A partner cannot be charged with criminal breach of trust in respect of partnership property jointly belonging to him and the complainant partner, unless there is a special agreement imposing fiduciary obligations.

SUDHANSHU SEKHAR GANGULY, J.

( 1 ) THIS revisional application under Ss. 397/401/482, Cr. P. C. has been filed for the quashing of the proceeding in case No. C. 323 of 1983 pending before Shri H. P. Chatterjee, Judicial Magistrate, second Court, Sealdah.

( 2 ) ADMITTEDLY the accused petitioner and the complainant opposite party No. 1 were running a partnership business under the name and style of "m/s. Metal Cap Company" from November, 1979. In terms of the deed of partnership the State Bank of Bikaner and Jaypore at its branch at 227-A and 227-B of Acharya Prafullya Chandra Road, Police Station Ultadanga were the creditors and bankers of the partnership.

( 3 ) THE opposite party lodged the complaint in May, 1983 alleging that at different times beginning from March, 1981 to Dec. 1981, the petitioner accused received cheques payable to the said partnership but instead of depositing them with the Bank mentioned above got them encashed through an account with the United Bank of India Belgachia Branch opened by him in the name of M/s. Metal Cap Company but showing himself as the sole proprietor of the concern and misappropriated the money after encashment. The allegation was found to be true on police enquiry and the learned Magistrate issued process under Ss. 419/409 of the Penal Code. On transfer of the case, the learned trying Magistrate fixed a date for examination of witness. Hence, this revisional application for quashing of the said proceeding.

( 4 ) THE petitioner does not deny the above fact. He asserts first that since he was a partner he could not commit the offence of criminal breach of trust with regard to the money in question which belonged to the partnership. The Full Bench decision of this Court in Bhuban Mohan v. Surendra Mohan, 55 Cal WN 541 is cited in this connection. It has been laid down in this unanimous decision that excepting in the case where by special agreement fiduciary obligations have been cast, a partner cannot be charged with the offence of criminal breach of trust (S. 406, I. P. C.) in respect of partnership property jointly belonging to him and the complainant partner. The decision proceeds on the reasoning that (1) in the absence of an agreement between the partners that a particular property would be the separate property of a partner, each partner is interested in the whole of the partnership assets and consequently there cannot be any entrustment of any partnership property with any partner because there is no property which can be entrusted. This principle has also been reiterated by the Supreme Court in R. K. Dalmia v. Delhi Admn. AIR 1962 SC 1821 : 1962 (2) Cri LJ 805 wherein it has been held that if one partner is given authority by the other partners to collect moneys in respect of the firm, he is entrusted with dominion over the property and if he misappropriates he comes within S. 405 of the Penal Code. It is not the case of the opposite party No. 2 that under the terms of an agreement the petitioner was specifically authorised to collect the money in question or for that matter that it was agreed between him and the petitioner that the money collected by the latter would go to him i. e. the opposite party No. 2 as his separate property. In that view of the matter it shall have to be concluded that there was no entrustment in this case and that therefore there could not be any breach of trust in this case attracting application of S. 409 of the Penal Code.

( 5 ) FOR the same reasons Ss. 419 and 420 of the Penal Code also cannot have any application to the facts of this case. The money in question belonged as much to the petitioner as the opposite party No. 2 and neither could cheat the other with regard to the partnership property in which each had full interest as partner. Section 419 of the Penal Code (Cheating by Personation) hardly applies since by opening the new account in the aforementioned Bank showing himself as the sole owner of the concern, the petitioner has not cause

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