A partner cannot be prosecuted for converting to his own use the share of another partner in a partnership business until and unless there has been a proper account of the partnership business on the dissolution of the such business.

( 1 ) THIS is an application under S. 401 read with S. 482 of the Code of Criminal Procedure for quashing the proceeding of Case No. C/66/86 under S. 403 of the Penal Code pending before the Metropolitan Magistrate, 11th Court, Calcutta. The facts are briefly as follows : -

( 2 ) THE opposite party No. 2 as complainant filed a petition of complaint before the learned Addl. Chief Metropolitan Magistrate, Calcutta on Feb. 22, 1986 against the present petitioner along with two others, inter alia, on the ground that the complainant and the accused petitioner along with other brothers started a partnership business in the year 1966 and the complainant opposite party regularly participated in the business up to 1978, but thereafter the complainant opposite party became sick and went to his native place, but when he came back in the month of Sep. , 1985, he found that name of the partnership business has been changed and the petitioner has been running the said business by converting the said partnership into a ownership one without giving any share of the partnership business to the present opposite party. It was also alleged that though the accused petitioner and the other partners, being brothers, paid the present opposite party some token money as allowance, but that was much less than the actual share in the partnership business. The learned Additional Metropolitan Magistrate transferred the case to the Court of the Metropolitan Magistrate, 11th Court, Calcutta, and who on examining the evidence of the complainant and his two witnesses issued process under S. 403 of the Penal Code against the present petitioner and others.

( 3 ) BEING aggrieved by such issuing of process, the present application has been filed for quashing, the proceedings, contending, inter alia, that the learned Magistrate should not have issued process and should have considered the case to be of a civil nature for which no cognizance could be taken, that the learned Magistrate failed to consider that the alleged non-payment of share of the partnership business did not amount to any criminal act and such disputes can only be settled through a competent civil Court, that the complainant opposite party suppressed all the material facts, namely, that the partnership business was duly dissolved with the signature of the complainant and the complainant opposite party duly received his share of profit and that the petition of complaint not having disclosed any ingredient of the offence under S. 403 of the Penal Code further continuance of the proceeding is nothing but an abuse of the process of law and is liable to be quashed.

( 4 ) THE revision has been contested by the opposite party complainant. Mr. Chatterjee, learned Advocate for the State has supported the case of the present applicant.

( 5 ) ON behalf of the petitioner, a Division Bench judgment of this Court has been cited, being the case of Man Mohan Das v. Mahendra Bhewal, AIR 1948 Cal 292. Their Lordships of the Division Bench have held that a partner cannot be prosecuted under S. 406 for withholding the share of the profits to which the other partner is alleged to be entitled, if it is not shown that he did not hold the property or receive the money in a fiduciary capacity. Learned Advocate for the petitioner has also referred to another Division Bench decision of the Allahabad High Court, namely, Sri Ram v. Parshadi Lal, AIR 1982 All 60. In the said decision, the Division Bench of the Allahabad High Court has also held that even where the partner is found to utilise the firm's money for his own purpose, there can be no charge of criminal breach of trust to be levelled against such a partner.

( 6 ) ON behalf of the opposite party, it is submitted that the petition of complaint has not only disclosed that the opposite party has been denied the share of the profit, but it has also been specifically alleged that the present applicant has converted the profits of the partnership b