Pathapati Peera Reddy v. The State of AP Rep by Its PP Hyd

Order

The Criminal Revision Case has been preferred by the de-facto complainant under Section 397 and 401 of Code of Criminal Procedure, 19731 challenging the order of discharge of the Respondent Nos.2 to 4, vide order dated

26.08.2015, for the alleged offences punishable under Sections 420, 423 and 468 of the Indian Penal Code, 18602 passed by the learned V Additional Judicial

Magistrate of First Class, Nellore3. A. FACTUAL MATRIX CONTENTIONS OF THE RESPONDENT NOS.2 TO 4 IN THE DISCHARGE PETITION:

#2. For better and effective understating of the gamut of the dispute, it is apposite to summarize at first the contentions of the Accused and Respondent Nos.2 to 4 under this factual matrix head. The Station House Officer, V Town Police Station, Nellore4, filed a charge sheet under Section 173 of ‘the Cr.P.C.,’ against the Respondent Nos.2 to 4 for the offences punishable under Sections 420, 423 and 468 of ‘the I.P.C.,’ in Crime No.222 of 2005, which was registered on the basis of the report lodged by Pathapati Pera Reddy/de-facto complainant, 1 the Cr.P.C 2 the I.P.C 3 the Trial Court 4 the Investigating Officer 7 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 wherein it was alleged that the Respondent Nos.2 to 4 executed sale deeds in respect of Plot Nos.1, 1A, 2 and 4 in Sy.No.52/24 to Pratap Kumar, I.Supriya, Vommina Eswara Manoj Kumar and P.Rishita respectively, though they had no right and title over the property.

#3. Under the authority of a General Power of Attorney document bearing No.509 of 2005, by which Potti Vijayalakshmi appointed the de-facto complainant as her GPA in respect of plot Nos.1, 1A, 2 and 4. Dwaraka Real Estate was a partnership firm constituted under a deed of partnership dated 26.09.1984 comprising seventeen partners. Respondent Nos.2 to 4 were partner Nos.10, 11 and 5 in the partnership deed. The de-facto complainant further alleged that Dwaraka Real Estates had appointed partner No.6/D.Lakshmi Narayana, partner No.7/P.Sesha Reddy and partner No.15/P.Badri Narayana Rao as GPA holders to deal with partnership properties under GPA dated 25.03.1985 vide document No.91/1985. It is further alleged that, except for those three persons no others had any authority to deal with the properties of partnership firm. After the demise of Kannaiah, partner No.16, partnership was reconstituted under the partnership deed dated 12.11.1988 comprising of the remaining sixteen partners. Thus, the GPA dated 25.03.1985 lapsed on 11.11.1988. Thereafter partner Nos.6, 7 and 15 8 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 had no authority to deal with the partnership properties in view of Section 201 of the Indian Contract Act, 18725.

#4. It is further contended that on perusal of the FIR, case diary, and statements, no case was made out against Respondent Nos.2 to 4. A legal notice dated 16.05.2003 was issued by S.V.Sarma, Senior Advocate to the three partners namely D.Lakshmi Narayana, P.Sesha Reddy and P.Badri Narayana Rao stating that the authority to deal on behalf of the firm had lapsed with the death of Kannaiah. Therefore, no prima facie case was made against Respondent Nos.2 to 4. It was contended that based on the averments of the FIR, case diary, and statements, and in view of the legal position, the entire dispute was civil in nature. As per Article 4 of the said partnership deed, the firm had fixed a tenure. The duration of the said partnership deed was from 12.11.1988 to

30.06.1999 and thereafter, the partnership was deemed to have been dissolved.

#5. R.Srinivasulu, instituted a civil suit in O.S.No.446 of 2005 on the file of the learned First Additional Senior Civil Judge, Nellore against the remaining 16 partners including Dwaraka Real Estates, seeking rendition of accounts, and the said civil suit had been pending for adjudication, and the matter was thus sub- judice.

