M. C. TRIVEDI, S. H. SHETH, J.

( 1 ) JAMNADAS Ramchand Soni the complainant filed against the accused Criminal Case No. 291 of 1972 in the Court of the learned Judicial Magistrate First Class at Harij. He alleged that he and accused Nos. 1 3 4 and 5 were partners of a firm which carried on business in crude oil petrol diesel oil and such other things. Accused No. 2 who is the son of accused No. 1 was an employee of that firm. This business was closed on or about 24th September 1971. Therefore accused Nos. 1 3 4 5 and the complainant ceased to be the partners in that business. Books of accounts bills vouchers and other papers of the partnership firm were handed over to the complainant. On inspection the complainant found that the accused had misappropriated partnership funds to the extent of Rs. 21 902. 1 p. Some of the misappropriations which he stated in the complaint were as follows : on 6th November 1970 Rs. 4850. 00 were debited to the account of the State Bank of India showing that that amount was deposited in the State Bank. However it was found that actually what was deposited in the State Bank was a sum of Rs. 3850. 00 and that therefore the accused had misappropriated a sum of Rs. 1000. 00. Next the counter-foil of the paying-in-slip showed that Rs. 7600. 00 were deposited on 24th May 1971 with Bank of Baroda but the corresponding entry in the books of account showed a sum of Rs 9000/- debited to Bank of Baroda. Therefore according to the complainant a sum of Rs. 1400. 00 was misappropriated. Similarly it was found that on 15th June 1971 a sum of Rs. 2000. 00 was withdrawn from Bank of Baroda and that it was not credited in the accountbooks of the partnership firm. Therefore according to the complainant that amount was misappropriated. He therefore charged the accused with misappropriations and falsification of accounts. The complainant further alleged that a sum of Rs. 2000. 00 was paid to accused No. 2 for the purpose of falsifying the books of accounts and that it was not debited in the account-books of the firm.

( 2 ) THE learned Magistrate upon receipt of the complaint directed the police to investigate into it. The police accordingly investigated into the offences and charge-sheeted the accused. Before the learned Magistrate recorded evidence it was argued before him that a partner in law cannot be held liable for misappropriation of partnership funds nor can he be held liable for a criminal breach of trust in respect of partnership funds. By his order dated 25th October 1972 the learned Magistrate upheld that contention and discharged all the accused.

( 3 ) THIS order was challenged by the complainant in Criminal Revision Application No. 49 of 1972. It was also challenged by the State of Gujarat in Criminal Revision Application No. 50 of 1972. Both these revision applications were filed in the Court of Sessions at Mehsana. By his common order dated 23rd February 1973 the learned Additional Sessions Judge who heard both these revision applications dismissed them.

( 4 ) IT is that order which is challenged by the State of Gujarat in this Criminal Revision Application.

( 5 ) THIS revision application came up for hearing before Mr. Justice Surti. He found that there was a conflict between the two decisions of the Supreme Court-one in R. K. Dalmia v. Delhi Administration A. I. R. 1962 Supreme Court 1821 and another in Velji Raghavji Patel v. The State of Maharashtra A. I. R. 1965 Supreme Court 1433. It appeared to him that in Veljis case (supra) Dalmias case (supra) was not cited before the Supreme Court. He also found that while deciding the case of Jashbhai v. Hasmukhlal 13 G. L. R. 617 this Court had not considered the decision of the Supreme Court in Dalmias case (supra ). He therefore referred this Revision Application to a larger Bench and that is how we are called upon to decide in this Revision Application the following question:can a partner be held liable for offences punishable under secs. 408 409 467 468

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