THE HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION NO.10070 OF 2010 ORDER:- The petitioner is the accused in the F.I.R. in Crime No.157 of 2010 on the ﬁle of Kothapet Police Station, Guntur. The F.I.R. was registered against him for the offence under Sections 420, 406, 467, 468 and 471 I.P.C. 2. S r i G.Dharma Rao, learned Counsel for the petitioner/accused contended that the petitioner did not commit the oﬀences, that the oﬀences prima facie are not made out and that the civil dispute is being converted into a criminal case by the second respondent. 3. Sri K.Venu Gopal Reddy, learned Counsel for the second respondent contended that the petitioner committed cheating, forgery and criminal breach of trust; that the oﬀences alleged against him are prima facie made out; that the case shall go to trial and that the trial Court shall decide the truth of the rival contentions. 4. Inter alia, it is contended by the learned Counsel for the petitioner that the petitioner and the second respondent were partners of M/s.Tulasi Agrotech, Tenali. He, however, submitted that there was no partnership deed as such between them. The second respondent denied this contention. The second respondent contended that he has been running business as a dealer of Swaraj Tractors manufactured by Mahindra and Mahindra Limited. The petitioner’s Counsel also contended that M/s.Tulasi Agro Tech was indeed the dealer of Swaraj Tractors at Tenali and that while the petitioner invested 50% share capital, the second respondent invested only 15% of the capital with two other partners investing the balance. At any rate, the second respondent denied this part of the contention of the petitioner. 5. The petitioner has his own business in M/s.Likhit Sai Krishna Agencies, which sells Escort Tractors. M/s.Likhit Sai Krishna Agencies is situate at Guntur. It is the contention of the learned Counsel for the petitioner that there are many monetary transactions between M/s.Likhit Sai Krishna Agencies and M/s.Tulasi Agro Tech/Mahindra and Mahindra Limited. The petitioner placed the account statement of M/s.Tulasi Agro Tech showing transactions with M/s.Likhit Sai Krishna Agencies. 6. The controversy, however, is in respect of a cheque for a sum of Rs.3,83,388/-. The petitioner contends that the cheque was initially issued by the second respondent with the date as 11.11.2009 so that the petitioner can book a tractor with M/s.Likhit Sai Krishna Agencies. The date was subsequently altered as 21.07.2010. The full signature of the second respondent is found below the altered date in the cheque. It is the contention of the petitioner that the second respondent altered the date of the cheque as 21.07.2010. On the other hand, it is the case of the second respondent that he initially issued a cheque as dated 10.11.2009 and he later altered the same as 11.11.2009 and signed the corrected date. His case is that taking advantage of the signature of the second respondent, the petitioner altered the date on t h e cheque as 21.07.2010 and that he presented and encashed the same on 31.07.2010. 7. Learned Counsel for the petitioner, on the other hand, contended that there was no necessity for the petitioner to alter the date of the cheque from 11.11.2009 and that if the intention of the petitioner was mala ﬁde, the petitioner could have encashed the same within the period mentioned as claimed by the second respondent. I am afraid that this question cannot be considered in this application as it is a question of fact and cannot be decided in a petition under Section 482 Cr.P.C. 8. Admittedly, the second respondent ﬁlled up the amount column in the cheque and admittedly, the second respondent signed the cheque. It is the contention of the learned Counsel for the petitioner that where the second respondent ﬁlled up the amount in the cheque as well the date of the cheque, it cannot be considered that the petitioner was guilty of forgery. The learned Counsel for the second respondent, however, contended that although the amount as shown in the cheque continued to be the same, the petitioner altered the date of the cheque from 10.11.2009 to 21.07.2010 and that the same is forgery. I agree with the contention of the learned Counsel for the second respondent that this is a question of fact. Perhaps, it is the trial which should decide whether the cheque was forged or otherwise. 9. S r i G.Dharma Rao, learned Counsel for the petitioner placed reliance upon M/s.Suryalakshmi Cotton Mills Ltd. Vs. M/s.Rajvir Industries Ltd.[1]. In that case, it was observed that mere ﬁlling up of the blanks in the cheque per se would not amount to forgery. I, however, consider that this is not a case where the claim of the second respondent is that the petitioner ﬁlled up the blank columns in the cheque. It is his case that the petitioner altered the very date of the cheque. Consequently, the decision relied upon by the learned Counsel for the petitioner has no application. 