounts to the present non-applicant/complainant, he can very well file a civil suit against the present petitioners for rendition of accounts. Therefore, the present petition filed under Section 482, Criminal Procedure Code, deserves to be allowed and the complaint filed by the non-applicant/complainant deserves to be quashed. Please see : State of U.P. v. R. K. Shrivastava, AIR 1989 SC 2222; Madhavrao v. Sambhajiro, AIR 1988 SC 709; Trilok Singh v. Satya Deo, AIR 1979 SC 850 and Shyam Sunder v. State of M. P., 1983 MPLJ 869.
12. In my opinion, the authority reported in Shyam Sunder v. State of M. P. (supra) fully applies to the present case. Chand Dhawan v. Jawahar Lal, AIR 1992 SC 1379 cited for the present non-applicant does not in any way help the non-applicant. In the said authority itself, it has been observed that regarding exercise of powers conferred under Section 482, Criminal Procedure Code, no inflexible guidelines or formula can be set out and it depends upon the facts and circumstances of each case wherein such powers should be exercised. As has already been observed, the present case pertains only to a dispute of civil nature and filing of a criminal complaint regarding the dispute of purely civil nature is nothing but abuse of the process of the Court and the said complaint, in fact, has been filed with an ulterior motive of persecuting and harassing the present petitioners. Under the said circumstances the Court could not become an instrument or tool in the hand of the non-applicant in getting the present petitioners persecuted and harassed for a dispute of purely civil nature.
13. In view of the said reasonings, the present petition is allowed and the complaint filed against the present non-applicant is quashed.