complaint was lodged fourteen (14) years after the
original date of partnership without accounting for the
delay and having failed to specify any recent dates on
which the alleged offence of cheating/misappropriation
were allegedly committed by petitioner no. 1, the
motive behind the FIR becomes very questionable
since it has not even been mentioned in the complaint
that the complainant at any time in writing
demanded production of the Partnership accounts or
Books during the long period of 14 years. His
allegation of having verbally made such demand only
on 20.03.2012 without any explanation of the previous
delay also hits his case badly, specially considering
that he seeks to impute the allegations of criminal
misappropriation/ breach of trust upon his admitted
Partner in respect of the Partnership money, which, as
has been observed earlier, is not legally sustainable.
For the aforesaid reasons, in the opinion of this Court,
continuation of the criminal proceedings against the
petitioners would be a clear abuse of the process of
Court.22.
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon’ble Justice Sudip Ahluwalia
C.R.R. 3393 of 2014
Smt. Malabika Mondal & Anr.
Vs.
The State of West Bengal & Anr.
Judgment On : 20-05-2016
In this Revisional application the petitioners have prayed
for quashing the proceedings arising out of Thakurpukur
P.S. Case No. 202 of 2012 dated 05.05.12, pending in theCourt of the Ld. Additional Chief Judicial Magistrate at
Alipore, South 24 Parganas.
2. The Opposite Party No. 2/De facto-complainant had filed
the petition of complaint in the Ld. Court below under
Section 156(3) of the Cr.P.C. The aforesaid FIR was
thereafter drawn up under Sections 406/420/323/34 of
the IPC. In the complaint it had been alleged that the
complaint and the petitioner no. 1 from their respective
joint funds had started an Educational business under
the name and style of ‘Sabuj Sathi’ in 1998. Thereafter
the petitioner no. 1 took charge of as Principal of the
school with consent of the complainant. She is then
alleged to have deposited the School collections towards
tuition fees, development fees, selling of books and
uniforms to the students etc. in her own personal
account and not in the joint School account opened with
the Punjab National Bank, Ketopool Branch, Sakuntala
Park, Kolkata- 700 061. She is also alleged to have
instructed the parents of the students to make all
payments to her in her personal name in order to cheat
the complainant of his dues. In this manner she is
alleged to have misappropriated money to the tune of Rs.
50,00,000/- (Fifty lacs) or more in connivance the
petitioner no. 2 who is her own son. The complainant
had further alleged that on 20.03.2012 he requested the
petitioner no. 1 to produce the Books of Account relating
to the profit and loss for the period between 2001 to
2012. But she refused to do so. On the contrary she and
her son (petitioner no. 2) allegedly used filthy language
against the complainant and forcibly ousted him from the
premises by means of physical assault after which he
was obliged to lodge a General Diary in ThakurpukurP.S., and subsequently filed the petition under Section
156(3).
3. After completion of investigations the Police submitted
charge sheet against the petitioners under Sections
406/420/323/34 of the IPC. They have both challenged
the same in this Revisional Application. The specific
assertion of the petitioners is that the complaint/FIR
lodged against them was false and motivated and that
the complainant had suppressed the fact that he had
voluntarily withdrawn himself from the partnership. To
support this contention, the petitioners have mentioned
various facts and incidents narrated in Para 5 the
Revisional Application the relevant ones of which are
noted below –
a) On July 28, 1998 the parties entered into a Deed of
Partnership for the purpose of carrying on the
business of running the educational institution
namely “Sabuj Sathi”.
b) The initial capital of the institution “Sabuj Sathi”
consisted of Rs. 40,000/- contributed jointly by
both parties. The opposite party No. 2 had also
invested Rs. 1,00,000/- in cash, at the time of
setting up of the institution which was later
refunded by the petitioner No. 1 on dissolution of
the partnership.
c) The institution was set up in a rented house at 175,
Biren Roy Road (West), Kolkata – 700061, P.S.
