SOBHA SINGH Vs. JAI SINGH

JUDGEMENT

(1.) This is a revision petition against the order of the learned Sessions Judge of Mandi, whereby he refused to interfere with the trial under Section 409, I. P .C., pending against the petitioner in the Court of the Magistrate, First Class, Mandi. In this revision petition, I am requested to revise the order of the learned Sessions Judge and quash the criminal proceedings pending against the petitioner in the Magistrate's Court. During the hearing of this revision petition, an application, purporting to be under Sections 561A, 439 and 344, Cr. P. Code, was moved by the petitioner. Therein, I am requested, in the alternative, to stay the proceedings in the Magistrate's Court pending the decision of civil proceedings between the parties. I have heard learned counsel for the parties as well as learned Government Advocate. Proceedings against the petitioner were started on a complaint filed by one Jai Singh, who alleged that the petitioner, who was his partner in a weaving factory, had misappropriated certain sums of money, which had been entrusted to him. No evidence has been so far recorded in the Magistrate's Court. The Magistrate has himself remarked that, without recording the complainant's evidence, he could not arrive at a finding if a prima facie case is made out against the petitioner or not.

(2.) Before the learned Sessions Judge and here, it was argued that the petitioner could not be prosecuted under Section 409, I. P. C., at the instance of a copartner, as every partner in the concern has a share in all the assets of the partnership. Counsel further pointed out that the partnership was created in 2003 B., corresponding to 1946 A. D. The weaving factory stopped work the following year and the present complaint was filed in 1952. It is further pointed out that no report was ever lodged to the police.

(3.) In support of his contention, learned counsel cited--'Rahaman v. R.D. Khambatta', AIR 1949 Cal 89 (A), where a Division Bench of the Calcutta High Court observed :