S.C. Mital, J.@mdashThis petition u/s 482 of the Code of Criminal Procedure is directed against the orders Annexures P. 5 and P. 7 of the trial Magistrate. By the former, he summoned the accused-persons (petitioners in this Court) in consequence, of the complaint u/s 477-A Indian Penal Code, filed against them by Ram Bhagat (respondent in this Court). By the latter order (Annexure P. 7) the trial Magistrate dismissed the objections of the accused-persons to proceed with the case. In the present petition, the prayer is for quashing of the said two orders and the entire proceedings.
2. The relevant facts are that Ram Bhagat (respondent) filed the complaint u/s 477-A, Indian Penal Code, on the allegations that he and the three petitioners, namely, Mangat Ram, DauDayal and Mita Nand were partners, with equal shares of firm M/s. Bharat Brick Kiln Company, Sira Ram Bhagat used to reside at Calcutta where he was carrying on business. The business of the said firm was carried on by rest of the three partners. Up to 20th October, 1977, profit of Rs. 87622/- was earned. Ram Bhagat''s share used to be remitted to him by bank drafts In January 1979, he came to Sirsa and asked for the inspection of the account books of the firm but the same were not shown to him on the pretext that the account books were lying with the Sales Tax Department On his return to Calcutta, Ram Bhagat on 13th June, 1979, wrote to Mangat Ram about his share in the profits but did not receive any reply. In these circumstances, Ram Bhagat was constrained to dissolve the firm with effect from 30th June, 1979. After lapse of some time, Ram Bhagat came to Sirsa and met Mangat Ram who said that Ram Bhagat had already been paid Rs. 20,000/- on 20th January, 1978, and Rs. 30,000/- on 17th September, 1978, whereas in fact the said amounts were not paid to Ram Bhagat Lastly, it is alleged that payment of the total of the said two amounts, i.e., Rs. 50,000/- was shown in the account books by falsifying the entries.
3. It further deserves mention that on 10th December, 1979, Ram Bhagat, filed suit for rendition of accounts of the above-said dissolved firm and for recovery of the amount which was to be found due to him against the other three partners (accused-petitioners) vide copy of the plaint Annexure P. 3. During the pendency of the suit, as per terms of the partnership deed (Annexure P.1), the dispute was referred to three arbitrators, one of whom was appointed by Ram Bhagat. The arbitrators gave award (Annexure P. 4) on 17th July, 1980. They unanimously rejected the claim of Rs. 20,000/- of Ram Bhagat but allowed him Rs. 30,000/- as his share of the profits of the firm. The objections filed by Ram Bhagat to the award were rejected by the trial Court which made it rule of the Court.
4. Learned Counsel for Ram Bhagat respondent did not dispute the filing of the above said suit, the passing of the award by the arbitrator unanimously and the award, having been made a rule of the Court. All the same, the contended that at this stage of the Criminal case pending before the trial Magistrate, the probable defence of the petitioners may not be taken into account at all Doubtless, for quashing the criminal proceedings, this Court has normally to confine itself to the allegations made in the complaint and the evidence, if any, adduced in support thereof, but in a given case, in order to avoid abuse of the process of the Court the interests of justice require Undisputed and established facts to be given due weight. I, therefore, in the facts of this case, do not find the objection of the Learned Counsel for the respondent tenable.