Sarsuna, South 24 Parganas.d) Under the Agreement (Annexure-P3), the petitioner
No. 1 was authorized to run the institution and has
been running the said institution by herself from its
very inception.
e) The said deed of July, 1998 was however cancelled
by way of the complainant’s declaration dated
December 2, 1998 (Annexure –P4).
f) A fresh Agreement was thereafter made between
them on September 27, 2002(Annexure-P5).
g) On March 10, 2003, the complainant finally
executed a Deed of cancellation of Partnership
(Annexure-P6).
h) He then wrote to the Municipal Authority seeking
cancellation of his name from the institution’s Trade
Licence due to ‘personal reason’ vide letter dated
March 31, 2003 (Annexure – P7).
i) On June 26, 2003 the trade licence department of
the Kolkata Municipal Corporation charged a
cancellation fee of Rs. 100/- for deleting the
complainant’s name and issued a fresh Trade
Licence in the name of the petitioner No. 1 as the
sole proprietor thereof (Annexure-P8).
j) After retiring from the partnership, the tenancy
agreement was also renewed on March 12, 2003 in
the name of the petitioner No. 1 by her landlady.
k) Thus the petitioner No. 1 since the beginning of the
institution, particularly since 2003, has beenmanaging the said institution on her own and after
the dissolution of the partnership on March 10,
2003 has been the sole proprietor of the said
institution as would, inter alia, appear from the
record of the Kolkata Municipal Corporation.”
4. The petitioners have also stated that the complainant
had separately filed an application under Section 11 of
the Arbitration and Conciliation Act being A.P No. 1068
of 2014, in which they have already appeared and filed
their written objections after which the matter is pending
its final adjudication. It is also the case of the petitioner
no. 1 that since the beginning of the Institution and
particularly since 2003, she has been managing the same
of her own after dissolution of the Partnership on March
10, 2003 and is now the sole proprietor of the said
institution.
5. Both the petitioners therefore contend that the aforesaid
criminal proceedings against them are liable to be
quashed since the complainant has wrongly sought to
give a criminal colour to what is essentially a civil cause
of action, with an ulterior motive for “wrecking vengeance
with a view to spite them due to private and personal
grudge”. They have also placed certain Judgments before
this Court to the effect that no case of criminal
misappropriation or breach of trust lies against a person
who is admittedly a partner of the complainant.
6. In “Bhuban Mohan Das Vs. Surendra Mohan Das”
reported in [1951]0 AIR (Cal) 69/ [1951] 55 CalWN
541/ [1951] 0 CrLJ 723 in Criminal Revision no. 585 of
1950 a reference was made to a Full Bench of this Court
on the question, “Can a charge under Section 406,Penal Code 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?”. The Full
Bench in deciding this question made the following
observations -
“(12) The point which had to be considered in that
case was whether a partner who had retained
certain of the partnership assets could be said to
have acted in a fiduciary capacity. At p. 346 Chitty J.
observed: "the case of a partner is quite different
from these cases, because he receives money
belonging to the firm on behalf of himself and his copartners
and it appears to me that I should be
straining the law if were to hold that a partner
receiving money on account of the partnership that is,
on behalf of himself and his co-partners received it in
a fiduciary capacity towards the other partners The
law allows one partner one of several joint creditors--
to receive the whole debt on account of the firm to
whom it is due, and I am unable to recognise any
such distinction, as was endeavoured to be made by
Mr. Church, between the case of a partner receiving
money of the firm and not accounting for it, and that
of a partner overdrawing the partnership account ;
because if this distinction were true, it would apply
to every case where one partner wrongly overdraws
the partnership account. "
(14) If a partner who receives money on behalf of the
partnership does not receive it in a fiduciary capacity
then it appears to me that he could not be charged
with fraudulent breach of trust by reason of hisfailing to account for that money. Similarly, if a
partner is holding property belonging to the
partnership, he is holding it as one of the
partners entitled to hold it and, therefore, I
think it could not be said that he was holding it
in a fiduciary capacity, that is, as a kind of
trustee for himself and his other partners. If he
could not be said to be holding the property in a
fiduciary capacity then it is difficult, and
indeed impossible, to hold that he could be said
to have been entrusted with that property.
