BENGALI RAM Vs. HARIHAR RAM

JUDGEMENT

(1.) The accused petitioner has moved this Court ill revision for quashing the complaint filed against him by the complainant-respondent on the allegations as hereunder. The complainant and the accused are the co-owners of the Sweet Meat Shop in question and it was agreed between them in writing that each of them would run this shop by turn for 6 months on rotation and as per such written agreement between them the shop was banded over to the accused to be run by him for a period of 6 months and then to be delivered back by the latter to the complainant to enable him to run the same for the next 6 months and the crux of the complaint is that the accused has refused to deliver possession inspite of the expiry of the period fixed. On receipt of the complaint, the learned Judicial Magistrate examined the complainant and one more witness and bas issued process under Section 406, Indian Penal Code against the accused who has accordingly appeared in Court and got himself enlarged on bail and, as stated at the outset, has moved this Court for quashing the complaint. The only point for consideration before us is whether on the allegations made in the complaint and the statements made by the complainant and his witness, the learned Judicial Magistrate was right in registering a case under Section 406, Indian Penal Code and in issuing- process thereunder.

(2.) It has come out in the statement of the witness for the complainant that if one party does not deliver back the possession of the shop to the other after running it for 6 months as alleged, in such event it was decided that the party remaining out of possession should be paid Rs. 1,500/- in a month. The complainant, while deposing in Court, has not disputed the existence of any such agreement and has only stated Tthat the opposite party instead of handing over the property tome put his son Sambhu in the management of the shop and left SikkimT and that I have, there fore, filed this complaint for necessary action against the opposite party for committing breach of terms and conditions of the agreementTT. Accepting all these allegations to be true, was the learned Judicial Magistrate right in holding that there were sufficient materials to proceed with the complaint under Section 406, Indian Penal Code?

(3.) According to the case made out in the complaint and the statements of the witnesses for the complainant, the accused and the complainant are joint-owners of the shop in question the decision of the Supreme Court in R.K. Dalmia v. Delhi Administration, approving the old Calcutta Full Bench decision in Queen v. Okhay Coomar Shaw must be taken to have settled beyond any dispute that the provisions of Section 405 of the Penal Code are wide enough to include the cases of co-owners, co-partners and the like. It is true that this old Full Bench decision in Okhay Coomar Shaw (supra) has not been approved in a much later Full Bench decision of the same High Court in Bhuban Mohan v. Surendra Mohan and, what is more, this later Full Bench decision of the Calcutta High Court in Bhuban Mohan (supra) has been approved by the Supreme Court in after decision in Velji Raghavji v. State of Maharashtra, without. however, any reference to its earlier decision in R.K. Dalmia (supra), where the earlier Full Bench decision in Okhay Coomer Shaw (supra) stands approved. Be that as it may. the later Supreme Court decision in Velji Raghavji (supra) approving the later Calcutta Full Bench decision in Bhuban Mohan (supra), has not gone to the extent of laying down tl.at in no case a charge under Section 405. Indian Penal Code can be made out against Ii co-owner or a co-partner, but, a pointed out in the judgment (supra, para 6), a copartner can be so charged provided it is proved that he in fact obtained dominion of co-partnership property and that his dominion was the result of entrustment and not merely such dominion which every partner has by reason of the fact that he is a partner.