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Indian Partnership Act, 1932; Section 32: Partnership firm-Liabilities of retiring partners against third party-Held: In the absence of an agreement between third party, new firm and retiring partners discharging retiring partners from liabilities or notice thereof by the retiring partners, their liabilities to third party continue. Creditor adopting reconstituted firm/new firm as debtor-Rights against the old firm-Held: Such an act of adoption of new firm as debtor does not deprive the creditor enforcing his rights against the old firm particularly when there existed no fresh agreement between him and the new firm-In the facts and circumstances of the case priori-assumption that creditor entered into an agreement to discharge retiring partner from liability does not follow. Words and Phrases: `Priori-assumption’-Meaning and applicability of Plaintiff-appellant, a Bank had filed two suits against the respondent- firms for recovery of certain amount borrowed by the firm from the Bank with interest. The firm was dissolved and taken over by one of the partners. Trial Court decreed the suit against the firm and the owner of the new firm. Appellant-Bank filed appeals praying for decree against all the partners of the old firm. The High Court affirmed the decree of the trial Court. Hence the present appeals. It was contended for the appellant-Bank that the loan was availed of by all the partners after jointly executing the requisite documents for getting the loan amount; that dissolution of the firm would not affect the liabilities of partners as inter se agreement between them was not binding on the appellant-bank; and that in view of provisions in the Partnership Act the retiring partners of the firm could not escape from their liabilities against the third party. On behalf of the respondents/partners it was submitted that since notice of dissolution of the firm was given to the appellant-Bank, retiring partners should not be held liable to discharge liabilities of the firm. =Allowing the appeals, the Court HELD: 1.1. Under sub-section (2) of Section 32 of the Indian Partnership Act the liability of the retiring partner as against third party would be discharged only if there is an agreement made by the retiring partner, with the third party, and the partners of the reconstituted firm. Of course, an agreement could be implied by the course of dealing between such third party and the reconstituted firm, after retirement of a partner. In the instant case, there was no agreement between the appellant-Bank and respondent nos.2 and 3 as regards their liability in respect of the dissolved firm. There is also no evidence to show that there was an implied contract between the appellant and respondent no.4, owner of the reconstituted firm, who allegedly agreed to discharge the liabilities of respondent nos.2 and 3. It is also pertinent to note that there was no public notice under sub-Section (3) of Section 32 of the Indian Partnership Act by respondent nos. 2 and 3. Even if there was a public notice, it may not alter the position as the alleged liabilities of respondent nos. 2 and 3 were incurred by them prior to the dissolution of the firm. [217-G, H; 218-A, B] Thummala Rama Rao and Ors v. Chodagam Venkateswara Rao and Ors., AIR (1963) A.P. 154, distinguished. Lindley and Banks on Partnership (Sixth Edition) page 358, referred to. 1.2. There is no priori presumption to the effect that the creditors of a firm do on the retirement of a partner, enter into an agreement to discharge him from liability. An adoption by the creditor of the new firm as his debtor does not by any means necessarily deprive him of his rights against the old firm especially when the creditor is not a party to the arrangement and then there is no fresh agreement between the creditor and the newly constituted firm. After the creditor has taken a new security for a debt from a continuing partner, it may be a strong evidence of an intention to look only the continuing partner for the payment due from the firm, it has long been recognized that partnership is not a species of joint tendency and that, in the absence of some contrary agreement, there is no survivorship as between partners, at least so far as it concerns their beneficial interests in the partnership assets. Having due regard to these principles, the High Court erred in confirming the judgment passed by the trial court and the plaintiff appellant had every right to proceed against all the defendants in the suit. Hence, the impugned decree is modified to the extent that there shall be a decree against all the respondents in both the suits. [219-D-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1337 of 1995. From the Judgment and Order dated 7.3.1994 of the Karnataka High Court in R.F.A. No. 631 of 1987. WITH C.A. No. 3765 of 1995. =2003 AIR 1311, 2003(1 )Suppl.SCR213 , 2003(6 )SCC265 , 2003(4 )SCALE648 , 2003(4 )JT578

CASE NO.:
Appeal (crl.) 11 of 2000
Gandhi visiting Mehrauli, 7 km south of Delhi,...

