SAMA SUBBARAYUDU Vs. N V SRIKRISHNA MOHANA RAO

JUDGEMENT

(1.) A complaint was filed before the Judicial Second Class Magistrate, Vijayawada town, on the allegation that the complainant and the accused petitioner herein, entered into a partnership for the purpose of carrying on business in electrical and fancy goods. They executed a partnership deed and according to the terms the firm was to carry on business under the name and style of Sri Seetharama Electrical and Fancy Stores., 1962. The complainant was to be the managing partner of the firm and they had their respective shares of 45 per cent, and 55 per cent, in the profits and losses of the firm. It appears that they carried on business some time until some disputes arose. It is alleged that on the day of the offence when the complainant was busy with some other work, the accused-petitioner took advantage of his absence and at about 10-45 A.,M, broke open the lock put on the partnership premises and that he fraudulently and dishonestly removed all the stocks. When the complainant came to know this, he gave a report to the police and as no action was taken, he filed this complaint under section 424, Indian Penal Code. The Magistrate took it on file and added sections 380 and 454, Indian ' Penal Code, also. The petitioner has come up in revision before this Court challenging the competency of the complaint. V

(2.) It may here be stated that it is an admitted fact that the complainant and the accused are partners in business and it has been represented to me by the learned Counsel for the petitioner that a civil suit has also been filed. Being a partnership business, no partner can claim exclusive interest in the property. They will have only an interest to the extent of their share in the business. Mr. Adavi Rama Rao takes his stand in a case reported in Man Mohan Das v. Mohendra Bhowali,A.I.R. 1948 Cal. 292. in which it has been held that a partner cannot be prosecuted under section 424, Indian Penal Code, for dishonestly and fraudulently concealing or removing the books of the partnership. The complainant-partner has a remedy by way of a civil suit. In another case reported in Jaikrishna v. Crown,,A.I.R. 1950 Nag. 99 it was observed that a partner cannot be guilty of criminal breach of trust or misappropriation and a partner who receives money belonging to the partnership on account of, himself and his co partners does not do so in a fiduciary capacity and therefore the complaint is untenable.

(3.) In Nand Kishore v. Emperor, A.I.R, 1939 All. 710. Mulla, J. has observed that :