Delhi High Court
Surender Shedha vs State (Delhi Admn.) on 16 November, 1999
Equivalent citations: 2000IAD(DELHI)425
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. This revision is directed against the order dated 27.9.1993 passed by the Metropolitan Magistrate, Delhi directing framing of charges under Sections 379/403 I.P.C. against the petitioner.
2. Briefly stated, the prosecution case is that the complainant Mayank Kaushik and the petitioner started a partnership business in the year 1989. On 13.7.1989, the complainant purchased a Toaster plate Casting Die, from M/s. Satyam Engineering Works for Rs. 20,000/-. The die was given to M/s. S.R.S. Die Casting (Pvt.) Ltd. for manufacturing products on contract basis. The petitioner unauthorisedly used to get casting of toaster plates done from M/s. S.R.S. Die Casting (Pvt.) Ltd. As per prosecution case, on 2.4.1990, the petitioner, after making some payment to M/s. S.R.S. Die Casting (Pvt.) Ltd., took away the die with a promise to return the same to the complainant. However, the petitioner did not return it to the complainant. On 13.4.1990, the complainant lodged the FIR at the P.S. Jahangirpuri. Investigation pursuant to the said report culminated into submission of a charge-sheet under Section 406 I.P.C. against the petitioner. On consideration of the materials collected by the investigating agency, the learned Magistrate framed charges under Sections 379/403 I.P.C. against the petitioner. Aggrieved thereby, the petitioner has come up in revision before this Court.
3. Assailing validity of the impugned charges, learned counsel for the petitioner contended that the die in question was purchased by the petitioner and so the materials collected by the prosecuting agency do not make out may offence against the petitioner. Alternatively, it was contended that the learned Magistrate failed to consider that the partners are the joint owners of the partnership assets and so possession of the disputed die by the petitioner did not amount to any criminal act and such disputes can only be settled through a competent civil court.
4. It needs to be highlighted that the petitioner had filed a petition under Section 482 Cr. P.C. (Crl. M. (M). No. 1744/1990) for quashing the order dated 18.6.1990 passed by the Magistrate directing release of the disputed die on the spratnama of the complainant Mayank Kaushik and the order dated 28.5.1991 passed by Hon'ble R.L. Gupta, J. reveals that on 23.10.1990, the complainant had admitted before this Court that the said die had the name of the petitioner embossed on it. By the order dated 28.5.1991, passed by this Court, the disputed die was released on the supratnama of the petitioner. While passing the said order, the learned Single Judge took into consideration the joint affidavit dated 21.4.1990 of Radhey Shyam and Satinder Kumar, partners of M/s. Satyam Engineering Works, to the effect that the petitioner had purchased the disputed die from the said firm. In addition, the petitioner has also filed a copy of the plaint to show that he had filed a suit against the complainant and others for permanent injunction and declaration of title in respect of the disputed die. The copy of the plaint is on the record of the trial court. It is significant to mention that even the complainant has not stated in his F.I.R. that the petitioner had stolen the disputed die from his possession. Thus, the aforesaid circumstances clearly go to show that the charge under Section 379 I.P.C. against the petitioner is groundless. In order to at-
tract Section 403 I.P.C. the prosecution has to prove (i) that the property said to have been misappropriated, belonged to the complainant or to some one other than the accused, (ii) that the accused misappropriated that property and converted it to his own use, and (iii) that he did so dishonestly. As noticed earlier, the complainant had admitted before this Court that the disputed die had the name of the petitioner embossed on it. This circumstance alone knocks the bottom out of the prosecution case about the complainant's ownership of the disputed die. It is also undisputed that the petitioner had taken the disputed die from M/s. S.R.S. Die Casting (Pvt.) Ltd. after making payment of the amount due to him. There is no case of independent entrustment averred in the F.I.R. lodged by the complainant. That apart, it is the case of the prosecution that the petitioner and the complainant were partners of the Firm M/s. Cairns Coating. The property of the firm does not belong to the partners in any particular share. Until dissolution no partner could be said to own and possess any particular right or share in any specific item of partnership property. Thus, a partner has, undefined ownership alongwith the other partners over all the assets of the partnership. If he chooses to use any of them for his own purpose he may be accountable civil to the other partners. But he does not thereby commit any misappropriation. That being so, there was absolutely no justification for framing a charge under Section 403 I.P.C. against the petitioner.
5. In view of the above discussion, I am of the view that the present criminal proceedings should not continue. It is nothing but an abuse of the process of the Court and must be quashed. Consequently, the revision petition is allowed. The criminal proceedings being case No.12/1993 impugned herein are quashed. The petitioner's bail bonds are discharged.