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PETITIONER:
Karamjit Singh

RESPONDENT:
State (Delhi Administration)

DATE OF JUDGMENT: 26/03/2003

BENCH:
S. Rajendra Babu & G.P. Mathur

JUDGMENT:

JUDGMENT

G.P. Mathur, J. Karamjit Singh has preferred this appeal against the judgment and
order dated 2.2.1996 of the Designated Judge, New Delhi in Sessions Case
No.140 of 1991, by which he was convicted under Sections 3 and 4 of the
Explosive Substances Act and was sentenced to 5 years R.I. thereunder and
was further convicted under Sections 3 and 5 of the Terrorist and Disruptive
Activities (Prevention) Act (hereinafter referred to as "the TADA") and was
sentenced to 5 years R.I. and 5 years and six months R.I. respectively under
the two counts. The sentences awarded to him were ordered to run
concurrently.
 The case of the prosecution, in brief, is that the appellant Karamjit
Singh at the relevant time was working as driver in Delhi Police and was
residing with his wife in quarter no.B-12 in Police Station Mehrauli, which
had been allotted to his father-in-law, Didar Singh, who was also a
constable. A secret information was received that the appellant was
involved in terrorist activities and that he was allowing the terrorists to stay
in his residence and had also in his possession some explosive material. It
was accordingly decided to conduct a search of his residential premises and
in that connection a raiding party was organised by ACP, Shakti Singh of the
CSS Branch, Operation Cell, Lodhi Colony, New Delhi. Shakti Singh, ACP
along with number of police personnel including R.D. Pandey, Inspector,
Pratap Singh, Inspector and Rajinder Prasad, Sub-inspector proceeded from
their office at Lodhi Colony for appellant's quarter in P.S. Mehrauli at 8.30
a.m. on 8.11.1990. The quarter was locked from outside and, therefore,
they kept a secret watch. At about 11.30 a.m., the appellant along with his
wife arrived there on a scooter. The raiding party disclosed their identity to
the appellant, who tried to run away but he was overpowered and was asked
to open the door of the house. The appellant then opened the lock and the
members of the raiding party entered the same. A steel box was found kept
in the north side of the bedroom, which was also locked. The box was
opened by the appellant and a number of incriminating articles like
explosive material in two separate containers weighing 1.60 kg. and 1.80
kg., four detonators fitted with electric wires, time piece fitted with electrical
wires in the shape of a fixed timer, one pocket watch having electrical wires
which was also a timer, one ampere meter tester, one pair of magnets,
soldering wire, splinters weighing 1.150 kgs., nut and bolts, wrenches and
screw drivers, etc. were found stored therein. The recovered articles were
sealed on the spot. Thereafter a Rukka was sent to the Police Station,
Mehrauli through PW2 Naresh and on the basis thereof PW1 Shashi Bala,
who was on duty, registered a case against the appellant being FIR No.298
of 1990 under Sections 3 and 4 of the Explosive Substances Act and
Sections 3, 4 and 5 of TADA. The appellant was produced in Court on the
next day, where he was taken on police remand. The appellant also give a
disclosure statement. After investigation of the case, charge sheet was
submitted against the appellant on the basis of which cognizance was taken
by the Designated Court. The learned Additional Sessions Judge
(Designated Court No.1), New Delhi, framed charges under Sections 4 and 5
of the Explosive Substances Act and Sections 3 and 5 of TADA on
12.5.1993. The prosecution in support of its case examined 14 witnesses
and filed some documentary evidence. The appellant in his statement under
Section 313 Cr.P.C. denied the prosecution case. He stated that the quarter
was not in his possession and he was not residing there nor any
incriminating articles were recovered from his possession. He also denied
to have made any disclosure statement. He further submitted that he had no
association with any terrorist and had a clean service record while working
as a driver with Delhi Police. He examined one witness, namely, DW1,
Mukhtiar Singh in his defence. The Designated Court, after appraisal of
evidence on record, believed the case of the prosecution and convicted and
sentenced the appellant as mentioned earlier.
 Before examining the contentions raised by Shri K.B. Sinha, learned
senior counsel for the appellant, it will be proper to briefly notice the
