JUDGMENT B.C. Patel, C.J.
1. The present appeal is preferred against the order made by the learned single Judge in WP(Crl) No. 1230/2001 decided on 12.11.2003, whereby the learned single Judge allowed the writ petition and quashed FIR No. 308/2001 which was registered for offence under Sections 406, 420 and 120B IPC at Police Station Ashok Vihar, Delhi.
2. The petition was styled as an Article 226 as of the Constitution, but in a sense it was a petition under Section 482 Criminal Procedure Code (hereafter referred to as the "CrPC"). Section 482 CrPC reads as under:-
"Section 482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
3. Learned single Judge on examination of the material has found that there was an agreement between the parties to carry on business of manufacturing and sale, export and import of leather goods or garments under the name and style of M/s Samsaur Implex.
There was contribution by the partners and they were to share profits and losses equally. However, after sometime it transpired that the business could not run smoothly and respondent No. 2 lodged a complaint with the Crime Branch somewhere in October 1999, but it seems that no action was taken. Thereafter, again in May,2001 a complaint was lodged before the Commissioner of Police, inter alia, alleging that Ajay Fotedar had invested a sum of Rs. 5,50,000/- from his own sources and also took a loan of Rs. 1,67,000/- from the Bank of Maharashtra for investment in the said partnership business. Book of accounts were maintained by R.C. Juneja, husband of original petitioner No. 1. It was further alleged that petitioner No. 1 commenced a proprietorship concern under the similar name, and opened an account in the Karnataka Bank Limited, Connaught Place, where a turn over of more than Rs. 50 lakhs has been noticed. It is alleged that the said amount reflected the price of the goods sold which were actually manufactured by the partnership concern. It is in view of this, there was an allegation of breach of trust and misappropriation of the partnership property.
4. On behalf of the petitioners, it was contended before the learned single Judge that it is nothing but a civil dispute and basically involves rendition of accounts for which a suit being Suit No. 2864/98 has already been filed in the High Court. Clause 9 of the partnership deed is also taken note of by the learned single Judge. Learned single Judge examined the decision of the Apex Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. (AIR 1982 SC 604) where the Apex Court, after detailed analysis of the provisions contained in Chapter XIV of the CrPC and various decisions on the question of exercise of extraordinary jurisdiction under Article 226 of the Constitution or inherent powers under Section 482 CrPC, laid down that if the FIR falls in any of the categories mentioned in paragraph 108 of the judgment, the same may be quashed under Article 226 of the Constitution of India or Section 482 CrPC. After quoting paragraph 108 of the aforesaid judgment, the question of cheating, as indicated in Section 415 IPC, has been examined by the learned single Judge. Learned single Judge has emphasized that there must be existence of guilty intention at the initial stage when the inducement is so offered. If there is no intention to deceive the other party, the offence cannot be said to have been made out. The attention of the Court was also drawn to other decisions of different High Courts and also of the Apex Court. Learned single Judge has pointed out that if FIR did not contain a by allegation to the effect that the accused had any dishonest intention at the time of making representation, there is no question of inducement. The Apex Court in the case of Hridaya Ranjan Pd. Verma and Ors. (2000 Crl L.J 2983) has observed that in determining the question as to whether the offence of cheating is made out the Court has to keep in mind the fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but, for this subsequent conduct is not the sole test. Learned single Judge has observed that in the present case there was no allegation in the FIR whatsoever to the effect that accused persons had guilt intention from the very beginning. Not only that, from the Status Report, the learned single has pointed out the total amount credited in the proprietorship firm during the period August 1998 to December 1998 was to the tune of Rs.46 lakhs whereas amount credited in the partnership account from September 1997 to September 1998 is about Rs. 65 lakhs. Learned single Judge has examined the question whether an offence under Section 405 is made out or not. For this purpose the allegations made in the complaint and the decision of the Apex Court in the case of Velji Raghavji Patel v. The State of Maharashtra has been considered by the learned single Judge.
5. From the record, the learned single Judge has observed that there is nothing in the terms and conditions of the partnership deed to indicate that dominion of the partners over the partnership property was the result of any entrustment. In fact, when there is a partnership, both the partners are entitled to use the same or can deal with the same unless by an instrument there is a specific restraint and with an intention to deprive the other person has acted contrary to the restraint indicated in the agreement. Learned single Judge has pointed out that the amount received belongs to the partnership firm. Therefore, if in the absence of such a specific agreement a partner receives money belonging to the partnership, it cannot be said to have been received in a fiduciary capacity. Therefore, he cannot be said to have been entrusted with the dominion over the partnership property. Learned single Judge has examined the decision of this Court reported in Lok Nath v. Jagbir Suri (1982 Crl L.J 1328). Learned single Judge considering all these decisions has arrived at a conclusion that in such disputes which are essentially of a civil nature invoking criminal jurisdiction by lodging the FIR has been deprecated by the Apex Court. Learned single Judge has referred for this purpose to the decisions of the Apex Court in Ajay Mitra v. State of MP and Ors ( JT 2003 (1) SC 418); Amresh Tiwari v. Lalta Prasad Dubey and Anr. ; Ramgopal Ganpatrai Ruia and Anr. v. State of Bombay and U. Dhar and Anr. v. The State of Jharkand and Anr. (JT 2003 (1) SC 173)
6. In view of all this, when the learned single Judge after considering the matter in detail has quashed the FIR, we are of the view that no interference is called for.
7. It is required to be noted that ordinarily when original jurisdiction of the High Court is invoked by filing a writ petition, a Letters Patent Appeal can be filed, but when proceedings are initiated and when a specific provision is provided in the CrPC, namely, Section 482, there is no question of entertaining a Letters Patent Appeal.
8. Hence, the appeal is dismissed.