(33) WHETHER or not a partner can be said to have
been entrusted with property must depend upon
whether there is any special agreement between the
parties. If there is no special agreement he does not
receive property in a fiduciary capacity. It might be
that if there was a special arrangement between the
partners then it could be said that a partner was
entrusted with property or with dominion over it. For
example, if by the terms of the partnership
agreement one partner was given the sole right
to possession of the partnership assets or to
receive moneys on behalf of the partnership
then such a partner might, though it is
unnecessary to hold it, be said to have
entrusted another partner with money if he
gave such other partner money for a specific
purpose. It is unnecessary in this case to decide in
what circumstances there can be entrustment. But all
we need say is that by special agreement between
the parties entrustment might be possible, and if
entrustment was possible then a breach of conditions
or arrangement might render the person accusedguilty of fraudulent breach of trust. However I am
satisfied that in ordinary cases where a partner
receives moneys or an asset belonging to a
partnership, or holds moneys or assets of a
partnership, he does not hold that money in a
fiduciary capacity. He cannot even be sued for a
share in the moneys or assets by his co-partner
(34) The only remedy of a co-partner is an account
and until such an account is taken it cannot be said
whether the co-partner has any interest at all in the
asset or money. As pointed out in the case of Gopala
Chetty v. Vijayaraghavachariar, (1922-1 A. C. 488:
AIR (9) 1922 P. C. 115), decided by their Lordships of
the P. C. , even after dissolution a co-patnr has no
right to sue for his share of an asset. It appears to me
that if a co-patnr has no right to sue to recover his
share it cannot possibly be said that his co-patnr is
holding that share in trust for him. If the patnr holds
partnership property in a fiduciary capacity he would
be holding it in trust for his co-partners and his copartners
could sue. But it has been laid down
beyond all question that the co-partners cannot sue
and that their only remedy is an account and to
recover only what is ultimately found due on taking
the account. It appears to me that in those
circumstances it cannot be said that a patnr who
receives or holds property of a partnership is
entrusted with the property or dominion over it, and
that being so it appears to me that the answer to
question 1 must be in the negative.
(54) The reason, therefore, of holding that a patnr.
cannot be prosecuted by another patnr for criminalbreach of trust in respect of partnership property
under Section 406, Penal Code, is two-fold. The
nature, character and incident of partnership
property are such that during the subsistence of the
partnership there cannot be, except by special
agreement with which we are not concerned here,
any entrustment or dominion and secondly
partnership property is net a specific and
ascertainable property and is of so equivocal and
problematic a nature until dissolution and 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
and 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 patnr as against the others or
so as to give exclusive dominion of such
property to one patnr as against the other that
there can be any scope of application of Section
405, Penal Code.
(62) IT is quite clear, therefore, that 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
partner or partners. In the absence of such an
agreement, each partner 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.”The Bench ultimately held that there could not have been a
breach of trust in the given case as there was no evidence
by which the partnership assets were converted into
separate property of the partners.
7. In“Velji Raghavji Patel Vs. The State of
Maharashtra” reported in [1965] 0 CrLJ 431 / [1965] 2
SCR 429 / [1965] 0 AIR (SC) 1433, in deciding a similar
question, the Supreme Court observed -
“6. It seems to us that the view taken in Bhuban
Mohan Rana’s case, ILR (1952) 2 Cal 23, by the later
Full Bench of the Calcutta High Court is the right one.
Upon the plain reading of S. 405, I.P.C. it is obvious
that before a person can be said to have committed
criminal breach of trust it must be established that he
was either entrusted with or entrusted with dominion
over property which he is said to have converted to
his own use or disposed of in violation of any
direction of law, etc. Every partner has dominion over
property by reason of the fact that he is a partner.