evidence which has been adduced by the prosecution to sustain the charge
levelled against the appellant. PW 11 Pratap Singh has deposed that he was
posted as Inspector in CSS Branch, Operation Cell, Lodhi Colony, New
Delhi, on 8.11.1990. On that day, a raid was organised by ACP, Shakti
Singh, at the residence of the appellant Karamjit Singh, who was living in
quarter no.B-12 of P.S. Mehrauli, as a secret information had been received
that he was having explosives in his possession and was helping the
terrorists by allowing them to stay at this residence. At about 8.30 a.m., the
police party headed by ACP, Shakti Singh, started from Lodhi Colony office
and went to Mehrauli. They kept a secret watch at the house of the
appellant, which was locked. At about 11.30 a.m., the appellant came there
along with his wife on a scooter. He was stopped and the raiding party
disclosed their identity on which he tried to run away but he was
overpowered. The appellant was asked to open the lock of his house, which
he did and thereafter all of them went inside the house and found that a box
was kept in the bedroom which was also locked. On the asking of ACP
Shakti Singh, the appellant opened the lock of the box and it was found that
a number of articles like explosives, detonators fitted with electric wires,
time piece, pocket watch, wrenches, wires, soldering material, splinters, etc.,
details of have been given earlier were found there. The articles were sealed
on the spot and a site plan was prepared. The witness has further deposed
that thereafter he prepared a Rukka and after signing the same sent it to P.S.
Mehrauli through PW2 Naresh, Constable, for registration of the case. The
appellant also made disclosure statements on 9.11.1990 and 10.11.1990.
After completing investigation, he sent papers for obtaining sanction from
the concerned officers and after the same had been granted charge sheet was
submitted against the appellant in Court. PW9 R.D. Pandey, Inspector,
and PW10 Rajinder Prasad, Sub-Inspector were also posed in CSS Branch,
Operation Cell, Lodhi Colony, New Delhi on 8.11.1990 and they were
members of the raiding party headed by ACP Shakti Singh and they had also
gone to the residence of the appellant. These two persons have given
exactly similar statements as that of PW11 Pratap Singh and have deposed
about the opening of the lock of the house and the opening of the lock of the
box by the appellant and also recovery of the incriminating articles from
there.
 PW12 Ashok Kumar, Head Constable, Quarter Allotment Cell, Police
Headquarters, New Delhi, produced before the Court the original file
regarding allotment of quarter no.B-12, Type II, P.S. Mehrauli to Constable
Didar Singh. PW7 Didar Singh has deposed that he had married his
daughter Harinder Jeet Kaur to the appellant on 1.9.1990 and at that time he
was posted in PCR Anand Parbat. The appellant at the time of his marriage
was living in village Naharpur near Rohini and he was having only one
room. Since his daughter was facing difficulty there, he asked the appellant
to live in the quarter allotted to him (quarter no. B-12, PS Mehrauli) and
accordingly the appellant started living there about a month prior to the date
on which search of his quarter was made. PW2 Naresh, Constable driver
has deposed that he had driven the Gypsy on 8.11.1990 on which the raiding
party headed by ACP Shakti Singh had proceeded from Lodhi Colony to
P.S. Mehrauli. PW 11 Pratap Singh, Inspector, had given him the Rukka for
being handed over to the Duty Officer at P.S. Mehrauli, which he did. The
Duty Officer after registering the case gave him a copy of the FIR which he
handed over to Pratap Singh. PW1 Shashi Bala has deposed that she was
Duty Officer at P.S. Mehrauli on 8.11.1990 and on the basis of the Rukka
brought by Naresh, Constable, at 1.30 p.m., she registered a case against the
appellant under Sections 3 and 4 of the Explosive Substances Act and
Sections 3, 4 and 5 of the TADA as FIR no.298 of 1990. PW3 Babu Khan,
Head Constable deposed that PW11 Pratap Singh, Inspector deposited the
case property at P.S. Mehrauli on 8.11.1990 as per the recovery memo and
filed the photocopy of the entry made regarding the same in the register.
 PW4 Om Prakash Khatri, Inspector, Operation Cell, deposed that the
appellant made a disclosure statement on 9.11.1990 that he could get
recovery of arms, ammunitions and explosives made from some places in
