*HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU +CRIMINAL PETITION NO.3327 OF 2010 AND BATCH DATE: 18.06.2010 +CRIMINAL PETITION NO.3327 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3328 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3329 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3502 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3504 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3505 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3506 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3507 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3513 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3514 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents +CRIMINAL PETITION NO.3515 OF 2010 Between: #P. Shoba Rani and another …….Petitioners And: $State of A.P., rep. by its PP and another ……Respondents !Counsel for the Petitioners: M/s. Vinod Kumar Deshpande Counsel for the 1st respondent: Public Prosecutor Counsel for the 2nd respondent: ---- <Gist : >Head Note: ? Cases referred: 1. 2001 (1) ALD (Crl) 894 (AP) 2. (2009) 3 Supreme Court Cases 78 3. 2009 TLPRE 833 4. 2009(5) SCALE 418 HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.3327 OF 2010 AND BATCH DATE: 18.06.2010 CRIMINAL PETITION NO.3327 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3328 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3329 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3502 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3504 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3505 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3506 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3507 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3513 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3514 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents CRIMINAL PETITION NO.3515 OF 2010 Between: P. Shoba Rani and another …….Petitioners And: State of A.P., rep. by its PP and another ……Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.3327 OF 2010 AND BATCH COMMAN ORDER: 1. The petitioners 1 and 2 in this batch of petitions are A-2 and A-5 in Crime Nos.91, 88, 95, 97, 98, 89, 92,87, 90, 96, 93 of 2010 of Dharmavaram Police Station, Anantapur district and they are accused of offences punishable under Sections 403, 406, 409 and 420 IPC. The 2nd respondent in all these petitions filed private complaints in the court of Judicial Magistrate of the First Class, Dharmavaram and they were referred by the Magistrate to the police for investigation and report under Section 156(3) Cr.P.C. The complainants are Silk Sarees Merchants at Dharmavaram. It is alleged that the accused are doing cloth business including silk sarees under various names and that the accused purchased Silk Sarees from the respective complainants to the following extent in each case under several invoices:- l.No. Criminal Petition No. Crime No. Value of Invoices Date of Invoice 3327 of 2010 91 of 2010 Rs.1,11,825/- Rs.74,000/- 02.04.2007 3328 of 2010 88 of 2010 Rs.1,38,100/- 27.02.2007 3329 of 2010 95 of 2010 Rs.59,600/- Rs.55,600/- 06.07.2006 28.12.2006 3502 of 2010 97 of 2010 Rs.3,96,750/- Rs.1,89,550/- Rs.1,30,000/- 27.10.2006 16.02.2007 03.08.2007 3504 of 2010 98 of 2010 Rs.2,24,650/- Rs.2,60,950/- Rs.2,26,900/- Rs.73,000/- Rs.1,60,650/- Rs.2,51,250/- 26.12.2006 26.12.2006 07.04.2007 31.07.2007 02.08.2007 21.10.2007 3505 of 2010 89 of 2010 Rs.1,49,160/- 16.04.2007 3506 of 2010 92 of 2010 Rs.41,400/- Rs.94,200/- Rs.81,200/- 08.11.2006 06.02.2007 01.08.2007 3507 of 2010 87 of 2010 Rs.39,300/- Rs.88,400/- Rs.38,000/- 08.08.2007 24.10.2007 14.11.2007 3513 of 2010 90 of 2010 Rs.1,31,450/- 30.05.2007 0 3514 of 2010 96 of 2010 Rs.13,800/- Rs.45,700/- Rs.36,800/- 08.08.2007 20.10.2007 24.11.2007 1 3515 of 2010 93 of 2010 Rs.76,000/- Rs.90,500/- 04.10.2007 12.11.2007 It is further alleged that the accused represented that they are highly reputed persons and are having huge properties and are making huge profits and that the accused promised to pay entire bill amounts within one month and thereby induced the complainants for delivery of goods on credit basis and that the accused failed to pay amount within one month and that when the accused failed to pay amount within one month and that when the accused were requested on telephone and personally by going to Karimnagar number of times, the accused were postponing payment of value of goods on some pretext or the other. It is further alleged that recently the complainants came to know that the accused were trying to wind up their shop and shift stocks in their shop to a place convenient to them and that it is revealed that the accused have absolutely no intention to repay the amount and the accused with dishonest intention and playing fraud on the complainants without any intention to repay the amounts, have misappropriated the goods for themselves with a view to unjustly enrich themselves and to cause wrongful loss to the complainants. 