• Private complaint for cheating against partners of firm, bank, registrar of firm

My father was partner in partnership firm which was at will . no clause that firm can continue business after Death of any Partner. Firm has Bank accounts with BOB in Alwar ,Raj. Surviving partners ( my 2 brothers) entered in new partnership deed without intimating me. They kept Firm name Exactly same in connivance with Bank Manager. In new Deed a clause says that Old Firm will continue to operate Bank accounts of New Firm. Another clause says New Firm has taken over all assets and liabilities of Old firm.Bank did not close Partnership accounts of Old firm . Bank replies everything is as per Bank rules.
New Firm is continuing with same PAN number . No separate legal heir account of deceased partner is maintained. Income tax office has confirmed single assessment of Firm has been submitted under same PAN and separate assessment by New and old firm has not been submitted. Income tax office has further stated that they have not scrutinized Income tax return and Action against Firm if needed for violation of Income tax provisions shall be taken as per Rules.
With ROF they had submitted Form for reconstitution of Firm stating deceased partner has been retired on death by remaining partners. ROF has verbally told me that they got Notice under sec 63 of Partnership act for reconstitutuion along with newspaper notice in this regard. This newspaper notice has never come in my knowledge as It was published in local newspaper of alwar though I live in delhi.
I have gone through Partnership act and from there my understanding is as under:
1.	As per Sec 32, there is no provision of retirement of partner from firm in case of Death of Partner unless contrary agreement exist.
2.	As New Partnership Deed talks of old firm and New Firm, it is clearly case of dissolution of firm. Dissolved firm has no right to give Notice for Reconstitution under Sec 63 .
3.	As per Sec 70 , since firm has knowingly submitted false information to ROF , action for prosecution against partners can be intiated thru legal means. 
I have filed partition case wherein I have staked claim of my portion of share in house property of my father and share of my father along with interest /share in profit etc for business being carried by Firm after his death . 
Besides this I want to file Private Criminal Case against my brothers. . I think it will be under sec 190 Crpc . I need guidance:
1.Whether complaint will be only against brothers. Or I can implead Bank Manager in this complaint.
2.Whether ROF to be made a party in this suit. I understand decision of ROF ( On reconstitution/dissolution is considered final and only court has power to change his decision.)
3.	IPC Sections in which complaint is to filed…like Criminal Breach of Trust ( Sec 320 B IPC,Sec 420 IPC for cheating and other sections.
4.	If Branch Manager BOB can be included in Pvt complaint, IPC sections which can be named.
5.	Any other advice /legal course best suitable for this case.
Asked 4 years ago in Criminal Law
Religion: Hindu

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12 Answers

hello

you have been defrauded by your brothers in connivance of the Branch manager. the, therefore, the complaint should be made against him too. he can try and prove his innocence once the case starts but afterward you cannot make him a party as that would be an afterthought and would look suspicious. also, your brothers couldn't have pulled off such a deal without the help of the BM.

you have to narrate the entire sequence of events as they happened. it is the job of the police to lodge FIR under relevant sections. when the matter goes to the court, your lawyer can move an application if the police have not investigated a particular aspect or not stated something which is of importance in the charge sheet.

yes the BM can be and should be named.

regards

Rahul Mishra
Advocate, Lucknow
13762 Answers
65 Consultations

5.0 on 5.0

1) police complaint should be against your brothers under section 406, 420 of IPc for criminal breach of trust , cheating

2) it does appear that bank manager has colluded with your brother by entering into criminal conspiracy . bank manager should have insisted on death certificate of your father , copy of partnership deed of old firm . insisted on new account being opened by reconstituted firm ,

3) file complaint against bank manager too under section 120 B for entering into criminal conspiracy with your brothers and under section 420 for cheating

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Dear Sir, kindly note that since it was a partnership firm at will it will attract section 43 in respect of its dissolution. As per it, the firm may be dissolved by any partner giving notice in writing to all the other partners. Whether any such notice was given by any partner at any point of time? The nature of the firm being partnership at will, it has to be dissolved forthwith on the death of the partner. In a scenario where no contract to the contrary exists, no legal heir or nominee shall fill in the place of the deceased partner. For altering changes in the constitution of the firm compliance.of.section 60 should also be made. The most important question that emerges out to be is whether on the death of one of the partner,.the firm gets dissolved automatically. Why has it not been done? Accordingly, there exists a connivance amongst the other two partners and officials of bank. Regarding the notice, requirement of notice is restricted to its place of registration or principal place of business.

