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CR.MA/891120/2004 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8911 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JYOTIBEN
KEDAR TAMBE & 3 - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
JM PANCHAL FOR MR KJ PANCHAL for
Applicant(s) : 1 - 4.
MR AJ DESAI, APP for Respondent(s) : 1,
MR
KM PARIKH for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
Date
: 17/09/2008
ORAL
JUDGMENT
The
present petitioners Nos.1,2 and 4-original accused Nos.5,6 and 8,
are the partners of the partnership firm namely, M/s Narmada Trading
Company, which is original accused No.1 whereas the petitioner
No.3-original accused No.7 is a guarantor.
It
is the case of the petitioners that the original accused No.1-M/s
Narmada Trading Company (hereinafter referred to as ‘the Company’
for short) has taken a loan from the complainant bank, the
respondent No.2 herein. As the Company could not pay the amount in
time, the complainant bank filed Lavad Suit No.52 of 2004 in the
Board of Nominees Court for recovery of dues. The present
applicants also appeared in the said suit as defendants. The
complainant bank had also taken out summons for judgment wherein the
partners, who are present petitioner Nos.1,2 and 4, have taken a
specific defence that they are sleeping partners and had joined in
the partnership firm only for the purpose of taking benefit of the
partnership firm. In support of that, they have also annexed copy
of the partnership deed along with this petition.
Considering
the above aspects, unconditional leave was granted by the Board of
Nominees Court on 26-3-2004 and, thereafter, the complainant had
filed criminal complaint directly with the Raopura Police Station,
Vadodara City, for the offence punishable under Secs.406, 409, 420,
120(B) and 114 of IPC registered as Raopura Police Station
I.C.R.No.I-162 of 2004.
Heard
learned counsel for the petitioners, Mr.J.M.Panchal for
Mr.K.J.Panchal, learned APP, Mr.A.J.Desai for the respondent No.1
and learned counsel, Mr.K.M.Parikh for the respondent
No.2-complainant bank.
It
is the argument advanced by the learned counsel for the petitioners
that since unconditional leave was granted, as a counter blast and
to pressurize the partnership firm and its partners, the present
complaint has been filed. Lastly it is argued that he is not
pressing the present petition qua the guarantor i.e. the petitioner
No.3. As far as the other petitioners are concerned, they are lady
partners and according to him, they are sleeping partners. In
support of that, he has shown copy of the partnership deed and
submitted that it is with an ulterior motive and just to pressurize
the partners and their partnership firm, present complaint has been
filed and, therefore, it is requested that the complaint may be
quashed qua the petitioner Nos.1,2 and 4.
Learned
counsel for the complainant bank, Mr.K.M.Parikh, has objected
mainly on the ground that civil as well as criminal complaints can
be filed at a time and both are independently maintainable. It is
also argued that he has not disputed the facts narrated by the
otherside. It is lastly argued that when the prima facie ingredients
of the offence has been reflected in the complaint, there is no
reason to quash the same even qua the above referred persons.
I
have gone through the complaint together with the contents raised by
the learned counsel for the respective parties.
It
is not disputed that the petitioner Nos.1,2 and 4 are lady partners
of partnership firm namely, M/s Narmada Trading Company-original
accused No.1 and are sleeping partners. In support of that, they
have also produced the partnership deed which also prima facie
supports the say of the petitioners. I am not entering into the
above aspects. Facts remain that they have taken the same plea in
the Board of Nominees Court and on that basis, unconditional leave
was granted to the present petitioners and, thereafter, admittedly
on 9-7-2004, the present complaint has been filed as a counter
blast. Not only that, as argued by the learned counsel for the
petitioners, civil dispute is also settled between the parties
amicably on a one time settlement basis whereby the partnership firm
and its partners have agreed to pay Rs.71.00 lakhs to the
complainant bank. Out of that, Rs.51.10 lakhs has been paid and now
only Rs.19.00 lakhs remain to be paid and according to him, qua that
also, valuable property has been given to the complainant bank.
Keeping
in mind the aforesaid facts and circumstances and also the facts
that it is civil dispute which has been tried to be converted by the
complainant into a criminal one, the complaint qua the petitioner
Nos.1,2 and 4 being lady and sleeping partners of the partnership
firm is required to be quashed.
Under
the circumstances, this petition is partly allowed. The impugned
complaint being C.R.No.I-162 of 2004 registered with Raopura Police
Station, Vadodara City, qua petitioner Nos.1,2 and 4 is quashed.
Rule is made absolute qua the petitioner Nos.1,2 and 4.
This
petition qua the petitioner No.3 however is disposed of as not
pressed. Rule qua the petitioner No.3 is discharged.
(R.P.DHOLAKIA,J)
radhan/
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