This is a kind of dominion which every owner of
property has over his property. But it is not dominion
of this kind which satisfies the requirements of S.
405. In order to establish "entrustment of dominion"
over property to an accused person the mere
existence of that person s dominion over property is
not enough. It must be further shown that his
dominion was the result of entrustment. Therefore, as
rightly pointed out by Harris, C. J., the prosecution
must establish that dominion over the assets or a
particular asset of the partnership was, by a special
agreement between the parties, entrusted to the
accused person. If in the absence of such a specialagreement a partner receives money belonging to the
partnership he 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 properties.
7. Mr. Chatterjee who appears for the respondent
sought to show that there was special agreement in
this case. According to him, by virtue of certain
decisions taken at a meeting of the partners held on
January 7, 1959 the appellant had been entrusted
with the duty of making recoveries of monies from the
debtors of the firm and, therefore, this was a case of
specific entrustment. All that he could point out was
item No. 15 in the minutes of that meeting which runs
thus:
Shri Veljibhai agrees to recover the monies due by
Shri Kablasingh immediately and shall deposit the
same with the Bankers of the firm."
He has, however, not been able to explain the next
item in the minutes, the irrelevant portion of which
runs thus:
"(16) If in future any further motleys are required to
be spent the same shall be spent out of the recoveries
of the firm and no partner shall be bound or
responsible to bring in any further money.
Reading the two together the meaning seems to
be only this that as working partner the
appellant should carry on the work of recovery
of the dues of the partnership and that in
respect of the dues from one Kablasingh it was
decided that they should be deposited in thebank. It does not follow from this that any of
the other partners was precluded from making
the recoveries. Further, even if this is said to be a
mandate to the appellant item 16 authorises him to
spend the money for the business of the partnership.
That is to say, if the money was required for the
business of the partnership it was not obligatory
upon the appellant to deposit it in the bank. In our
opinion, therefore, the appellant cannot be said to
have been guilty of criminal breach of trust even with
respect to the dues realised by him from Kablasingh
and in not depositing them in the bank as alleged by
the prosecution.
8. Mr. Chatterjee finally contends that the act
of the appellant will at least amount to
dishonest misappropriation of property even
though it may not amount to criminal breach of
trust and, therefore, his conviction could be
altered from one under S. 109 under S. 403,
Section 403 runs thus:
"Whoever dishonestly misappropriates or converts to
his own use any movable property, shall be punished
with imprisonment of either description for a term
which may extend to two years, or with fine, or with
both.”
It is obvious that an owner of property in whichever
way he uses his property and with whatever
intention will not be liable for misappropriation and
that would be so even this is not the exclusive owner
thereof. As already stated, a partner has,
undefined ownership along with the otherpartner over all the assets of the partnership. If
he chooses to use any of them for his own
purposes he may be accountable civilly to the
other partners. But he does not thereby commit
any misappropriation. Mr. Chatterjee’s alternative
contention must be rejected.
9. In the result we allow the appeal and set aside the
conviction and sentence passed against him.”
8. In “Smt. Shyamarani Garg & Anr. Vs. The State of
West Bengal & Anr.” (CRR No.3391 of 2005), a Single
Judge of this Court in his Judgment dated 31.03.2008
relying upon the ratio in “Velji Raghavji Patel” (supra)
and certain other decisions quoted therein, had directed
quashing of the criminal proceedings against the
petitioners in that case, who were admittedly partners in
a business from which subsequently the complainant's
husband had retired, with the following observations -
“Whether charge under Section 406 of the Indian
Penal Code can 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 fell for
consideration before the Apex Court. (Ref: Mrs.
Dhanalakshmi Vs. R. Prasanna Kumar & Ors. as
reported in AIR 1990 SC 494).