#6. The alleged GPA holders, D.Lakshmi Narayana, P.Sesha Reddy had also pleaded that the partnership had become defunct on 09.11.1989 and the GPA 5 the Act 9 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 was terminated by the death of Kannaiah on 11.11.1988. It was further contended the Trial Court had to examine the materials to consider that sufficient material was there to establish the guilt of the Respondent Nos.2 to 4 by satisfying itself that a prima facie case was sufficiently made out. The de-facto complainant lacked the competency to initiate the prosecution as he had sold away plot No.1, 1A, 2 and 4 in favour of P.Srinivasulu Reddy and Venkata Ramana Panyam. The de-facto complainant cannot be considered bonafide purchaser for value and consideration within the meaning of Section 3(f) of the Transfer of Property Act, 18826. It was eventually contended that the criminal proceedings were rightly discharged as no case was made out against Respondent Nos.2 to 4. VERSION OF THE PROSECUTION BEFORE THE TRIAL COURT:-

#7. Before the learned Trial Court the prosecution filed counter-affidavit and denied the averments of the discharge petition. It was submitted that Respondent Nos.2 to 4 and other accused who were also partners of M/s. Dwaraka Real Estate were fully aware of the facts of authorising one Dasa Lakshmi Narayana/L.W.3, Pathapati Sesha Reddy/L.W.4 and Padarthi Badri Narayana Rao/L.W.5 as General Power of Attorney Holders. They had signed in the partnership deed dated 26.09.1984 and the re-constituted deed dated

12.11.1988, executed pursuant to the death of one of the partners in the said firm. 6 the T.P.Act 10 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 Respondent Nos.2 to 4 and other accused also signed in the registered General Power of Attorney dated 25.03.1985 executed in favour of L.Ws.3 to 5 authorising them to deal with all the transactions of the firm.

#8. It was further contended that, in the above partnership deed and the General Power of Attorney dated 25.03.1985, any two of the three GPA holders can execute documents on behalf of the firm, and it would bind the remaining partners of the firm. While so, to carryout business of the firm and in exercise of their powers under GPA, the land belonging to Potti Vijaya Lakshmi/L.W.2 who is a third party to the firm, was taken over by the firm under separate Special Power of Attorney given by her on 25.03.1985 and subsequently an agreement was executed by two of the power of attorney holders in her favour on 10.11.2003 allotting certain plots laid out by the firm in proportion with the land taken over from her. The transaction also binds the Respondent Nos.2 to 4 and other accused, who are the partners of the firm. Out of the plots allotted to her, L.W.2/P.Vijaya Lakshmi, gave registered General Power of Attorney in favour of the de-facto complainant in respect of the plots in question in the present case in the month of July 2005. While so, with dishonest intention and wrongful gain Respondent Nos.2 to 4 and other accused who had no authority, had fraudulently executed registered sale deeds in favour of their kith and kin and it amounts to forgery, punishable under Section 468 of ‘the I.P.C.,’ and also by mentioning false statements of consideration, which is an offence punishable under Section 423 of 11 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 ‘the I.P.C.,’ and thereby caused loss to de-facto complainant and L.W.2 to a tune of more than five lakhs by depriving their right over the said plots which is punishable under Section 420 of ‘the I.P.C.’

#9. It was further contended in the counter-affidavit that Respondent Nos.2 to 4 were trying to impress upon the Court that the allegations made against them were all of a civil nature and would not attract criminal offences and to take undue advantage of the Clauses stipulated in the partnership deeds in respect of the duration of partnership of the firm and also under the guise of a civil Suit in O.S.No.446 of 2005, pending on the file of the I Additional Senior Civil Judge, Nellore.

#10. The Prosecution relied on a judgment of the Hon’ble Apex Court Lalmuni Devi v. State of Bihar7, wherein it was held that merely because a civil claim is maintainable, it does not mean that the criminal complaint cannot be maintainable.

#11. It was further averred that the factum of extension of the duration of the firm after 30.06.1991 by mutual agreement of the partners had been supressed by the Respondent Nos.2 to 4. Unless all the agreements entered by the General Power of Attorney Holders had been duly complied with, the firm could not be dissolved, because it would lead to loss to a large number of public who had 7 (2001) 2 SCC 17 12 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 invested amounts in the firm. The suit in O.S.No.446 of 2005 was instituted for dissolution of the partnership firm and rendition of accounts.