Regarding your queries now:

You may file an FIR first in that regard and failure to get it registered,.file a complaint under section 190 crpc in form of a plaint describing facts against the accused persons.

You should include bank manager into the same, however, it is to been that in informingparticulars to ROF how far bank manager has helped the brothers to manage things on the basis of documents and their requirement. You may further proceed to inquire ROF about the constitution of new firm without dissolving the old firm. Sections like criminal breach of trust shall be.filed at later stage once it is established through documents that the two brothers.have surpassed and intentionally overlooked the provisions of partnership act just to take advantage of the death of one of the partner in order to constitute new.firm on the basis of goodwill acquired by the earlier firm.

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

1. You can implead the bank manager also, saying that he also connived with your brothers.

2. RoF is not required to be made as a party.

3. You just make the complaint, appropriate section will be added by the court. However, 406, 420 happens to be the major sections involved.

4. Go ahead and lodge a complaint against the brothers and the bank manager.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. If the bank manager has unlawfully used his authority and due care was not taken he can be implicated in the complaint.

2. Order of ROF can be challenged in the said suit making party is not necessary.

3. Sir the Indian penal code sections for cheating fraud, breach of trust with criminal conspiracy shall be added further if bank official is there then misuse of authority by public servant and breach of trust by public servant,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. A complaint to the police should be filed against your brother along with the branch manager as the entire commission of offence could not have been possible without the collision of the branch manager and hence it he is a requisite party to the Criminal Case.

2.ROF can be called an witness during your evidence stage.

3. The relevant sections are section 34/120 b 406/420 of the Indian Penal Code and if some forgery has been committed then section 467/468/471 of Indian penal code would also be added.

4. Section 34/120b/420.

Siddharth Jain
Advocate, New Delhi
5933 Answers
101 Consultations

5.0 on 5.0

if a complaint is received by the Magistrate, the power to take cognizance on the basis of such complaint is under Section 190 of Cr.P.C. However, further action on such complaint has to be taken under Sections 200-204 of Cr.P.C. Under Section 200 Cr.P.C., the magistrate is required to record the statement of the complainant on oath, and also of other witnesses, if present. The objective sought to be achieved by Section 200 is that a large number of complaints are filed by private individuals, many of which may be frivolous complaints. Therefore, it is considered necessary to verify the details of such complaints by examining the complainant on oath under Section 200 of Cr.P.C. In certain “complaint” cases, action may have to be taken by the magistrate under the provisions of Section 202 Cr.P.C., i.e., an inquiry by the magistrate himself or an investigation by police, etc. After these steps, if the magistrate does not find sufficient ground to proceed further, he may dismiss the complaint under Section 203 of Cr.P.C.; on the other hand, if he finds sufficient ground to proceed, he may issue process under Section 204 of Cr.P.C.

1. If you feel that the bank manager is also involved in this fraud, then he may also be named as an accused for collusion and cheating.

2. ROF need not be taken a party to this.

3. The criminal breach of trust (406), cheating ( 420) etc besides other sections.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

You may file an application against the closure report and also for expedition of proceedings

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

See you can approach high court by filing a petition if there is any irregularity from side of police or the court . You can seek direction for fair investigation.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If police file closure report you can file protest petition seek further investigations 

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

You can submit protest Petition if police submit closure report. The magistrate will pass Appropriate orders in the Same

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

The bank is right in their opinion that the disbursement was made as per rules, if you want to agitate the same then you may have to approach court of law.

The police, if not found any material to prove the allegations in the complaint, may submit a closure report.

 

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

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