2. It is contended by the petitioners’ counsel that allegations in the private complaints are civil in nature and that even if those allegations are taken on their face value, they do not disclose any of the offences for which the crimes were registered by the police and that the petitioners are no more partners in the firms as they retired from the partnerships after invoking Section 32 of the Partnership Act and that the transactions were carried out by A-1 and A-3 only. 3. The petitioners’ counsel filed Photostat copy of paper publications dated 02.06.2008 which were published on behalf of the petitioners about retirement of the petitioners 1 and 2 from M/s. Neelakantam and Sons, M/s. Sri Sai Saree Center and M/s. Neelakantam Raymond Retail Shop of Karimnagar on 27.11.2007 by mutual agreement. It is not known whether the above firms were registered firms and whether the alleged changes in composition of partners of those firms on 27.11.2007 were intimated to the Registrar of firms, Hyderabad and if so, on what date and whether the Registrar of firms carried out the above changes in the Registers maintained by his office and if so, on what date. This is purely a question of fact which this Court cannot decide on production of mere public notices printed in some news paper. Even though the public notices are dated 02.06.2008, it is not known on what date those publications were made and in which paper. Therefore, this Court cannot rely upon those public notices and cannot grant relief to the petitioners from these crimes on that basis. 4. Placing reliance on Vunna Visali v. State of A.P.,[1], it is contended by the petitioners’ counsel that a sleeping partner of a firm is not criminally liable for acts of the partnership firm. In Vunna Visali (1 supra), the question was whether on dissolution of previous partnership which was being managed by the defacto- complainant and another partner by operation of bank account in the erstwhile firm, a sleeping partner is also liable for offences under Sections 406, 420 and 477 IPC. It was a case relating to dispute among partners. The question whether the petitioners 1 and 2/A-2 and A-5 are sleeping parents or not is one of fact. It is for the petitioners to raise the said defense and prove the same in the trial court during trial by leading evidence in support thereof, in case the police find charge sheet against them also. Even during investigation, it is open to the petitioners to place the material before the investigation officer to show whether the petitioners are sleeping partners or working partners in the firm. It is further contended by the petitioners’ counsel that the 1st petitioner is only a house wife and the 2nd petitioner is a junior member of the family and they could not have actively participated in the business run by the firm. It is of common knowledge that though in some families lady members remain in the house restricting themselves to house hold activities, at the same time, it is common in trading families that female members of the family actively participate in the business even by sitting at counters of the shop. So one cannot presume in one way or the other, in the absence of proof of activity of female members and junior members of the family. 5) In V.Y. Jose v. State of Gujarat[2], the Supreme Court held:- “Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.” It was further observed therein that Section 482 Cr.P.C., serves salutary purpose that a person should not undergo harassment of litigation for a number of years although no case has been made out against him and that a matter which essentially involves dispute of a civil nature should not be allowed to be subject-matter of a criminal offence, the latter being a short cut of executing a decree which is non existence and that the superior courts with a view to maintain purity in the administration of justice should not allow abuse of process of court. 6) In Dalip Kaur v. Jagnar Singh[3], the Supreme Court its previous decision quoted Hira Lal v. State of U.P.[4] with approval, wherein it was held that one of the grounds on which interference under Section 482 Cr.P.C is permissible is that allegations contained in the complaint/petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. In the light of the above pronouncements of the Supreme Court, I propose to again scrutinize the above allegations in the complaints. Even though in the initial paragraphs relating to purchase of Silk Sarees by the accused from the complainants under several vouchers promising to pay value thereof within a month, the accused did not honour their promise, appear to be civil in nature; but the latter allegations that the accused tried to wind up their business and move away stocks from their shops to a place of their convenience, perhaps out of reach of the creditors, would go to show that the accused had no intention to pay value of the goods purchased, brings the case within the criminal activity of the accused. Whether the accused had dishonest or fraudulent intention at the time of inception of the transactions, is a question of fact, which has to be gathered by subsequent conduct of the accused in relation to these transactions. It is not as if the accused made any part payments towards value of the goods purchased under several vouchers. Without making any payment at all, the accused wanted to wind up their business and secret the stocks to keep the creditors out of reach of the same. This conduct would indicate that the accused had bad intention i.e., dishonest or fraudulent intention even from the time of inception of the transactions. In that view of the matter, this Court is of the opinion that these are not fit cases to stop investigation of these crimes at their threshold. 5. In the result, all the Criminal Petitions are dismissed. ___________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: 18.06.2010. Note: L.R Copy to be marked (b/o)GK. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.3327 OF 2010 AND BATCH Date:18.06.2010 Gk. [1] 2001 (1) ALD (Crl) 894 (AP) [2] (2009) 3 Supreme Court Cases 78 [3] 2009 TLPRE 833 [4] 2009(5) SCALE 418