LOK NATH Vs. JAGBIR SURI

JUDGEMENT

(1.) THIS revision petition arises in the following circumstances: A complaint Under Sections 406 and 408 R. P. C. was brought by the respondents against the petitioner alleging that the parties, along with some others, had entered into a partnership for running a cinema known as Indira Theatre. The share of the respondents in the partnership business was 25% i. e. 124% each and each of them had to contribute a sum of Rs. 1,75,000/- towards the initial investment which was to be spent exclusively on the construction of the cinema house. A deed of partnership was executed on 1-11-1976. Since the deed was compulsorily registrable, it was agreed that the respondents will contribute their share of investment and hand over the money to the petitioner who will hold it in trust for them till the partnership deed was registered. Pursuant to this agreement, the first respondent paid to the petitioner a sum of Rs. 1,64,750. 00 whereas the second respondent paid to him a sum of Rs. 1,75,000. 00, which was deposited by him with United Commercial Bank, Ashoka Market Jammu. But, the petitioner, before the deed of partnership came to 1982 Cri. L. J. /84 VII be registered on 34-1977, withdrew from the Bank the amounts paid to him by the respondents in violation of the express terms of the special agreement and dishonestly appropriated the same to his own use.

(2.) SUB Registrar Judicial Magistrate, Jammu, to whom this complaint was transferred, dismissed it by his order dated 3-6-1978, without even recording the statements of the complainants on the ground that the partnership deed being silent on its terms, the special agreement set up by the respondents could not be proved against the clear bar contained in Sections 91 and 92 of the Evidence Act, and in the absence of the special agreement, the petitioner, who was admittedly a partner in the firm, could not under law be said to hold the money paid to him by the respondents, which was partnership property, as a trustee thereof.

(3.) THIS order was challenged by the respondents in revision before Additional Sessions Judge, Jammu, who by his order dated 18-4-1978 reversed it on the authority of R. K. Dalmia v. The Delhi Administration, holding that a partner in a firm holding dominion over partnership property was under law merely a trustee qua it and transferred the case to City Magistrate Jammu, for further enquiry.