In the said case, it was held, deriving inspiration
from various other judgments, that if a. partner is to
be charged under Section 406 of I.P.C., it must be
held that property belonging to somebody else was
entrusted to him. A partnership firm has no existenceapart from the partners and is not an entity like a
limited company which can own property. If a
partner holds partnership property it cannot be said
that he has been entrusted with his own share in the
property if he had any share in it.
It is worth mentioning that whether or not a partner
can be said to have been entrusted with property
must depend upon whether there is any special
agreement between the parties. If there is no special
agreement, he does not receive property in a
fiduciary capacity.
In the case of Piddock Vs. Burt (3) [1894 (1) Ch.
343], it was held that a partner who receives money
belonging to the partnership on account of himself
and his co-partner does not do so in a fiduciary
capacity. At common law in England no criminal
prosecution can be maintained by one partner
against another for stealing or embezzling by false
pretexts or misappropriating property of the firm.
Partners are regarded in law as joint owners or coowners
of the partnership property.
The relationship is virtually like that of 'comrades in
arms'.
In the case of Velji Raghavji Patel Vs. The State
of Maharashtra, as reported in AIR 1965 S.C.
1433, it was held that an owner of property, in
whichever way he uses his property and with
whatever intention, will not be liable for
misappropriation and that would be so even if he is
not the exclusive owner thereof. A partner has
undefined ownership along with the other partnersover all the assets of the partnership. If he chooses to
use any of them for his own purposes he may be
accountable civilly to the other partners. But he does
not thereby commit any misappropriation.”
9. The Opposite Party/Complainant from his side has
however contended that the facts of the cases cited on
behalf of the petitioners are distinguishable in the
present case since in the cited cases the allegations
pertained to misappropriation from partnership property
while in the present case such partnership property has
been converted to individual property and then siphoned
off, where it is clear that the same was under the control
of the “specially entrusted” accused. Therefore a prima
facie case of criminal breach of trust would be made out.
The complainant has also cited two decisions of the
Supreme Court.
10. In “Anil Saran Vs. State of Bihar & Another”
[(1995) 6 SCC 142] the facts and outcome were as
follows –
“2. The appellant was a partner in M/s.
Agjevinath Films along with the second
respondent, Shiv Prakash, and another
person, Ajit Jai Tilak. The firm was
constituted to distribute, exhibit and exploit
the cinematograph films. The firm had entered
into an agreement with producer, Bhojpuri film
for distribution of ‘Hamari Dulhaniya’ and had
two prints of the films obtained from the
laboratory at Bombay and were arranged for
exhibition in Roopak Cinema. Patna. It is the
case of Shiv Prakash, the complainant onbehalf of M/s. Agjevinath Films, that the first
accused, namely, M/s. Sapna Enterprises,
had contracted on 22.06.1988 to take the film,
exhibit the same and account for the proceeds
in terms of the contract. Pursuant thereto,
M/s. Sapna Enterprises was entrusted with
the second copy of the film for exhibition and
they exhibited the film from 01.07.1988. But
the first accused had not returned the print to
the complainant-second respondent with
ulterior and dishonest intention to make
wrongful gain and to cause wrongful loss to
the second respondent. Subsequently, it came
to the knowledge of Shiv Prakash that the first
accused colluded and conspired with the
appellant and Ajit with an intention to defraud
the second respondent, and the firm exploited
the second copy of the film in the said cinema
and “they stealthy and illegally
misappropriated collections and dishonestly
made wrongful gain for themselves and
caused wrongful loss to the complainant and
the said concern”. It was also alleged that the
appellant and Ajit induced the first accused
by conspiracy to illegally obtain the films
prepared for themselves and fabricated the
documents and thereby Ajit, the first accused
firm and the appellant, in collusion and
conspiracy with common intention to do
mischief, committed the offence referred to
earlier…
8. It is next contended that the appellant,
being a partner in the complainant firm,
cannot be said to have committed criminalbreach of trust of his own funds and that,
therefore, it is a case of civil liability only. The
contention that one partner cannot commit
criminal breach of trust against other
partners, though prima facie alluring, on facts
of this case, it does not appear to be tenable,
Partnership firm is not a legal entity but a
legal mode of doing business by all the
partners. Until the firm is dissolved as per law
and the accounts settled, all the partners have
dominion in common over the property and
funds of the firm. Only after the settlement of
accounts and allotment of respective share,
the partner becomes owner of his share.
