K.P.S.SANDHU, J. - (1.) BY this petition under section 482 of the Code of Criminal Procedure Shri Parmodh Kumar petitioner has sought the quashing of complaint Exhibit P3 and the summoning order, Exhibit P4, passed by Shri K.S. Bhullar, Judicial Magistrate First Class, Chandigarh. The facts which give rise to this petition are that the petitioner and Shri Satish Kumar respondent entered into partnership on 25 April, 1981, at Chandigarh for carrying on the business of goods transport by road under the name and style of Messrs Vishal Himachal Transport Company. The firm was duly got registered under the provisions of the Partnership Act in the office of the Registrar of Firms, Union Territory, Chandigarh. Through the good offices of the petitioner the firm secured reasonably good business from Himachal Pardesh State Electricity Board, Central Stores Himachal, Parwanoo. The procurement of the business from the Himachal Pradesh State Electricity board, and the receipt of payment were looked after and carried on by the petitioner. The respondent filed a complaint before the Judicial Magistrate First Class, Chandigarh, on 17th January, 1983, alleging that the petitioner with dishonest intention and with a view to misappropriate the funds of the partnership firm committed criminal breach of trust by opening an account in the Punjab National Bank, Parwanoo, in the name of Messrs Vishal Himachal Transport Company and showing himself as the sole proprietor of the same and that he received payments worth Rs. 1,82,000/- in the capacity of the partner of Messrs Vishal Himachal Transport Company but instead of depositing the same in the account of the aforesaid firm in the State Bank of India deposited the same in the account of Messrs Vishal Himachal Transport Company in Punjab National Bank where he had shown himself as the sole proprietor of the firm. Thus, according to the respondent, the petitioner had committed an offence of criminal breach of trust. The learned Magistrate after taking preliminary evidence summoned the petitioner under section 406 of the Indian Penal Code vide his order dated 8th June, 1983, which is Annexure P4 to the petition.
(2.) IT may be relevant to point out at this stage that the respondent filed a suit on 25th April, 1982, against the petitioner for rendition of accounts which is pending disposal in the civil Court. The only and the neat question of law which calls for adjudication in this case is as to whether the payment received by the petitioner can be treated as a trust money with him. In case it cannot be treated to be so, no offence of criminal breach of trust would be made out. A partner of a firm is the owner of the property of the firm though not an exclusive one. An owner of the property, in whatever 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 an undefined ownership along with the other partners 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 certainly he does not thereby commit any misappropriation. A plain reading of section 405 of the Indian Penal Code would show that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with property 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. 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 Section 405 of the Indian Penal Code. To establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is no enough. It must be further shown that his dominion was the result of entrustment.
(3.) MR . H.K. Gupta, Advocate, learned counsel for the petitioner, has placed reliance on a Single Bench authority of this Court reported as Rakesh Kumar and another v. The State of Haryana, 1983(1) C.L.R.97, wherein a petition under section 482 of the Code of Criminal Procedure filed by a partner of a firm for quashing the first information report was allowed. The learned Single Judge by relying upon a Full Bench authority of the Calcutta High Court in Bhuban Mohan Das v. Surendra Mohan Das, AIR 1951 Cal 69, and a Supreme Court authority in Velji Raghavji v. State of Maharashra, AIR 1965 SC 1433, came to a finding that, without any special agreement between the parties to entrust the money of the partnership to a partner, the partner cannot be held guilty of criminal breach of trust. In Bhuban Mohan Das's case (supra) it was held by a Full Bench of the Calcutta High Court that a charge under section 406 of the Indian Penal Code cannot be framed against a person who, according to the complainant, is a partner with him and is accused of an offence in respect of property belonging to both of them as partners. In Velji Raghavjit (supra) it was held by their Lordships of the Supreme Court that, if in the absence of any special agreement a partner receives money belonging to the partnership, he cannot be said to have received it in a fiduciary capacity or, in other words, he cannot be held to have been entrusted with dominion over partnership property.;