#12. It was furthermore averred that, as on the date of execution of the disputed documents in question, in the present case dated 10.10.2005 and 17.10.2005, the said civil suit was not at all in existence. To escape from the criminal liability the guise of civil suit, Respondent No.2 got instituted the suit on

09.11.2005 through one of his henchmen by name, Rathikrindi Srinivasulu, who was also one of the partners of the firm.

#13. The de-facto complainant was the owner of the property as on the date of the execution of false documents in dispute in that case by the accused i.e., on

10.10.2005 and 17.10.2005. Therefore, the de-facto complainant was a competent person to initiate prosecution against Respondent Nos.2 to 4 and other accused. Thus, urged to dismiss the discharge petition and claimed to try the respondent Nos.2 to 4 and other accused.

#14. The learned Magistrate having heard the learned counsel for both sides and on perusal of the written arguments filed by them, discharged Respondent Nos.2 to 4, who are A1, A3 and A5. As there was no prima facie case made out against the other accused/A2 and A4 for the offences punishable under Sections 420, 423 and 468 of ‘the I.P.C.,’ they were also discharged.

#15. It is the solemn duty of the learned Trial Court to examine whether there was a prima facie case was made out against Respondent Nos.2 to 4 for the 13 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 offences punishable under Sections 420, 423 and 468 of ‘the I.P.C.,’ while considering an application filed under Section 239 of ‘the Cr.P.C.’ The prosecution shall ex-facie establish that Respondent Nos.2 to 4 had cheated P.Vijayalakshmi and her GPA holder by dishonestly inducing them to deliver any property to them or to any person, to attract the ingredients of Section 420 of ‘the I.P.C.’ B. SUBMISSIONS ON BEHALF OF THE PETITIONER

#16. Sri Harinadh Nidamanuri, learned Counsel representing Sri C.Masthan Naidu, the learned Counsel for the Revisionist while reiterating the grounds of the Revision, argued that the impugned order of discharge passed by the learned Magistrate is patently illegal, improper, and contrary to the settled principles of criminal jurisprudence. The learned Magistrate failed to appreciate that material collected during the investigation, including documentary evidence and statements of witness, clearly disclosed the commission of cognizable offences punishable under Sections 420, 423, and 468 of ‘the I.P.C.’ The conclusion that the dispute is purely civil in nature is erroneous and overlooks the specific allegations of fraudulent conduct and dishonest intention attributed to the accused. It is evident from the record that the accused persons, without any lawful right, title, or interest in the subject property, fabricated and executed documents with the intent to deceive and cause wrongful loss to the complainant. 14 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025

#17. The investigating agency, after conducting a thorough inquiry, sufficient material to substantiate the allegations and accordingly filed a charge sheet. The learned Magistrate, however, misdirected himself by engaging in a detailed evaluation of the evidence, which is impermissible at the stage of framing of charge under Section 239 ‘the Cr.P.C.,’ where only a prima facie case is required to be established. The acts of the accused, including the creation and execution of forged documents, are inherently criminal in nature and cannot be equated with a mere civil dispute. The fraudulent design and dishonest intention underlying these acts are evident from the material on record. The learned Magistrate failed to consider that the scope of discharge under Section 239 ‘the Cr.P.C.,’ is limited and does not empower the Court to conduct a meticulous appreciation of evidence or determine the veracity of the prosecution’s case at that stage.

