K.V. SUBBIAH Vs. T. CHALAPATHI RAO

JUDGEMENT

(1.) The petitioner herein (who is the same in both these revision petitions) was the Managing Partner of the firm 'Janaranjani Films' at Madras. The respondent and another Suryanarayana were the other two partners. Clause 15 of the partnership agreement provided that all monies belonging to the firm should be remitted into a scheduled Bank viz., the Andhra Bank at T. Nagar, by all the partners. On 10th July, 1968, a cheque for Rs. 2,000 on the Bank of Baroda was issued in favour of the aforesaid firm by Messrs. Ramalakshmi Movies, who had entered into an agreement for exploiting a picture in the City of Madras. The respondent received this cheque, affixed his signature as partner of Janaranjani Films, had it attested by the Andhra Bank at T. Nagar and cashed the same at the Bank of Baroda. He did not remit the amount, but misappropriated the same. Similarly, he had misappropriated another amount of Rs. 10,000 which he had collected from one Rayala Films at Vijayawada, on 23rd September, 1968. Two complaints were presented by the petitioner in the Court of the 3rd Presidency Magistrate, Madras, and these complaints which were taken on file for an offence under Section 406, Indian Penal Code, were transferred for disposal to the 6th Presidency Magistrate, Saidapet, Madras. Observing that every partner has dominion over the partnership properties and stating that there was no entrustment of any amount by the petitioner with the respondent, the learned Magistrate has discharged him in both the cases, under Section 253(2) of the Criminal Procedure Code. The correctness of these orders is now canvassed in these revisions.

(2.) On behalf of the petitioner, it is contended that the order of discharge under Section 253 (2) without recording any evidence, could not be sustained. Section 253 of the Code reads thus:

(3.) Next it is urged that the discharge of the accused on the ground that as between partners there could be no charge under Section 406 of the Indian Penal Code, is erroneous and could not be sustained. Under Section 405 of the Indian Penal Code, whoever being in any manner entrusted with the property or with any dominion over property, dishonestly misappropriates or converts for his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which the trust has to be discharged or if any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust. Ordinarily, a partner does not in the ordinary course hold partnership property in a fiduciary capacity, because the partnership property belongs to the partners, and one partner has as much right to the property as any other partner. In other words, the partner who holds the partnership property, holds it in his own right and it cannot be said that he holds it in a fiduciary capacity. This is on the basis that the partnership assets cannot be predicated until an account has been taken and all the debts have been discharged and till this is done, it cannot be said that a particular asset belongs to a particular partner. But in a case where there is some special agreement it would be different. Where it could be made out that one partner was entrusted with the property or with dominion over it, no difficulty would arise. But, where a partner receives partnership property without any special agreement there can be no breach of trust. It may be that by a special arrangement between the parties, the partner could be regarded as being entrusted with the property, but apart from such special arrangement, it cannot be said that the partner who receives partnership property on behalf of his partners, has been given dominion over that property by his co-partners. Thus, in some circumstances, a partner can be charged under Section 406 of the Indian Penal Code. Even then, the question of dishonset conversion would arise for consideration so as to justify a conviction. In other words, by special agreement between the parties entrustment or dominion over property might be possible, and in such a case a breach of any condition or arrangement might render the person accused, guilty of fraudulent breach of trust. The learned Magistrate has relied upon the decision reported in Velji Raghavji Patel v. The State of Maharashtra, 1965 CrLJ 431 , and said that since every partner has dominion over the partnership property there can be no question of one partner committing breach of trust in respect of the property received by him. Even in this case, their Lordships have pointed out that in a case where the prosecution establishes that dominion over the assets or a particular asset of the partnership was by special agreement between the parties, entrusted to the accused person, there could be a case of breach of trust. But, in a case where there is no special agreement, a partner who receives money belonging to the partnership cannot be said to have received it in a fiduciary capacity, or in other words, cannot be held to have been entrusted with dominion over partnership property.