Mangat Rai vs Ram Lal Gupta

V.K. Bali, J. (Oral)

This order shall dispose of seven connected matters bearing Criminal Misc. Nos. 5771M, 6274M, 6276M, 6278M, 6280M, 6282M and 6284M of 1992 as the litigation is between the same parties and point involved in all the matters is also the same. The facts have, however, been extracted from Crl. Misc. No. 5771M of l992.

Brief facts of the case are that an unregistered firm M/s. Gupta & Company, Bazar Bansanwala, Jalandhar, was in existence prior to 1959. Petitioner is admittedly the partner of the said firm. One Sat Pal also joined the firm as a partner. The third partner was Ram Lal Gupta, complainantrespondent herein. The main business of the firm consisting of three partners aforesaid was purchase of compensation claims from displaced persons, who had migrated to India from the areas now forming part of Pakistan. After purchasing the verified claim of displaced persons with regard to property abandoned by them in Pakistan, they would sell the same when it was actually allotted to the displaced persons. In this course of business the claimant would execute general power of attorney and an agreement to sell in favour of either of the partners or all the partners of the firm.

Grouse of the respondent in the complaint filed by him, subjectmatter of quashing before this Court, is that, he being one of the partners had not been informed of the agreements of sale or the sale in question nor his consent was obtained by the petitioner or other partner of the firm. In the manner aforesaid, the petitioner had misappropriated the sale proceeds himself thus, depriving him of his profits. Prior in point of time, however, it is proved from the records of the case, complainant filed many civil suits as attorney of prospective vendees. All such civil suits filed by him were dismissed. Civil suit bearing No. 402 of 1987 was filed on 8.10.1987 and it was dismissed on 21.10.1991. Whereas, aforesaid suit was dismissed after contest, other suits were either dismissed for nonprosecution or they were dismissed as having been withdrawn. It is somewhere preceding the decree in the civil suit aforesaid that complainant Ram Lal Gupta filed a complaint under Sections 465 and 467 of the Indian Penal Code. Broadly, the allegations in the complaint were the same as were the subjectmatter of civil suits.

Learned counsel for the petitioners vehemently contends that the complaint which had been filed after about a period of 30 years from the agreements of sale, all the agreements being between 1959 to 1965 and with regard to which sale deeds were executed between 1990 and 1991, were devoid of merit in view of the Civil Court holding therein that all the partners including the petitioner were individually entitled to sell the properties allotted to displaced persons. It is, thus, argued that after having lost the battle before civil Court, the complainant has only one motive and, that it is to harass the petitioner.

Mr. Gupta, learned Senior Advocate, however, contends that so far only summoning order based upon assertions made in the complaint had been passed and the Magistrate dealing with the matter was well within his right to issue summoning order as by that stage defence of petitioner could not be looked into. He further contends that the complaint or FIR as the case may be, can be quashed only if, from the reading thereof, no offence is made out as also that at this stage documentary evidence cannot be taken into consideration. For his aforesaid contention, learned counsel relies on Inderjit Singh v. Union of India and others, 1991(3) RCR 636 and Smt. Nirmal Bhasin and others v. Smt. Alka Bhasin, 1989(1) All India Criminal Law Reporter 520.

After hearing learned counsel for the parties and going through the records of the case, this Court is of the considered view that any further prosecution of the petitioner would be an exercise in futility and would, thus, be an abuse of process of the Court. It requires to be mentioned that the averments made in the petition under Section 482 Cr.P.C. and, in particular, with regard to filing of civil suits by complainantrespondent herein and the result thereof, have not been denied. It could not possibly be denied as the same are supported by documentary evidence placed on records clearly manifesting therein that whereas one suit was dismissed after proper trial on merit other suits were, dismissed either in default or were dismissed as having been withdrawn. Once the position of facts is admitted and on such admitted facts, the FIR or complaint as the case may be, cannot possibly result in conviction of an accused, it will be an abuse of the process of law to proceed with such case. As mentioned above, with regard to the same very allegations, prior in point of time, complainant filed civil suits in which categorical finding was recorded by the civil Court that petitioner being partner of the firm was well within his right to execute the agreement of sale or sale deeds as such. That finding of the civil Court has attained finality. The moment the criminal Court dealing with the matter is confronted with the finding recorded by the Civil Court, it shall have no option but for to acquit the petitioner. That being the position, all the petitions are allowed. Consequently, complaints culminating into summoning order art quashed.