#18. Learned Counsel for the Revisionist further argues that in view of the above, the order of discharge is unsustainable in law and deserves to be set aside. The material on record clearly warrants the framing of charges against the accused for the offences alleged, and the matter ought to proceed to trial accordance with law. The learned Magistrate’s failure to do so has resulted in a miscarriage of justice. It is eventually argued that the impugned order of discharge of Respondent Nos.2 to 4 is illegal and unsustainable and urged to set aside it. 15 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 C. SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS.2 TO 4

#19. Mr. Rosedar S.R.A, learned Counsel for Respondent Nos.2 to 4 would submit that the charge sheet does not make out any offences much less alleged offences; the facts of the charge sheet give rise to civil claim; since no charges can be framed for the offences punishable under Sections 420, 430 and 468 of ‘the I.P.C.,’ the learned Magistrate had discharged the Respondent Nos.2 to 4. The impugned discharge order does not suffer from any infirmities on whatsoever grounds or reasons. The order under challenge was rightly passed by appreciating the entire gamut of the litigation. The order of the learned Magistrate is a well-conceived one and does not warrant any interference and urged to dismiss the revision case. D. SUBMISSIONS ON BEHALF OF THE STATE

#20. On the other hand, Mrs. P.Akhila, learned Assistant Public Prosecutor would argue that the learned Trial Court had rightly appreciated the material available filed by the prosecution and discharged the Respondent Nos.2 to 4 as prima facie case was not made out against them. There was no flagrant miscarriage of justice. There were no perverse findings. There was no irregularity let alone material irregularity. The order impugned is not vitiated by manifest error of law or procedure which had resulted in miscarriage of justice. The impugned order doesn’t suffer from any illegality or infirmity. Hence, urged to dismiss the criminal revision case. 16 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 E. RELEVANT STATUTORY PROVISIONS

#21. Before adverting to the rival submissions canvassed on either side, it is necessary for us to explore a few relevant provisions of ‘the Cr.P.C.,’ and ‘the I.P.C.’: Section 239 of ‘the Cr.P.C.,’ When accused shall be discharged – If, upon considering the police report and the documents sent with it under section 173 and making such examination, accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the accused to be Magistrate considers the charge against groundless, he shall discharge the accused, and record his reasons for so doing. if any, of Section 415 of ‘the I.P.C.,’ Cheating.— Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Section 420 of ‘the I.P.C.,’ Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 423 of ‘the I.P.C.,’ Dishonest or fraudulent execution of deed of transfer containing false statement of consideration — Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or 17 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 instrument which purports to transfer or subject to any charge any therein, and which contains any false property, or any interest statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 464 of ‘the I.P.C.,’ Making a false document. — A person is said to make a false document or false electronic record — First — Who dishonestly or fradulently— (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d)makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly — Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly — Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.” Section 468 of ‘the I.P.C.,’ Forgery for purpose of cheating — Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be 18 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 punished with imprisonment of either de-scription for a term which may extend to seven years, and shall also be liable to fine. Section 201 of the Indian Contract Act, 1872: Termination of agency — An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors. Section 55 of The Transfer of Property Act, 1882 Rights and liabilities of buyer and seller.— In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:— (1)The seller is bound— a) to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power; to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto; c) d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place; e) between the date of the contract of sale and the delivery of property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents; to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits; f) g) to pay all public charges and rent accrued due in respect of property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to discharge all encumbrances on the property then existing. to encumbrances, (2)The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: 19 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it. The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (3)Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power: Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buye of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident. (4)The seller is entitled— a) to the rents and profits of the property till the ownership thereof passes to the buyer; b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. (5)The buyer is bound— a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest; b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer the purchase-money the amount of any may retain out of 20 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto; c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller; d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due. (6)The buyer is entitled— a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof; b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent. Sections 4, 6, 7, 9, 12, 14, 39, 40, 41 of the Indian Partnership Act, 1932 Sec.4. Definition of “partnership”, “partner”, “firm” and “firm name”.—“Partnership” is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually “partners” and collectively “a firm”, and the name under which their business is carried on is called the “firm name”. Sec.6. Mode of determining existence of partnership.—In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Sec.7. Partnership at will.—Where no provision is made by contract between the partners for the duration of their partnership, or for the determination of their partnership, the partnership is “partnership at will”. 21 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 Sec.9. General duties of partners.—Partners are bound to carry on the business of the firm to the greatest common advantage, to be just and faithful to each other, and to render true accounts and full information of all things affecting the firm to any partner or his legal representative. Sec.12. The conduct of the business.—Subject to contract between the partners— (a) every partner has a right to take part in the conduct of the business; (b) every partner is bound to attend diligently to his duties in the conduct of the business; (c) any difference arising as to ordinary matters connected with the business may be decided by a majority of the partners, and every partner shall have the right to express his opinion before the matter is decided, but no change may be made in the nature of the business without the consent of all the partners; and (d) every partner has a right to have access to and to inspect and copy any of the books of the firm. the property of to contract between the Sec.14. The property of the firm.—Subject partners, the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business. Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm. Sec.17. Rights and duties of partners.—Subject to contract between the partners: (a) After a change in the firm.—Where a change occurs in the constitution of a firm, the mutual rights and duties of the partners in the reconstituted firm remain the same as they were immediately before the change, as far as may be; (b) After the expiry of the term of the firm, and.—Where a firm constituted for a fixed term continues to carry on business after the expiry of that term, the mutual rights and duties of the partners remain the same as they were before the expiry, so far as they may be consistent with the incidents of partnership at will; and (c) Where additional undertakings are carried out.—Where a firm constituted to carry out one or more adventures or undertakings carries out other adventures or undertakings, the mutual rights and duties of 22 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025 partners in respect of the other adventures or undertakings are the same as those in respect of the original adventures or undertakings. 39. Dissolution of a firm.—The dissolution of partnership between all the partners of a firm is called the “dissolution of the firm”.

