JASHBHAI GORDHANBHAI PATEL Vs. HASHMUKHLAL KALIDAS PATEL

JUDGEMENT

(1.) The original accused who are partners with the original complainant have come to this Court for quashing the proceedings of Criminal Case No. 4072 of 1970 instituted in the Court of Judicial Magistrate. First Class Baroda. This case was instituted upon a complaint Sled on May 27 1970 before the learned Magistrate by the opponent No. 1 i.e. the original complainant who will hereafter be referred to as the complainant against the present petitioners original accused Nos. 1 and 2 who will hereafter he referred to as the accused persons. The complainants case was that he and accused persons were partners of a firm known as Messrs. Patel & Company and that all the work and management of the said firm including the work of getting accounts written as well as the work of keeping cash balance was being done by the accused persons. The complainant it was alleged was busy with his own business running in the name of National Engineering Company at Nadiad before the starting of the aforesaid firm and therefore could not give any time to the work of the firm in which the accused were partners. The complaint then contains narration of certain facts relating to taking of books of accounts of several years from the accused persons and the correspondence between the parties. The complaint by the very terms is restricted to an alleged criminal breach of trust by the accused in the sum of Rs. 9956.81 and this allegation is based on the fact that in the Kachha rojmel of 2021 there was a credit entry of Rs. 9956.61 as the amount realised from sales. In its place the amount credited was only Rs. 225.14 therefore the balance of Rs. 9731.67 was misappropriated by the accused persons. On the same facts the complainant also stated that both the accused persons committed an offence under sec. 477A of the Indian Penal Code. In the verification of the complaint the complainant stated that books of accounts were written by the Munim of the firm and it appears to be his case that the accused persons got these entries made by the Munim. Therefore the complaint was filed against the accused persons under sec. 406 and 477A of the Indian Penal Code. On this complaint the learned Magistrate ordered process to issue. After passing of this order the petitioners came to this court for quashing the proceedings saying that the allegations made in the complaint do not disclose any offence which would be committed by the accused persons as they were partners of the firm with the complaint.

(2.) At the hearing of this petition Mr. Bhatt the learned advocate for the petitioners urged that unless by a special agreement between the partners the work of receiving cash belonging to the partnership was exclusively given to another partner it could not be said that a partner who received amounts of the firm in the ordinary course as a partner received it in a fiduciary capacity because in the eyes of law he is also the owner of that amount. He relied upon the decision of the Supreme Court for the proposition advanced by him. That decision is reported in Velji Raghavji v. State of Maharashtra A.I.R. 1965 S.C. 1433. Prior to this decision there was difference of opinion between the Calcutta High Court and the Bombay High Court on the question whether a partner. who receives moneys of the firm can be said to be entrusted with those moneys or has a dominion over then. A full Bench of the Calcutta High Court held in Bhuban Mohan Das v. Surendra Mohan Das A.I.R. 1951 Cal. 69 that a partner who receives partnership property has dominion over that property as a partner quite apart from any arrangement with his other partners. It was further observed :-

(3.) Mr. Vin then submitted that the learned Magistrate had taken cognizance of the offence under sec. 477A of the Indian Penal Code and therefore the question whether there was any special agreement will depend on the leading of evidence. Therefore there was no reason to interfere under sec. 561A of the Criminal Procedure Code at this stage. Now the question as to when High Court should interfere under sec. 561A of the Criminal Procedure Code has been dealt with by the Supreme Court in R. P. Kapoor v State of Punjab A.I.R. 1960 S.C. 866. It was held that the inherent jurisdiction of the High Court could be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It was also observed that it was not possible desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. Then some of the categories of case where the inherent jurisdiction to quash proceedings can and should be exercised were given. Three such categories were indicated and the second category is relevant for our purpose. It reads:-