A partner cannot be convicted under section 409, Indian Penal Code for failing to account for monies belonging to the firm in which he was a partner.

MUDHOLKAR J. -In this appeal from the judgment of the Bombay High Court the question which falls to be considered is whether a partner can be convicted under section 409, Indian Penal Code on the ground that his failure to account for monies belonging to the firm in which he was a partner amounts to criminal breach of trust.

2. The admitted facts are briefly these:

The firm, Messrs. Bharat Silp Pramandal, which was formed for carrying on the business of building construction, originally consisted of eight partners and the appellant was its working partner. This firm was constituted in the year 1954. But on February 6, 1957 three of the partners retired and the business was continued by the remaining five partners. Disputes arose amongst them, which were referred to arbitration of Mr. J. T. Desai, a Solicitor. Apparently, in pursuance of his award a fresh agreement (Ex. N) was entered into by the partners on June 4, 1958. By virtue of this agreement the appellants share in the firms business was to be of 50 nP. in a rupee while the other partners had different shares in the remaining 50 nP, Nagindas jivraj Mehta, who is the complainant in this case had a share to the extent of 6 nP. Under this agreement the parties decided not to undertake new work. The agreement required the appellant to complete all the accounts and prohibited from borrowing money in the name of the firm. It required him "to use his best efforts to realise all pending bills, security deposits, claims etc." as well as to dispose of the plant, machinery etc. The agreement also provided that partners, other than the appellant, would procure, if the need arose, further finance to the maximum limit of Rs. 25,000 but that if a sum in excess of this amount was required, that excess was to be brought in by all the partners including the appellant "individually pro rata in proportion to their shares of profits and losses in the firm". Clause 8 of this agreement permitted the appellant to withdraw on his own account a sum of Rs. 10,000 "no sooner he is able to realise any of the pending claims of bills of the firm or security deposits". We have dealt with this agreement at some length because it will be relevant to consider these matters in the context of the argument of Mr. Rana to the effect that the appellant as working partner was entitled to utilise the realizations made by him for carrying on the work of the firm.

3. According to the complainant the appellant committed misappropriation to the tune of Rs. 8,905 consisting of the following six item:

Rs.

2,871

3,000

1,100

1,100

750

84

8,905

The trial Court acquitted the appellant with respect to the last two items but convicted him in respect of the first four items.

4. The appellant admits that he realised these four items but he says that he did so in his capacity as partner and he utilised them for the business of the partnership. Therefore, according to him, he is only liable to render accounts to his partners and cannot in any circumstances be said to be guilty of an offence under section 409, Indian Penal Code. He also points out that the complainant has instituted a suit for the dissolution of the partnership and for rendition of accounts and that he instituted the present complaint solely with the idea of making it difficult, if not impossible, for the appellant to defend the civil suit properly.

5. On behalf of the appellant it is contended that even if the prosecution had succeeded in showing that the four items referred to above were realised by the appellant and that he has not accounted for them properly he will not be liable for criminal breach of trust under section 409, Indian Penal Code but that his liability would be only of a civil nature. In support of this contention reliance is placed upon Buban Mohan Rana V. Surendra Mohan Das (1). There the following question was referred for decision by the Full Bench:

"Can a charge under section 406 of the Indian