Delhi and Punjab. Similar statements about disclosure statement having
been made by the appellant have been given by PW5 Kartar Singh, S.I. of
Operation Cell. He also deposed that the appellant had further stated that he
could get Jarnail Singh @ Jilla who was Lt. General of BTFK, Sukhvinder
Singh Chadha, Vikram Jit Singh Bittu and some others arrested. PW13,
Sukhdev Singh, who was Deputy Commissioner of Police, Special Cell,
proved the sanction accorded by him on 12.9.1991 and PW14 M.V. Siddiqui
Deputy Secretary, Home also proved the sanction given by him. Both the
witnesses have stated that the sanction was granted by them after perusal of
the documents of the case.
 The appellant examined one witness in his defence, namely, DW1,
Mukhtiar Singh, who is Surpanch of village Guddar Tadi, District
Ferozepur. He deposed that Karamjit Singh belongs to his village and he
knew him and also his family members for the last 40 years. The appellant
had clean antecedents and he was never involved in any criminal case.
 We have given above the gist of the evidence which is available on
the record. The fact that quarter no.B-12 in P.S. Mehrauli had been allotted
to PW7 Didar Singh is proved by the statement of PW12 Ashok Kumar,
Head Constable. Didar Singh has deposed that he had given the said quarter
to the appellant and the appellant along with his wife was living there for
about a month before the occurrence. It is important to note that Didar
Singh is the father-in-law of the appellant and there is absolutely no reason
why he would depose falsely to implicate his own son-in-law. It is,
therefore, fully established that the appellant was residing in quarter no.B-
12, from where the recovery had been made. There is direct testimony of
three witnesses, namely, PW9 R.D. Pandey, PW10 Rajinder Prasad and
PW11 Pratap Singh that it was the appellant who opened the lock of his
residential quarter and thereafter he opened the lock of the box, which was
kept in the bedroom and from the said box considerable amount of
incriminating articles which could be used for making bombs etc. were
recovered. The testimony of these three witnesses is corroborated by the
statement of PW2 Naresh, the driver of the vehicle on which they went from
Operation Cell, Lodhi Colony to the quarter of the appellant in PS Mehrauli.
No doubt he is not a witness of the recovery itself as he remained sitting in
the vehicle but he does corroborate the testimony of the aforesaid three
witnesses regarding the fact that some police personnel including the
aforesaid three witnesses had gone to the quarter of the appellant in the
morning of 8.11.1990. The testimony of PW3 Babu Khan, establishes the
fact that the recovered articles were deposited as case property at Police
Station Mehrauli by PW11 Pratap Singh. The testimony of these witnesses
conclusively establishes the charge levelled against the appellant that he was
keeping in his possession considerable amount of explosives and other
materials which could be used for making a bomb. The defence witness
examined by the appellant belongs to a village in District Ferozepur and he
has merely deposed about the good character of the appellant. His
testimony has no bearing on the factum of recovery made from the
possession of the appellant and is thus of no assistance to him. The
evidence on record, therefore, establishes the guilt of the appellant beyond
any shadow of doubt.
 Shri Sinha, learned senior counsel for the appellant, has vehemently
urged that all the witnesses of recovery examined by the prosecution are
police personnel and in absence of any public witness, their testimony alone
should not be held sufficient for sustaining the conviction of the appellant.
In our opinion the contention raised is too broadly stated and cannot be
accepted. The testimony of police personnel should be treated in the same
manner as testimony of any other witness and there is no principle of law
that without corroboration by independent witnesses their testimony cannot
be relied upon. The presumption that a person acts honestly applies as
much in favour of police personnel as of other persons and it is not a proper
judicial approach to distrust and suspect them without good grounds. It will
all depend upon the facts and circumstances of each case and no principle of
general application can be laid down. PW11 Pratap Singh has clearly stated
in the opening part of his examination-in-chief that ACP Shakti Singh asked
some public witnesses to accompany them but they showed their