However, criminal breach of trust under
Section 406 is not in respect of the
property belonging to the partnership
firm, but is an offence committed by a
person in respect of the property which
has been specially entrusted to such a
person under a special contract and he
holds that property in fiduciary capacity
under special contract. If he
misappropriates the same, it is an
offence.
9. At this stage, we have only to see whether
the allegations made in the complaint make
out the offence prima facie. It is not the case
of the complainant that the appellant and
the other accused Ajit were entrusted with
the dominion of the property of the firm
in their capacity as partners of the
complainant firm. On the other hand, thecomplainant him entered into a contract with
the first accused firm, M/s. Sapna
Enterprises, entrusted the second film for
exhibition and for accounting the sale
proceeds in terms of the contract and to return
the film. They had neither accounted for not
returned the film. The first accused, the
appellant and Ajit therefore, were alleged to
have committed the offences in question.
10. Under these circumstances, we do not
think that the imputations alleged
against the appellant have been done in
his capacity as a partner of the firm.
Whether the offence has been made out,
whether he is liable and what are the
defences open to him are not matters at this
stage for consideration. It is for the learned
Magistrate to proceed with the trial and to
deal with according to law.”
11. In “Debabrata Gupta Vs. S.K. Ghosh” [1970(1)
SCC 521], it was observed -
“10. Counsel for the appellant relied on the
decision of this Court in Velji Raghabji Patel v.
State of Maharashtra, where one of the
partners was convicted of an offence of
criminal breach of trust under Section 409 of
the Indian Penal Code and this Court held that
where a partner realized the sum in his
capacity as partner and utilized them for the
business of the partnership he was only liable
to render accounts to his partners and hisfailure to do so would not amount to criminal
breach of trust. Counsel for the appellant
invoked the application of the same doctrine to
the present case.
11. In order to accede to the contention it has
to be established first that the dispute is only
between the partners and secondly it does not
relate to any special entrustment of property
which constitutes one of the basic ingredients
of an offence under Section 406 of the Indian
Penal Code. This Court in Patel’s case
(supra) approved the decision of the
Calcutta High Court in Bhuban Mohan
Rana v. Surendra Mohan Das and said
that before criminal breach of trust is
established it must be shown that the
person charged has been entrusted with
property or with dominion over the
property. In other words, the offence of
criminal breach of trust under Section
406 of the Indian Penal Code is not in
respect of property belonging to the
partnership but is an offence committed
by the person in respect of property which
has been specially entrusted to such a
person and which be holds in a fiduciary
capacity.
12. In the present case, the appellant
denies that there was any special
entrustment of any property or that he
was holding any property in a fiduciary
capacity. It is neither possible nordesirable to express any opinion on the
merits of such a plea. It is not possible to
do so because the facts are not in
possession of the court and furthermore
the facts cannot be before the court
without proper investigation and enquiry.
It is not desirable to do so because if any such
opinion be expressed it may prejudice or
embarrass either party.”
12. Additional support has been sought by the
complainant’s side from an unreported decision of this
Court in “Barun Kumar Biswas Vs. State of West
Bengal” [C.R.R. No. 2641 of 2012] in which the
Court refused to quash the proceedings on the ground
that “any special purpose of a particular
document or material cannot be appreciated at a
pre-trial stage especially if it pertains to
partnership…….”
13. The decisions relied upon by the complainant/
respondents are however, distinguishable from the
facts of the present case. In each of those decisions it
was held and accepted that criminal proceedings
against a partner in respect of the partnership
property are not maintainable in the absence of a
specific contract regarding and entrustment of such
property.
