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Removal of Goods Of Partneship Firm Despite Injunction Order without consent of the other Partner Amounts To Theft: Supreme Court

The Supreme Court held that removal of the same without consent or knowledge of the appellant would amount to theft.

A division bench of Justice Vikram Nath and Justice Ashanuddin Amanullah observed that Section 506 of the IPC talks of the offence of criminal intimidation. The FIR contained the specific averment that when the appellant questioned respondent No.1, he threatened him to remain quiet otherwise he would lose his life. All these offences are cognizable in nature and basic ingredients being there in the FIR, the High Court clearly erred in quashing the FIR. Whether the offences are proved or not would be a subject matter of the Trial and before that of the investigation as to whether a triable case is made out or not by the investigating agency but in any case, was not a case where FIR was liable to be quashed.

The appellant and respondent entered into a partnership as Karta of their respective HUFs and a partnership deed was reduced into writing. The business inherited by them was run in shop No.26/59 as a tenant. The said premises was taken on rent from its owner Ms. Urmila Gupta.

Respondent gave a legal notice to the appellant expressing his desire to dissolve the firm w.e.f. 01.06.2013. He also retained the keys of the shop and restricted the appellant’s entry therein.

In response, the appellant gave a legal notice dated 07.06.2013 requesting the respondent to withdraw his notice . The appellant also filed an application under section 9 of the Arbitration and Conciliation Act, 1963 before the District Judge, Kanpur registered as Misc. Arbitration Application No.77/70 of 2013.

The District Judge passed an interim order dated 01.07.2013 directing the parties not to open the shop in the absence of the other i.e. to say that both the parties or their representative would enter the shop jointly and neither of the parties will enter the shop separately. The District Judge appointed an Advocate Commissioner to serve the notice before the next date which was fixed as 06.07.2013.

According to the appellant, an arbitral award was passed. The award is on the basis of compromise. As per the said compromise, which included all the assets and belongings of the firm, the shop in question came to the exclusive possession of appellant and his father.

M/s Sushma Constructions Pvt. Ltd. filed an eviction suit. The High Court primarily on the basis of the concession given by the opposite party therein i.e. Pankaj Rastogi (respondent) allowed the Revision and a direction was issued to respondent to hand over peaceful possession of the shop in question within a period of 30 days.

The appellant came to know that the Board of M/s Sushma Constructions Pvt. Ltd. was put up outside the shop in question and also that the locks of the said shop had been changed. Immediately thereafter the appellant lodged an FIR on 22.10.2018 which is a subject matter in question. In the said FIR, respondent No.1 along with one Mohit Rastogi, Ketan Shah and staff of M/s Sushama Constructions Pvt. Ltd. were arrayed as accused and named in the FIR. In the FIR, it was clearly mentioned that the appellant and respondent as Kartas of respected HUF were partners in equal share and there was an interim order operating. At the time when the interim order was passed, the shop had about 100 Kgs of Gold, 500 Kgs Silver, 10,000 Carat of Diamonds and 5000 Carat of Gems. The appellant came to know of new locks and the Board of M/s Sushma Constructions Pvt. Ltd. only on 17.10.2018. It was also mentioned that the appellant had learnt that it was respondent, along with staff named in the FIR, who had opened the locks and the entire stock and valuable documents were missing. When the appellant inquired from respondent, he threatened him to keep quiet otherwise he would lose his life.

The court held that section 457 IPC talks of an offence regarding ‘lurking house trespass or house breaking at night to commit an offence punishable with imprisonment’. Theft committed in any building which is used as a human dwelling or for a custody of a property is punishable under section 380 of the IPC and the sentence for a term which may extend to seven years and also be liable to fine. In the present case, there was breaking open of the locks of the premises wherein the property was stored for the purposes of theft, the punishment under section 457 of the IPC would extend to 14 years.



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