10. It is contended by the learned Counsel for the second respondent that in the business of tractor distribution, each agency is allotted one code and that the code is always incorporated in the cheques. According to him, 3383 is the code allotted to M/s.Likhit Sai Krishna Agencies and that the cheques issued by the ﬁrm in connection with tractors always end up with the ﬁgure 3383. The learned Counsel for the second respondent drew my attention to various entries in the account sheet of M/s.Likhit Sai Krishna Agencies ending with the ﬁgure 3388. He pointed out that 3388 is relevant in showing that the cheque for Rs.3,83,388/- was intended to be a payment for booking Escort tractor with the agency of the petitioner. This again is a question of fact. I am afraid that I cannot go into such a question of fact in a petition under Section 482 Cr.P.C. 11. Learned Counsel for the petitioner contended ﬁrst that in view of the transactions between the petitioner and the second respondent, as evidenced by the accounts copy, the petitioner appropriated the amount covered by the cheque towards the dues of his transactions and that secondly, mere encashment of the cheque would not amount to misappropriation and cheating unless the petitioner had the intention right at the time of receiving the cheque. In support of his contention, the learned Counsel for the petitioner placed reliance upon T.Chandrasekhar v. State [2]. In that case, the petitioner received advance amounts with a promise to convey two plots to the respondent. The petitioner, however, did not abide by the terms and thereby, allegedly cheated the respondent. The Madras High Court considered that existence of fraudulent or dishonest intention of breaking initial promise right from the inception is a condition precedent to constitute an oﬀence of cheating. I n M/s.Suryalakshmi Cotton Mills Ltd. Vs. M/s.Rajvir Industries Ltd. (2008(1) Scale 331), the Supreme Court took the view that fraudulent or dishonest inducement on the part of the accused must be from the inception and not at a subsequent stage to constitute the oﬀence under Sections 415 and 420 I.P.C. It is the contention of the learned Counsel for the petitioner that there was no fraudulent intention on the part of the petitioner in encashing the cheque and that the second respondent did not prima facie show that there was dishonest intention on the part of the petitioner. 12. The second respondent ﬁrst pointed out that cheque of Rs.3,83,388/- with the ﬁnal ﬁgure of 3383 was obviously a cheque issued for booking a tractor. He secondly contended that as the petitioner altered the date as 21.07.2010, the intention of the petitioner to defraud the second respondent is patent. I am afraid once again that these questions are questions of fact. It would be appropriate for the trial Court to issue ﬁnding on these issues. It would not be just and proper for me to go into the detailed question of the intention of the petitioner in a petition of this nature. 13. The learned Counsel for the petitioner inter alia contended that disputes between partners cannot be treated as criminal disputes. In Naba Kumar Banerjee vs. State of W.B.[3], a complaint was lodged by one person against another in respect of money invested in business. A single Judge of the Calcutta High Court held that the dispute was civil in nature and that a petition under Sections 406 and 420 I.P.C. was not maintainable. In V.R.Dalal vs. Yogendra Naranji Thakkar[4], one of the partners of the ﬁrm allegedly conspired and cheated another partner depriving the other partner of his share of proﬁts by dissolving the ﬁrm behind the back of the complainant. The Supreme Court considered that the essential ingredients under Sections 405 and 420 I.P.C. were missing in the complaint and that the dispute between two partners, which is purely civil in nature, cannot be entertained under Section 420 I.P.C. even with the help of Section 120B I.P.C. 14. It may be noticed that the petitioner contended that the petitioner and the second respondent were partners of M/s.Tulasi Agro Tech, Tenali. The second respondent, on the other hand, disputes the same. Thus, the very partnership between the petitioner and the second respondent is in dispute. In such circumstances, the petition cannot be accepted on the ground that it is a dispute between two partners and that it should consequently be treated as civil dispute in nature. As already pointed out, there are several controversies in this case, which are pure questions of fact, I am afraid that they cannot be gone into in this petition. It is only the trial Court which can decide whether the case by the second respondent against the petitioner is ultimately made out or otherwise. Therefore, I see no merits in this case. The petition is liable to be dismissed. 15. The Criminal Petition is, accordingly, dismissed. _________________ K.G.SHANKAR,J 30th November, 2011 AMD THE HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION NO.10070 OF 2010 Date: 30.11.2011 AMD [1] 2008(1) SCALE 331 [2] 2011 CRI.L.J.3444 3 2008 CRI.L.J.1180 [4] 2009 (1) ALD (Crl.) 83 (SC)