MAN MOHAN DAS Vs. MOHENDRA BHOWAL

JUDGEMENT

(1.) This is a petition praying that certain proceedings pending in the Court of a Magistrate of Dibrugarh be quashed. It appears that the petitioners and the opposite party were partners and it was suggested that the petitioners had converted to their own use the share of the profits to which the opposite party was entitled. It. was also suggested that the petitioners had misappropriated or converted to their own use the books of the partnership. Eventually the petitioners were prosecuted for offences under Sections406 and 424, Indian Penal Code.

(2.) The petitioners have urged before us that they cannot be prosecuted under Section 406 or Section 424 because the parties are partners. All are joint owners of the partnership assets and each is only entitled to such part of the profits as on account would show is due to him. It is clear that one partner cannot sue another for his share of the profits. It has been held repeatedly that one partner if he desires to claim what he alleges is due to him from the other partners he must file partnership suit, claim a dissolution of partnership and an account and payment to him of what is found due on taking the account. The only sum due from one partner to another is what is shown to be due to him after taking account of all the partnership transactions.

(3.) It was suggested in this case that this partnership had made a profit and that the opposite party's share was being withheld from him. Whether or not this partnership made a profit in that particular year could only be ascertained on taking an account and further it is only after taking such an account that it could be said that any sum whatsoever was due to the opposite party. It cannot possibly be a criminal offence to withhold payment in the circumstances.