Penal Code, 1860 – Ss. 406, 420, 323, 34 – Criminal Misappropriation or Breach of Trust – Partnership – the complaint was lodged fourteen (14) years after the original date of partnership without accounting for the delay and having failed to specify any recent dates on which the alleged offence of cheating/misappropriation were allegedly committed by petitioner no. 1, the motive behind the FIR becomes very questionable since it has not even been mentioned in the complaint that the complainant at any time in writing demanded production of the Partnership accounts or Books during the long period of 14 years. His allegation of having verbally made such demand only on 20.03.2012 without any explanation of the previous delay also hits his case badly, specially considering that he seeks to impute the allegations of criminal misappropriation/ breach of trust upon his admitted Partner in respect of the Partnership money, which, as has been observed earlier, is not legally sustainable. For the aforesaid reasons continuation of the criminal proceedings against the petitioners would be a clear abuse of the process of Court.
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction) Appellate Side
Present: The Hon’ble Justice Sudip Ahluwalia
Judgment On : 20-05-2016
C.R.R. 3393 of 2014
Smt. Malabika Mondal & Anr. Vs. The State of West Bengal & Anr.
For the Petitioners : Mr. Shiladitya Sanyal, Mr. Abhijit Adhya; For the State : Mr. Ayan Bhattacharyya, For the O.P. No. 2 : Mr. Debashis Roy, Mr. Somopriya Chaudhury, Mr. Rajiv Lochan Chakraborty, Mr. Debapratim Guha, Mr. Arnab Sinha.
SUDIP AHLUWALIA, J. – In this Revisional application the petitioners have prayed for quashing the proceedings arising out of Thakurpukur P.S. Case No. 202 of 2012 dated 05.05.12, pending in the Court of the Ld. Additional Chief Judicial Magistrate at Alipore, South 24 Parganas.
2. The Opposite Party No. 2/De facto-complainant had filed the petition of complaint in the Ld. Court below under Section 156(3) of the Cr.P.C. The aforesaid FIR was thereafter drawn up under
Sections 406/420/323/34 of the IPC.
In the complaint it had been alleged that the complaint and the petitioner no. 1 from their respective joint funds had started an Educational business under the name and style of ‘Sabuj Sathi’ in 1998. Thereafter the petitioner no. 1 took charge of as Principal of the school with consent of the complainant. She is then alleged to have deposited the School collections towards tuition fees, development fees, selling of books and uniforms to the students etc. in her own personal account and not in the joint School account opened with the Punjab National Bank, Ketopool Branch, Sakuntala Park, Kolkata- 700 061. She is also alleged to have instructed the parents of the students to make all payments to her in her personal name in order to cheat the complainant of his dues. In this manner she is alleged to have misappropriated money to the tune of Rs. 50,00,000/- (Fifty lacs) or more in connivance the petitioner no. 2 who is her own son. The complainant had further alleged that on 20.03.2012 he requested the petitioner no. 1 to produce the Books of Account relating to the profit and loss for the period between 2001 to 2012. But she refused to do so. On the contrary she and her son (petitioner no. 2) allegedly used filthy language against the complainant and forcibly ousted him from the premises by means of physical assault after which he was obliged to lodge a General Diary in Thakurpukur P.S., and subsequently filed the petition under Section 156(3).
3. After completion of investigations the Police submitted charge sheet against the petitioners under Sections 406/420/323/34 of the IPC. They have both challenged the same in this Revisional Application. The specific assertion of the petitioners is that the complaint/FIR lodged against them was false and motivated and that the complainant had suppressed the fact that he had voluntarily withdrawn himself from the partnership. To support this contention, the petitioners have mentioned various facts and incidents narrated in Para 5 the Revisional Application the relevant ones of which are noted below –
a) On July 28, 1998 the parties entered into a Deed of Partnership for the purpose of carrying on the business of running the educational institution namely “Sabuj Sathi”.
b) The initial capital of the institution “Sabuj Sathi” consisted of Rs. 40,000/- contributed jointly by both parties. The opposite party No. 2 had also invested Rs. 1,00,000/- in cash, at the time of setting up of the institution which was later refunded by the petitioner No. 1 on dissolution of the partnership.
c) The institution was set up in a rented house at 175, Biren Roy Road (West), Kolkata – 700061, P.S. Sarsuna, South 24 Parganas.
d) Under the Agreement (Annexure-P3), the petitioner No. 1 was authorized to run the institution and has been running the said institution by herself from its very inception.
e) The said deed of July, 1998 was however cancelled by way of the complainant’s declaration dated December 2, 1998 (Annexure -P4).
f) A fresh Agreement was thereafter made between them on September 27, 2002(Annexure-P5).
g) On March 10, 2003, the complainant finally executed a Deed of cancellation of Partnership (Annexure-P6).
h) He then wrote to the Municipal Authority seeking cancellation of his name from the institution’s Trade Licence due to ‘personal reason’ vide letter dated March 31, 2003 (Annexure – P7).
i) On June 26, 2003 the trade licence department of the Kolkata Municipal Corporation charged a cancellation fee of Rs. 100/- for deleting the complainant’s name and issued a fresh Trade Licence in the name of the petitioner No. 1 as the sole proprietor thereof (Annexure-P8).
j) After retiring from the partnership, the tenancy agreement was also renewed on March 12, 2003 in the name of the petitioner No. 1 by her landlady.
k) Thus the petitioner No. 1 since the beginning of the institution, particularly since 2003, has been managing the said institution on her own and after the dissolution of the partnership on March 10, 2003 has been the sole proprietor of the said institution as would, inter alia, appear from the record of the Kolkata Municipal Corporation.”
4. The petitioners have also stated that the complainant had separately filed an application under Section 11 of the Arbitration and Conciliation Act being A.P No. 1068 of 2014, in which they have already appeared and filed their written objections after which the matter is pending its final adjudication. It is also the case of the petitioner no. 1 that since the beginning of the Institution and particularly since 2003, she has been managing the same of her own after dissolution of the Partnership on March 10, 2003 and is now the sole proprietor of the said institution.
5. Both the petitioners therefore contend that the aforesaid criminal proceedings against them are liable to be quashed since the complainant has wrongly sought to give a criminal colour to what is essentially a civil cause of action, with an ulterior motive for “wrecking vengeance with a view to spite them due to private and personal grudge”. They have also placed certain Judgments before this Court to the effect that no case of criminal misappropriation or breach of trust lies against a person who is admittedly a partner of the complainant.