Mohinder Singh and Another vs The State of Haryana and Another

J.B. Garg, J.—Mohinder Singh and Tek Singh of Palwal have moved the present petition u/s 482 of the Code of Criminal Procedure and challenged the summoning order dated 15-6-1992 passed in a complaint instituted by their father Lachhman Singh under Sections 420, 467, 468, 471, 379, 406 447 and 448 read with Section 34 of the Indian Penal Code.

The petitioners have alleged that they are the two sons of Lachhman Singh complainant and a partnership firm was constitute ed on 7-1-1977 known as M/s Atma Agricultural Implements Industries, G. T. Road, Palwal ; that differences arose and the partnership was dissolved on 31-3-1981 and deed of dissolution is Annexure P-3.

The learned counsel for the petitioners has described the entire history and has referred to the deed of dissolution of partnership dated 31-3-1981 which is Annexure P-3. A perusal thereof shows that a sum of Rs. 9,000/- was paid in cash to the old father on 31-3-1981 and the partnership was dissolved in accordance with the terms contained therein and the father voluntarily retired from the aforesaid partnership. The father Lachhman Singh instituted a complaint under Sections 416, 418, 420, 464, 467, 506 and 323 read with Section 34 of the Indian Penal Code in the Court of Sub Divisional Judicial Magistrate, Palwal but it was dismissed for non-prosecution on 11-10-1983 (Annexure P-4). A copy of the complaint is Annexure P-5. Lachhman Singh also instituted a suit for declaration and permanent injunction describing himself as proprietor of M/s. Atma Agricultural Implements Industries, G. T. Road Palwal (Annexure P-6) and his application for temporary injunction was dismissed by Sub Judge Ist Class, Palwal on 10-5-1982 (Annexure P-7) Lachhman Singh also attempted an appeal but it was dismissed by the Additional District Judge, Faridabad on 28-8-1992 (Annexure P-8) and his suit was dismissed as withdrawn after recording the statement of his counsel on 7-10 1982 (Annexure P-9).

The learned counsel for the petitioner has pointed out that the present complaint Annexure P-10, is also repetition of the old litigation referred to above and in para No. 7 of the complaint the main allegation of the complainant, the father, is that he has been paid only paltry amount of Rs. 9000/- at the time of dissolution.

The question of criminal liability of a partner under Sections 405 and 406 of the Indian Penal Code came into consideration before a Full Bench in Bhuban Mohan Das Vs. Surendra Mohan Das, and it was held that a charge u/s 406 of the Indian Penal Code could not be framed, against a partner in respect of the property belonging to both of them as partners and the proceedings pending before the Judicial Magistrate Howrab. were quashed. In the case now in hand also, it is held that the father who admittedly a partner could not prosecute the two sons, the present petitioner. The impugned summoning order and the proceeding arising therefrom are hereby quashed.