14. In “Anil Saran” (supra) the proceedings were
allowed to continue as the Court was of the view “we
do not think that the imputations alleged
against the appellant have been done in his
capacity as a partner of the firm.” But in thepresent case admittedly the petitioner No. 1 has
been implicated squarely in her capacity as a
partner.
15. In Barun Kumar Biswas (supra) there was a
further contention that a particular disputed cheque
had been given to the petitioner/accused for a specific
purposes of making payment to the painter, but that
he misappropriated the same to himself after allegedly
having committed forgery by way of inserting the
amount and particulars in the same himself and
thereby had also rendered himself punishable under
Sections 420/406 of the IPC. In this manner there was
clearly a case of a specific ‘entrustment’ to the accused
in that matter.
16. In “Debabrata Gupta” (supra) the Court in
rejecting the application had observed in relation to
the Petitioner’s denial of the existence of any “special
entrustment” that “it is neither possible nor
desirable to express any opinion on the
merits of such a plea … without proper
investigation and enquiry.”
17. From the ratio of the decisions cited it is
unquestionable that there is no scope for any
‘entrustment’ of the partnership property to any
person who admittedly is partner, until and unless
there is a case of any 'specific agreement' of such
entrustment, or that the property in question does not
belong to the partnership. In the present case however
there is absolutely no averment in the petition of
complaint regarding any ‘Special entrustment’ of the
partnership property to the petitioner no. 1, nor hasany material to this effect been produced although
investigation is complete.
18. In a recent decision in “Rajiv Thapar Vs. Madan
Lal” the Supreme Court while dealing with the
proposition of law pertaining to quashing of criminal
proceedings initiated against an accused by a High
Court u/s 482 Cr. P.C., inter alia, held as under -
"29. The issue being examined in the instant case
is the jurisdiction of the High Court under Section 482
of the Code of Criminal Procedure, if it chooses to
quash the initiation of the prosecution against an
accused, at the stage of issuing process, or at the
stage of committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for later
stages as well. The power vested in the High Court
under Section 482 of the Code of Criminal Procedure,
at the stages referred to hereinabove, would have
far reaching consequences, inasmuch as, it would
negate the prosecution's/complainant's case
without allowing the prosecution/complainant to
lead evidence. Such a determination must always
be rendered with caution, care and
circumspection. To invoke its inherent
jurisdiction under Section 482 of the Code of
Criminal Procedure the High Court has to be
fully satisfied, that the material produced by
the accused is such, that would lead to the
conclusion, that his/their defence is based on
sound, reasonable, and indubitable facts; the
material produced is such, as would rule out
and displace the assertions contained in the
charges levelled against the accused; and the
material produced is such, as would clearlyreject and overrule the veracity of the
allegations contained in the accusations
levelled by the prosecution/complainant. It
should be sufficient to rule out, reject and
discard the accusations levelled by the
prosecution/complainant, without the
necessity of recording any evidence. For this
the material relied upon by the defence
should not have been refuted, or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
quality. The material relied upon by the
accused should be such, as would persuade a
reasonable person to dismiss and condemn
the actual basis of the accusations as false.
In such a situation, the judicial conscience of
the High Court would persuade it to exercise
its power under Section 482 of the Code of
Criminal Procedure to quash such criminal
proceedings, for that would prevent abuse of
process of the court, and secure the ends of
justice.
30. Based on the factors canvassed in the
foregoing paragraphs, we would delineate
the following steps to determine the veracity
of a prayer for quashing, raised by an
accused by invoking the power vested in the
High Court under Section 482 of the Code of
Criminal Procedure:
30.1 Step one, whether the material relied
upon by the accused is sound, reasonable,
and indubitable, i.e., the material is of
sterling and impeccable quality?
