Gujarat High Court
Jyotiben vs The on 17 September, 2008
Author: R.P.Dholakia
Bench: R.P.Dholakia
Gujarat High Court Case Information System
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CR.MA/891120/2004 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8911 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JYOTIBEN
KEDAR TAMBE & 3 - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
JM PANCHAL FOR MR KJ PANCHAL for
Applicant(s) : 1 - 4.
MR AJ DESAI, APP for Respondent(s) : 1,
MR
KM PARIKH for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
Date
: 17/09/2008
ORAL
JUDGMENT
The present petitioners Nos.1,2 and 4-original accused Nos.5,6 and 8, are the partners of the partnership firm namely, M/s Narmada Trading Company, which is original accused No.1 whereas the petitioner No.3-original accused No.7 is a guarantor.
It is the case of the petitioners that the original accused No.1-M/s Narmada Trading Company (hereinafter referred to as 'the Company' for short) has taken a loan from the complainant bank, the respondent No.2 herein. As the Company could not pay the amount in time, the complainant bank filed Lavad Suit No.52 of 2004 in the Board of Nominees Court for recovery of dues. The present applicants also appeared in the said suit as defendants. The complainant bank had also taken out summons for judgment wherein the partners, who are present petitioner Nos.1,2 and 4, have taken a specific defence that they are sleeping partners and had joined in the partnership firm only for the purpose of taking benefit of the partnership firm. In support of that, they have also annexed copy of the partnership deed along with this petition.
Considering the above aspects, unconditional leave was granted by the Board of Nominees Court on 26-3-2004 and, thereafter, the complainant had filed criminal complaint directly with the Raopura Police Station, Vadodara City, for the offence punishable under Secs.406, 409, 420, 120(B) and 114 of IPC registered as Raopura Police Station I.C.R.No.I-162 of 2004.
Heard learned counsel for the petitioners, Mr.J.M.Panchal for Mr.K.J.Panchal, learned APP, Mr.A.J.Desai for the respondent No.1 and learned counsel, Mr.K.M.Parikh for the respondent No.2-complainant bank.
It is the argument advanced by the learned counsel for the petitioners that since unconditional leave was granted, as a counter blast and to pressurize the partnership firm and its partners, the present complaint has been filed. Lastly it is argued that he is not pressing the present petition qua the guarantor i.e. the petitioner No.3. As far as the other petitioners are concerned, they are lady partners and according to him, they are sleeping partners. In support of that, he has shown copy of the partnership deed and submitted that it is with an ulterior motive and just to pressurize the partners and their partnership firm, present complaint has been filed and, therefore, it is requested that the complaint may be quashed qua the petitioner Nos.1,2 and 4.
Learned counsel for the complainant bank, Mr.K.M.Parikh, has objected mainly on the ground that civil as well as criminal complaints can be filed at a time and both are independently maintainable. It is also argued that he has not disputed the facts narrated by the otherside. It is lastly argued that when the prima facie ingredients of the offence has been reflected in the complaint, there is no reason to quash the same even qua the above referred persons.
I have gone through the complaint together with the contents raised by the learned counsel for the respective parties.
It is not disputed that the petitioner Nos.1,2 and 4 are lady partners of partnership firm namely, M/s Narmada Trading Company-original accused No.1 and are sleeping partners. In support of that, they have also produced the partnership deed which also prima facie supports the say of the petitioners. I am not entering into the above aspects. Facts remain that they have taken the same plea in the Board of Nominees Court and on that basis, unconditional leave was granted to the present petitioners and, thereafter, admittedly on 9-7-2004, the present complaint has been filed as a counter blast. Not only that, as argued by the learned counsel for the petitioners, civil dispute is also settled between the parties amicably on a one time settlement basis whereby the partnership firm and its partners have agreed to pay Rs.71.00 lakhs to the complainant bank. Out of that, Rs.51.10 lakhs has been paid and now only Rs.19.00 lakhs remain to be paid and according to him, qua that also, valuable property has been given to the complainant bank.
Keeping in mind the aforesaid facts and circumstances and also the facts that it is civil dispute which has been tried to be converted by the complainant into a criminal one, the complaint qua the petitioner Nos.1,2 and 4 being lady and sleeping partners of the partnership firm is required to be quashed.
Under the circumstances, this petition is partly allowed. The impugned complaint being C.R.No.I-162 of 2004 registered with Raopura Police Station, Vadodara City, qua petitioner Nos.1,2 and 4 is quashed. Rule is made absolute qua the petitioner Nos.1,2 and 4.
This petition qua the petitioner No.3 however is disposed of as not pressed. Rule qua the petitioner No.3 is discharged.
(R.P.DHOLAKIA,J) radhan/ Top