S.A.Q. HASHMI Vs. STATE

JUDGEMENT

(1.) THIS rule arises on an application under Section 482 of the Cr.P.C. and is for quashing of criminal proceeding in Case No. C 1398 of 1979 pending before the Metropolitan Magistrate, 17th Court, Calcutta including the order dated 3 -8 -1979 issuing summons against the petitioner under Section 409 of the I.P.C.

(2.) ON 3 -8 -1979 a.complaint was filed by the opposite pvy No. 2 describing him as a partner in respect of the business of Customs Clearing and Forwarding Agent etc. in the name and style of M/s. New India Corporation. It is alleged by the complainant that since the early part of 1078 the petitioner behaved in a manner prejudicial to the interest of the firm and the complainant and three instances were stated as overt acts constituting the offence under Section 409 of the I.P.C. After examining the complainant and the two other witnesses the learned Chief Metropolitan Magistrate by the order dated 3rd Aug. 1979 summoned the petitioner under Section 409 of the I.P.C. It is against this order issuing summons that the petitioner has come up to this Court.

(3.) IN support of his contention Mr. Banerjee first refers to a Full Bench decision of this Court reported in : AIR1951Cal69 (Bhuban Mohan Das v. Surendra Mohan Das). In this case it has been held that a charge under Section 406, Penal Code cannot be framed against a person who, according to the complainant, is a partner, with him and is accused of the offence in respect of property belonging to both of them as partners. their lordships were considering the decision reported in AIR 1940 Cal 371 : 41 Cri LJ 796 and came to the conclusion that the said decision would not be regarded as correctly decided. It was further held that the cases may be regarded as rightly decided if they are confined to cases where under special agreements made between the parties entrustment of the property or dominion over it was given to any particular partners. P.B. Mukharji, J., delivering a separate judgment held as follows: The reason for holding that a patnr. cannot be prosecuted by another patnr. for criminal breach of trust in respect of partnership property under Section 406, Penal Code, is twofold. The nature, character & incidents of partnership property are such that during the sub -sistence of the partnership there cannot be, except by special agreement any entrustment or dominion & secondly partnership property is not a specific & ascertainable property & is of so equivocal & problematic a nature until dissolution & accounts, that it is not susceptible to be used in a manner which can bring into operation Section 405, Penal Code. It is only when such ordinary character & nature of the partnership property are varied by special contract of partnership so as to create entrustment of any specific property in favour of one partner, as against the others or so as to give exclusive dominion of such property to one partner as against the other that there can be any scope of application of Section 405, Penal Code. Banerjee, J. in a separate judgment amongst others held: Unless there is an agreement between the partners that a particular property would be the separate property of a partner there cannot be an entrustment of it to the other patnr. or patnrs. In the absence of such an agreement each patnr. is interested in the whole of the partnership assets and there cannot be an entrustment of 'a partner's property' as such by one partner to another, because there is no 'property' which can be entrusted.