unwillingness. PW10 Rajinder Prasad, SI has given similar statement and
has deposed that despite their best efforts no one from public was willing to
join the raiding party due to the fear of the terrorists. Exactly similar
statement has been given by PW9 R.D. Pandey. We should not forget that
the incident took place in November 1990, when terrorism was at its peak in
Punjab and neighbouring areas. The ground realities cannot be lost sight of
that even in normal circumstances members of public are very reluctant to
accompany a police party which is going to arrest a criminal or is embarking
upon search of some premises. At the time when the terrorism was at its
peak, it is quite natural for members of public to have avoided getting
involved in a police operation for search or arrest of a person having links
with terrorists. It is noteworthy that during the course of the cross-
examination of the witness the defence did not even give any suggestion as
to why they were falsely deposing against the appellant. There is absolutely
no material or evidence on record to show that the prosecution witnesses had
any reason to falsely implicate the appellant who was none else but a
colleague of theirs being a member of the same police force. Therefore,
the contention raised by Shri Sinha that on account of non-examination of a
public witness, the testimony of the prosecution witnesses who are police
personnel, should not be relied upon has hardly any substance and cannot be
accepted.
 Shri Sinha has next urged that PW5 Kartar Singh, SI of Operation
Cell had admitted in his cross-examination that he had gone to P.S. Mehrauli
in connection with some official work at about 10.00 a.m. on 8.11.1990 and
had seen PW9, PW10 and PW11 and ACP Shakti Singh interrogating the
appellant Karamjit Singh in the room of I.O. and this clearly contradicted the
testimony of the prosecution witnesses that the appellant came at 11.30 a.m.,
opened the lock of the quarter and thereafter the recovery was made.
According to learned counsel, the testimony of this witness completely
shatters the prosecution case that the raiding party kept a watch on the
locked premises and the appellant arrived at the scene only at 11.30 a.m. In
our opinion the learned counsel has tried to make a mountain of a mole hill
from a stray sentence in the cross-examination of the witness. In his
examination-in-chief which was recorded on 21.5.1994 PW5 has not stated
anything regarding the time when he saw the appellant being interrogated.
He was cross-examined on 23.7.1994 i.e. nearly three years and 9 months
after the incident. After such a long gap he may not be remembering the
exact time when he reached the police station. PW11 Pratap Singh has
clearly stated in his cross-examination that SI Kartar Singh had come to the
Police Station in pursuance of a wireless message sent to the Operation Cell
by ACP Shakti Singh and that he came after 3.30 4.00 p.m. Therefore, it
is not at all possible to discard the testimony of the prosecution witnesses
merely on account of a stray sentence appearing in the cross-examination of
PW5.
 Shri Sinha has also urged that the quarter was not in exclusive
possession of the appellant and, therefore, it cannot be held that the
incriminating articles were recovered from his possession. As mentioned
earlier, PW7 Didar Singh who is none else but the father-in-law of the
appellant, has deposed that he had given the quarter to the appellant and he
was residing therein for about a month prior to the occurrence. The
testimony of PW9, PW10 and PW11 clearly establishes that it was the
appellant who had opened the lock which was put on the front door of the
quarter and he had also opened the lock which was put on the box from
where the incriminating articles had been recovered. The box having been
found in the quarter which was in possession of the appellant and the fact
that he was keeping the key of the lock of the box can lead to the only
conclusion that articles found in the box were in his possession.
 Having given our careful consideration to the submissions made by
the learned counsel for the parties, we are clearly of the opinion that the
prosecution has established its case against the appellant beyond any shadow
of doubt and there is absolutely no ground which may warrant interference
with the impugned judgment and order of the Designated Court. The appeal
is accordingly dismissed.

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