( 1 ) THIS is a Reference to a F. B. made by a Bench of this Court in a criminal matter.

( 2 ) A petn. in revn. was heard by the Bench which has referred this case in which the petnr. prayed that certain proceedings instituted against him under Section 406, Penal Code, and which were then pending in the Court of a Magistrate at Howrah should be quashed.

( 3 ) THE petnr. and the opposite party who preferred the complaint were partners and it is said that they carried on business at a shop situate at No. 34 Bellillios Road, Howrah. The business was a business of selling ghee, butter and stationery articles. On 12-2-1950 communal disturbances took place in Howrah and according to the complainant the petnr. proposed to him that all the articles in the shop should be removed to the petnr. 's house at 29/2 Beniatolla Lane, Calcutta which was outside the danger zone. The complainant stated that he agreed whereupon the petnr. procured a taxi cab and loaded it with articles which were in the shop. The communal disturbances passed off and according to the complainant he went to the petnr. 's house on 1-3-1950 to collect the articles and bring them back to the shop. The petnr. , it is said, told the complainant that he would return the articles in two or three days' time, but this he did not do. On 15-3-1950 the complainant stated that he again went to the petnr. 's house to obtain the articles and he was then told by the petnr. that he had no knowledge of the articles at all.

( 4 ) ON behalf of the petnr. it was contended before the Bench that no proceedings under Section 406, Penal Code could lie in this case as the parties were partners. The point appears to have been taken before the learned Magistrate, but he had overruled the objection and framed a charge.

( 5 ) THE Bench found that the authorities of this Court on this matter were in conflict and being unable to resolve the conflict the case was referred to a F. B. The points formulated for decision by the F. B. were as follows : (1) Can a charge under Section 406, Penal Code be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to both of them as partners ? (2) Are Queen v. Okhoy Coomar, 13 Beng. L. R. 307 : (21 W. B. Cr. 59 F. B.) and Alia Rakha v. Liakat Hossein, 44 C. W. N. 650 : (A. I. R. (27) 1940 Cal 371 : 41 Cr. L. J. 796), correctly decided ?

( 6 ) THE reference first came before a F. B. of three Judges. But as the correctness of the earlier F. B. case of Queen v. Okhoy Coomar, 13 Beng. L. B. 307 : (21 W. B. Cr. 59 F. B.) had to be considered the matter was adjourned and has now come before this F. B. of five Judges.

( 7 ) SECTION 406, Penal Code, provides : "whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to 3 years, or with fine or with both. "

( 8 ) THE phrase "criminal breach of trust" is defined in Section 405, Penal Code, in these terms :"whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own USB that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffers any other person so to do commits 'criminal breach of trust'. "

( 9 ) IT seems clear that before criminal breach of trust is established it must be shown that the person charged has been entrusted with property or with dominion over property and that he has been guilty of 'breach of trust' using that latter phrase loosely. There must be entrustment and therefore the person accused must be shown to have held the property in a fiduciary capacity.

( 10 ) ON behalf of the petnr. it has been argued that a patnr. does not in th