IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16974 of 2001 NAND LAL PRASAD & ORS Versus STATE OF BIHAR & ANR with Cr.Misc. No.5936 of 2006 NAND LAL PRASAD & ORS Versus STATE OF BIHAR & ANR ----------- 4. 16.8.2010. Heard Sri Vindhyachal Singh, Advocate appearing for the petitioners (in Cr. Misc. No. 16974/01), Sri Ashwani Kumar Singh, Senior counsel for the petitioners (in Cr. Misc. No. 5936/06)and also heard Sri Nand Kumar, learned A.P.P. for the State. The two petitions have been heard together and are disposed of by this common order. The admitted facts are that the complainant of the two complaint petitions had created a partnership firm with the accused persons initially through a partnership deed executed on the 2nd day of April, 1991. It appears that in the deed, the Bhabhi of the accused, namely, petitioner, Nand Lal Prasad was one of the partners but subsequently, she quite the partnership and in her place petitioner Vivek Jaiswal was inducted by a fresh partnership deed executed on 1.4.1993. The two deeds are; - 2 - annexures-2 and 2/1 to the present two petitions. The allegations in complaint case No.555C of 1998 is that the terms of partnership business were set down by the first agreement which was brought into existence but subsequently, one of the partners, i.e., Ram Dulari Devi was eked out of the partnership and in her place, petitioner no.2, i.e., Vivek Jaiswal was inducted. It was stated that during that course, the petitioners, namely, Nand Lal Prasad and Vivek Jaiswal transacted business with different customers outside the knowledge of the complainant and got drafts of the value of Rs.7,000,00/- credited in the account of petitioner Nandlal Prasad in Agricultural Development Branch of the State Bank of India, Narkatiaganj without giving any accounts of receipt or expenditure in respect of the above amount. It was stated that the complainant placed his demand for accounting and payment of his share in the same, but that was never done on one pretext or the other and lastly, the two petitioners, i.e., Nand Lal Prasad and Vivek Jaiswal further transferred an amount of Rs.1,67,025/- from the partnership account to their own account in the State Bank of - 3 - India, Narkatiaganj. It was alleged that the two accused persons, i.e., the two petitioners Nand Lal Prasad and Vivek Jaiswal, misappropriated a sum of Rs.5,67,025/- on the above account and refused to settle account. Initially, the police was asked to investigate the case by registering a FIR and accordingly, Shikarpur P.S.Case No.65 of 1998 was registered which was found not true on investigation. However, the complainant filed a complaint petition by way of protest and that was taken up for hearing and this is how the order summoning the petitioners was passed on 25.4.2001. The contention is that the allegations are false and against the contents of the agreement which was signed by the complainant on 1.4.1993, as may appear from the copy of the agreement which has been placed on record as Annexure-2/1. As such, it was simply false to state that the earlier partner, namely, Ram Dulari Devi was substituted by the petitioners so as to inducting Vivek Jaiswal in her place. It was further submitted that the notices were sent repeatedly under the signature of petitioner, - 4 - Vivek Jaiswal as may appear from Annexure-3 series to the complainant requiring him to settle the accounts as the terms of agreement were to expire on a particular day, i.e., 30th of September,1996, but none of the notices were responded to and with an ulterior motive, the complaint petition was filed. It was further contended that the complainant filed a suit also with a relief of seeking a direction from the court to the petitioners to settle the accounts with the complainant in Title Suit No.98 of 1998. The petitioners filed a petition before the Sub- Judge pointing out to him that the suit was not maintainable and on order being passed by the lower court, a Civil Revision Petition No.392 of 1999 was preferred by the petitioner Nand Lal Prasad and that was disposed of by order dated 6.9.1999 and it was held that by virtue of Section 69 of the Partnership Act, the suit was not maintainable as the partnership firm was not registered. It was though held that if a fresh suit could be brought by the plaintiff that would not be barred on account of other causes of action. It was contended that the offences for which the petitioners were summoned, did not - 5 - appear made out inasmuch as the allegations could be making out a clear case of settling the account or going for the same through a properly framed suit. As regards the facts of Shikarpur P.S.Case No.65 of 1998, in which the police also submitted final form and in which the petitioners have been summoned on the basis of complaint petition by way of protest, it is indicated that the petitioner Nand Lal Prasad had operated an account in SBI, ADB, Ramnagar and he had received three bank drafts of the value of Rs.79,984/- of three different dates, but the petitioner Nand Lal Prasad asked the sender of the drafts to get the drafts reprepared so as to be encashed in State Bank of India, Agricultural Development Branch Ramnagar and accordingly, M/S Rajeev Traders, Khazanchi Road, Patna sent the three drafts of the above value to the petitioner, Nand Lal Prasad and that amount was credited by encashing the draft by the said petitioner into his account and in spite of several requests in that behalf, no accounting was made. As may appear from the statements of facts and the admitted facts, there was a - 6 - partnership firm setting down the terms of business and the manner in which the accounting was to be done. The allegations are that the petitioners misappropriated, firstly, over Rs.5,000,00/- and subsequently Rs.79,984/-. The allegations appear incredible inasmuch the allegation was that one of the partners, was dropped so as to induct the petitioner Vivek Jaiswal which does not appear true because the complainant himself was a signatory and a party to the subsequent agreement dated 1.4.1993. However, the facts are that the complainant was asked through appropriate communications by one of the petitioners, namely, Vivek Jaiswal which appear from Annexure-3 series to settle the account as per the terms of agreement which was to expire on 3.9.1996. Reminders were also sent and subsequently, for accounting purposes, an arbitrator was also appointed but avoiding all those proceedings and notices, the complainant framed facts to file two FIRs, out of which two complaint petitions arose by way of protest. When there is a term of agreement to run a business and the terms also speak the mode as to which the settling of the accounts has to be done by the - 7 - partners of the firm then in my considered view, neither an offence under Section 420 of the IPC nor any of misappropriation of the fund could be constituted inasmuch as it could be creating civil liabilities against a partner in favour of other partner. The liabilities could be settled by accounting and that could never be achieved through criminal proceedings. The continuance of the two proceeding, as such, are abuse of the process of the court. The two petitions are allowed. B.Kr. ( Dharnidhar Jha, J. )