Birendra Kumar, J. – Heard learned counsels for the parties.

2. The petitioners are accused in connection with Hasanpur Police Station Case No.43 of 2015 registered on the direction of learned Judicial Magistrate, under Section 156 (3) of the Code of Criminal Procedure, on the basis of initial complaint filed vide Complaint Case No.1110 of 2014 by opposite party No.2.

3. The petitioners have challenged the order of cognizance dated 02.09.2015 passed by the learned Judicial Magistrate-1st Class, Rosera, whereby cognizance has been taken for the offences under Sections 406 and 120B of the Indian Penal Code.

4. The challenge is on the ground that on bare perusal of the complaint petition, no offence is made out as well as on the ground that the learned Magistrate has passed the order under Section 156 (3) of the Code of Criminal Procedure in a mechanical manner, only mentioning on the top of the complaint petition as follows: –

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5. Contention is that if the Magistrate would have applied its mind on the complaint petition, he must not have proceeded with the case and sent the matter for registration of a Police case, as the complaint petition does not disclose any offence said to be committed by any of the petitioners.

6. Learned counsel for the opposite party No.2 submits that after Police investigation, charge sheet was submitted and sufficient material was there against the petitioners for proceeding against them. Hence, cognizance was taken. Therefore, this Court in exercise of extra ordinary power under Section 482 of the Code of Criminal Procedure should not interfere to throttle the trial at the inception.

7. According to complaint petition, the accused persons inducted to the complainant, as working partner, in their business. It was decided that the complainant would get Rs.06 (Rupees Six) per quintal as profit in the business of maize and wheat. The partnership was engaged in the business of supply of grains to other parts of the country. It is further stated that grains were supplied to different businessmen in between 05th May, 2013 to 29th September, 2013 and total 32 racks were supplied. The entire account was with the accused No.1. Total maze of eight lacs qunitals were supplied and cost of Rs.48,00,000/- (Rupees Forty Eight Lacs) was assessed for labour charges. On demand by the complainant rather on putting pressure the accused persons paid Rs.6,00,000/- (Rupees Six Lacs) in May, 2014 to the complainant and issued a cheque of Rs.2,00,000/- (Rupees Two Lacs) on 02.06.2014. However, Rs.40,00,000/- (Rupees Forty Lacs) was still due with the accused persons which they were not paying. It is further alleged that just to put pressure, accused persons have lodged a false case of demand of ransom, vide Hasanpur Police Station Case No.131 of 2014. On that basis, assertion is that accused had dishonest and fraudulent intention in conspiracy with each other from the very beginning and they criminally misappropriated the money of the complainant.

8. Learned counsel for the petitioners submits that in a partnership business each and every partner has joint ownership on the property of the firm and under the law they are only entitled for dissolution of the partnership and for rendition of accounts and in absence of dissolution of partnership and accounting, it cannot be alleged that what amount was due in favour of any partner against the firm. Moreover, unless there is specific agreement between the parties that property of the firm was entrusted to any individual partner, it cannot be alleged that there was entrustment of property and as such there is no question of misappropriation of property under Section 406 of the Indian Penal Code. Reliance has been placed on the full Bench judgment of the Hon’ble Calcutta High Court in Bhuban Mohan Das vs. Surendra Mohan Das, reported in A.I.R. (38) 1951 Calcutta 69.

9. Para 34, 35 and 43 of the judgment which