5. Learned Counsel for the petitioners vehemently urged that the dispute between them and the respondent is purely of civil nature and that it has received due consideration by the civil Court Furthermore, he contended that if there were any falsification of the accounts, or forgery of entries as alleged by the respondent, the civil court had ample power to order the prosecution of the accused-petitioners. That is was not so or at any rate, the respondent sailed in the same boat, was made evident, by reference to the contents of award Annexure P. 4 in extenso Particular reference was made to the following findings of the arbitrators in the award, while dealing with the amounts which were alleged to have been paid to Ram Bhagat from time to time:-
Shri Ram Bhagat has denied having received the above detailed amount and has asserted that he gave receipt for every payment received by him and also made entry in his account-books showing the received amount i.e. debited by the defendant. We asked Shri Ram Bhagat to produce his account-books as Shri Mangat Ram defendant also relied on his books and pressed him to produce the same. Shri Ram Bhagat was given time to produce his account books and copies of balance sheet and income tax returns etc. Vide our direction dated 13.5.1980 on the arbitration proceedings file. He has been to Calcutta also in the month of June, 1980 but he chose not to produce them. Rather some Note Books, i.e. student exercise books were shown which were not maintained day to day and showed some other accounts not connected with the defendant-firm. These note books also did not show any amount of Rs. 7200/- admittedly received by the plaintiff from time to time during 2.1.1979 to 12.6.1979. We are constrained to observe that Shri Ram Bhagat has withheld his accounts from our inspection whereas the defendants have placed all the accounts of the defendant-firm and its sister-concerns at our disposal and have shown them to the plaintiff also
As noticed already, the respondent''s claim of Rs. 20,000/- was rejected by the arbitrators and he was only allowed a sum of Rs. 30,000/-
6. In order to further emphasize his contention that the four items of accounts, which were in issue in the suit between the parties, have also a bearing on the present complaint the said four times indicating payments to Ram Bhagat respondent (plaintiff in the suit) were as under:-
Rs. 20,000/- paid on 20th January, 1978;
Rs. 30,000/- paid on 17th September, 1978;
Rs. 30,000/- paid on 11th January, 1979; and
Rs. 8,000/- paid on various dates from 11th January, 1979 to 30th June, 1979.
Reference was again made to the following findings of the arbitrators in their award Annexure P. 4:-
Though we have made the production of the copy of the Talpat Account for the year 1978-79 by Shri Ram Bhagat as one of the basis for arriving at our conclusion about the payments on 20.1.1978 and 17.9.1978 and we have differed with this Talpat Account for deciding the payment of Rs. 8000/- from 22.1.1979 to 12.6.1979 for other reasons discussed above, we cannot discard this Talpat Account while considering the alleged payment of Rs. 3000/- on 11.1.1979 We do not grant authenticity to the Talpat Account as we have disbelieved it while deciding payments from 22.1.1979 to 12.6.79 amounting to Rs. 8000/- and according to the defendants this might have been prepared wrongly intentionally at the instance of the plaintiff but still as we have used it for deciding the previous payments, to be fair and just to both the parties, we use the same Talpat Account disbelieving the payment of Rs. 30,000/- on 11.1.1979 to the plaintiff.
In their award Annexure P. 4 the arbitrators further held that the accounts of the defendant-firm have been checked by Shri Ram hagat from beginning upto the year ending 1978-79. He has not detected anything objectionable upto the year ending 1977-78 as obviously Talpat Account for 1978 79 was prepared after checking the accounts for the previous years We unanimously believe that these payments were received by the plaintiff Thus we clear the payments of Rs. 20,000/- on 20.1.1978 and Rs. 30,000/- on 17.9.1978..........
7. The discussion above leaves no room for doubt that a purely civil dispute between the partners of M/s. Bharat Brickkiln Sirsa, three of whom are petitioners and fourth is respondent in this Court, stands finally decided by the civil Court. I find merit in the contention of the Learned Counsel for the petitioners-that there is no finding with regard to the falsification of any account by the petitioners. The account books were kept in the ordinary course of business. It is a different matter that the arbitrators were not inclined to rely on one item of Rs. 30,000/- dated 17.9.1978. It need hardly be said that by scrutinising the accounts, Ram Bhagat respondent too was disbelieved by the arbitrators. In the facts and circumstances of this case, I feel that the prosecution of the petitioners will be nothing but an abuse of the process of the Court. I, therefore, accept this petition and quash the entire proceedings launched against them.
