The importance of establishing apportionment of liability and shares in a partnership firm before alleging cheating or misappropriation.

The instant petition seeking leave to appeal against the judgment of acquittal dated 18.02.2015 rendered by the Learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 96/2007 whereunder the sole accused/opposite party no. 2 has been acquitted of the charges under Section 420 of the Indian Penal Code is suffering from a delay of 69 days. However, we have heard learned counsel for the petitioner at length on the grounds of challenge and gone through the materials on record and also perused the impugned judgment.

2. Briefly stated the prosecution case lodged by the complainant being Sakchi P.S. Case No. 198 of 2006 on 19.10.2006 (G.R. No. 2402 of 2006) instituted under Section 409/406/467/468/471 of the Indian Penal Code was found not to be true after investigation by the police which submitted the final form bearing no. 226/06 dated 30.11.2006. However, cognizance was taken on protest petition filed by the petitioner/complainant after holding inquiry under Section 202 of the Criminal Procedure Code in terms of Section 420/409/467/468/471 of the Indian Penal Code against the accused. The complainant alleged that he along with accused and others were partner of M/s Jhanda Singh and Company engaged in business of transportation and other jobs with Tisco Limited. The original partnership is dated 02.01.2002, which was later on reconstituted on 01.04.2002. In the said reconstituted deed of partnership Bhupinder Singh and other three partner which included the wife of Bhupinder Singh, also incorporated a condition that bank account no. OD/621 at Central Bank of India, Sakchi Branch, Jamshedpur in the name of the firm shall be operated jointly or severely by any one of the partners of the firm. The complainant alleged that the accused illegally withdrew Rs. 12,24,547/- between 01.08.2004 to 10.12.2004. According to reconstituted partnership deed dated 01.04.2002, the bank account should be operated not singly but jointly, but the accused obtained the signature of the complainant and his wife on the account-opening application, operating card and specimen card etc. and submitted it to the bank. The complainant came to learn in July, 2004 that the bank had not been informed about the reconstitution of the partnership and that the accused continued to withdraw money under the single signature. On 30.07.2004 a letter was sent by the complainant and Manju Bhamra and other partners to the Branch Manager of the Central Bank of India, Sakchi Branch to change the signatory authority. It was received by the bank on 31.07.2004. However, out of sum of Rs. 21,51,782.25P deposited in the said account, more than Rs. 12,24,547/- was withdrawn by the accused between 01.08.2004 and 10.12.2004. The complainant came to know about it from the statement received from the bank. The complainant also averred that Title Partition Suit No. 62/06 and Title Partition Suit No. 77/06 were filed by the accused against the complainant for partition of property at Sakchi and Circuit House Area (East). Prior to that the complainant had filed a Title Suit bearing no. 28/06 dated 01.05.2006 for a decree for specific performance of contract dated 26.01.2005 against the accused and also prayed for a decree for execution of a proper sale deed transferring half share of the defendants in the property, for which they have received a sum of Rs. Ten lacs by way of advance through cheque dated 10.02.2005. According to the complainant, these essential facts were suppressed by the investigating officer. The accused has connived with each other and in furtherance of their common intention cheated the complainant by forging documents.

3. The learned Trial Court proceeded to frame the charges u/s 420 of the Indian Penal Code on 02.04.2009 against the sole accused, who pleaded not guilty on being explained. After closure of the prosecution evidence, the statement