#40. Dissolution by agreement.—A firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners.

#41. Compulsory dissolution.—A firm is dissolved— (a) [by the adjudication of all the partners or of all the partners but one as insolvent, or] (b) by the happening of any event which makes it unlawful for the business of the firm to be carried on or for the partners to carry it on in partnership: Provided that, where more than one separate adventure or undertaking is carried on by the firm, the illegality of one or more shall not of itself cause the dissolution of its lawful adventures and undertakings. the firm in respect of F. ISSUES FOR CONSIDERATION:

#22. Now the points for consideration are: i. Whether the order in Crl.M.P.No.2502 of 2014 dated 26.08.2015 in C.C.No.797 of 2008, on the learned V Additional Judicial Magistrate of I Class, Nellore, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief? ii. G. ANALYSIS

#23. The High Court of Madras in A.R.Saravanan v. State8, held that under Section 239 of ‘the Cr.P.C.,’ the trial Court is required to see whether ground for presuming commission of offence exists or whether the charge is groundless; whether a prima-facie case pertaining to the commission of the offence is made out or not. 8 2002 SCC OnLine Mad 637 23 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025

#24. The High Court of Allahabad in State of Uttar Pradesh v Jitendra Kumar Singh9, held that Section 239 of ‘the Cr.P.C.,’ enjoins upon the Magistrate to record his reasons for holding the charge against the accused to be groundless and discharging him. This is simply because his order of discharge is subject to revision by the higher Courts. There were sufficient documents and evidence indicating that prima facie charges were made out against the accused, but those documents and evidence were neither referred nor considered and the Magistrate discharged the accused on the ground that nobody represented the state including the official entrusted with the work of supervising the state litigation or any advocate including the District Govt. Counsel. It was held that the order of discharge was liable to be set aside.

#25. The Hon’ble Apex Court in Ishwarlal Girdharilal Parekh v. State of Maharashtra10, has held that the word 'property' in Section 420 of ‘the I.P.C.,’ does not necessarily mean that the thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value, in the hand of the person cheated. The communicated order of assessment received by an assessee is "property". 9 MANU/UP/0342/1987 10 (1968) 70 ITR 95 24 Dr.YLR,J Crl.R.C.No.29 of 2019 30.06.2025

#26. The High Court of Allahabad in Sonbhadra Coke Product v. State of U.P11., it was held that offence of cheating can be made out only if it has been shown that damage or harm has been caused to the person so deceived.

#27. The Hon’ble Apex Court in Lalmuni Devi v. State of Bihar12, at Paragraph No.8 held as under: “8. There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.”

#28. The Hon’ble Apex Court in Amit Kapoor v. Ramesh Chander13, at paragraph Nos.25 to 27 held as under: “25. … We have already indicated above that framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under these two provisions.

#26. This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the i.