30.2 Step two, whether the material relied
upon by the accused, would rule out the
assertions contained in the charges levelledagainst the accused, i.e., the material is
sufficient to reject and overrule the factual
assertions contained in the complaint, i.e.,
the material is such, as would persuade a
reasonable person to dismiss and condemn
the factual basis of the accusations as false.
30.3 Step three, whether the material relied
upon by the accused, has not been refuted by
the prosecution/complainant; and/or the
material is such, that it cannot be justifiably
refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the
trial would result in an abuse of process of
the court, and would not serve the ends of
justice?
30.5 If the answer to all the steps is in the
affirmative, judicial conscience of the High
Court should persuade it to quash such
criminal-proceedings, in exercise of power
vested in it under Section 482 of the Code of
Criminal Procedure. Such exercise of power,
besides doing justice to the accused, would
save precious court time, which would
otherwise be wasted in holding such a trial
(as well as, proceedings arising therefrom)
specially when, it is clear that the same
would not conclude in the conviction of the
accused."
19. The complainant has asserted that the aforesaid
decisions are not applicable in the present case since
they pertain to “misappropriation from partnership
property”, but in the present case according to him
such “partnership property has been converted to
individual property”. In the opinion of this Courthowever, such assertion is merely a jugglery of words,
since the alleged act of “conversion of partnership
property to individual property” if done wrongfully
would be nothing different from ‘misappropriation’
from partnership property. In any case there is no
material on record to indicate any specific
‘entrustment’ of property in favour of the petitioner no.
1. The relevant clause in Para No. 9 of the original
partnership agreement dated 28.07.1998 reads as
follows -
“9. It is hereby agreed by and between the
partners that the first partner Smt. Malabika
Mondal is authorized is run who institution
property as per rules and regulations of the
Board of West Bengal, situated at 175, Biren
Roy Road (West) Calcutta – 700 061, P.S
Thakurpukur, on behalf of the educational
institution ‘Sabuj Sathi’.”
20. It was mentioned in Clause 7 of the agreement that
“all moneys, cheques and other securities belonging to
the institution except those required for current
expenses shall be paid into or deposited with the
schedule bank of the institution and that The account
shall be operated by both the partners jointly.” But
according to Clause 10 it was also agreed that the
‘Partners shall keep and maintain paper books of
accounts”. In this manner clearly the complainant
was at no stage precluded from involving himself with
the financial affairs of the institution, exactly as in the
case of “Velji Raghavji Patel” (supra), in which it had
been mentioned -“Reading the two together the meaning seems
to be only this that as working partner the
appellant should carry on the work of recovery
of the dues of the partnership and that in
respect of the dues from one Kablasingh it was
decided that they should be deposited in the
bank. It does not follow from this that any
of the other partners was precluded from
making the recoveries.”
21. In this backdrop of the matter, the fact that the
complaint was lodged fourteen (14) years after the
original date of partnership without accounting for the
delay and having failed to specify any recent dates on
which the alleged offence of cheating/misappropriation
were allegedly committed by petitioner no. 1, the
motive behind the FIR becomes very questionable
since it has not even been mentioned in the complaint
that the complainant at any time in writing
demanded production of the Partnership accounts or
Books during the long period of 14 years. His
allegation of having verbally made such demand only
on 20.03.2012 without any explanation of the previous
delay also hits his case badly, specially considering
that he seeks to impute the allegations of criminal
misappropriation/ breach of trust upon his admitted
Partner in respect of the Partnership money, which, as
has been observed earlier, is not legally sustainable.
For the aforesaid reasons, in the opinion of this Court,
continuation of the criminal proceedings against the
petitioners would be a clear abuse of the process of
Court.22. The Revisional Application is therefore allowed and
further proceedings of ACGR Case No. 5632 of 2012
arising out of Thakurpukur, P.S. Case No. 202 dated
05.05.12 accordingly stand quashed.
[Sudip Ahluwalia, J.]
No comments:
Post a Comment