The main legal point established in the judgment is the requirement for establishing entrustment of dominion over partnership property through a special agreement to prove criminal breach of trust.

P.S. Teji, J.

1. The present revision petition has been filed feeling aggrieved of the order dated 26.03.2007 passed by the learned Metropolitan Magistrate, whereby the criminal complaint bearing No.1270/2001 filed by the petitioner/complainant for offence under Section 405, 406, 415, 417, 418, 420, 421, 424 and 506 of IPC was dismissed.

2. Factual matrix, as emerges from the record, is that the petitioner had filed a criminal complaint against the respondent alleging therein that the petitioner was a partner of registered firm Arenja & Company. The said partnership firm was formed vide Deed of Partnership dated 13.04.1981. Apart from the complainant, his mother Smt. Promila Devi Arenja, respondent and his father Sh. Jodharam Bhatia were other partners of the said firm. The firm dealt with in Kiriana, chemicals, dry fruits, fresh fruits and other miscellaneous business. From the inception of the firm, it was decided that Sh. Jodharam Bhatia and the respondent shall be active partners of the firm and they conducted day to day business of the firm. Entire capital and other assets were contributed by the complainant and his mother, whereas the respondent and his father never made any investment. The complainant and his mother were partners to the extent of 70%, whereas the respondent and his father were partners to the extent of 30%. The complainant and his mother never actively participated or interfered in the business of the firm. Bank operations of the firm were carried on by the respondent and his father only. The firm operated form the premises of Khari Bhowli which was owned by the father of the complainant who leased the same to the said firm. The firm had dealt with in export and import of various articles. Sh. Jodharam Bhatia, father of the respondent died in 1987. Accordingly, the firm was reconstituted on 07.01.1987 whereby the respondent became partner of the firm to the extent of 30%. It was further alleged that the respondent got addressed a letter dated 21.04.2000 wherein he made certain allegations of breach of trust. The record of the firm revealed that the respondent had embezzled and misappropriated huge funds and huge quantity of stocks. The petitioner sent legal notice on 29.05.2000 and 30.07.2000, but no reply to the same was received.

3. Pre-summoning evidence was adduced by the petitioner in the form of his own testimony and he also proved certain documents in support of his statement. The learned Metropolitan Magistrate vide order dated 26.03.2007 dismissed the criminal complaint while observing that no ground is made out to proceed further. Therefore, the present revision petition.

4. Arguments advanced by the learned counsel for the petitioner are that as a partner of the firm, the respondent was bound to act honestly; respondent illegally borrowed huge funds from other parties and did not account for the same in the books of account; respondent has embezzled huge stocks of the firm; respondent is guilty of acts of omission and commission. Further argument advanced is that at the time of issuing process, the Magistrate is only to look into the allegations. He is to satisfy himself as to whether prima facie case is made out for proceeding against the accused is made out or not and not to go into the defence or merits or demerits of the case, at the time of issuing the process.

5. In support of the contentions, learned counsel for the petitioner has relied upon judgment in case of J.R.D. Tata vs. Payal Kumar and Anr. in which it was observed as under :

“The law is well settled that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. The Magistrate is not required to go into the detailed discussion of the merits or demerits of the case (see Smt. Nagawwa v. Veeranna Shivalingappa Konjalqi and o