1. This revision petition arises in the following circumstances.

A complaint under sections 406 and 408 R P. C. was brought by the respondents against the petitioner alleging that the parties, alongwith some others, had entered into a partnership for running a cinema known as Indira Theatre. The share of the respondents in the partnership business was 25% i.e. 12 1\2% each and each of them had to contribute a sum of Rs, 1.75.000/-towards the initial investment which was to be spent exclusively on the construction of the cinema house. A deed of partnership was executed on 1-11 1976. Since the deed was compulsorily registerable, it was agreed that the respondents will contribute their share of investment and handover the money to the petitioner who will held it in trust for them till the partnership deed was registered. Pursuant to this agreement, the first respondent paid to the petitioner a sum of Rs.1,64,750\00 whereas the second respondent paid to him a sum of Rs1,75,000\00, which was deposited by him with United Commercial Bank, Ashoka Market Jammu. But, the petitioner, before the deed of partnership came to be registered on 3-4-1977, withdrew from the amounts paid to him by the respondents in violation of the express terms of the special agreement and dishonestly appropriated the same to his own use.

2. Sub - Registrar Judicial Magistrate, Jammu to whom this complaint was transferred, dismissed it by his order dated 3-6-1978, without even recording the statements the complainants on the ground that the partnership deed being present on its terms, the special agreement set up by the respondent could not be proved against the clear bar contained in Sections 91 and 92 of the Evidence Act, and in the absence of the special agreement, the petitioner, who was admittedly a partner in the firm, could not under law be said to hold the money paid to him by the respondents, which was partnership property, as a trustee thereof.

3. This order was challenged by the respondents in revision before Additional Sessions Judge, Jammu, who by his order dated 18-4-1978 reversed it on the authority of R, K Dalmia and others Vs The Delhi Administration, AIR 1962 S. C. 1821, holding that a partner in a firm holding dominion over partnership property was under law merely a trustee quait and transferred the case of City Magistrate Jammu, for further enquiry.

4. The City Magistrate recorded the statement of one of the complainants and issued process against the petitioner under section 406 R. P. C. by his order dated 1-5-l978

5. The petitioner has challenged the aforesaid two orders i. e. order dated 18-4-1978 passed by the Additional Sessions Judge and order dated 1-5-1978 passed by the City Magistrate. The challenge two fold. Its first limb is that a partner in the absence of a special agreement that he shall hold the partnership property in trust cannot be said to be a trustee qua it, and its second limb is that the terms of the special agreement set up by the respondents cannot be proved in face of the clear bar contained in Sections 91 and 92 of the Evidence Act, The argument in reply is also twofold In the first place it has been contended that a partner in a firm, even if the absence of a special agreement to that effect, holds the partnership property as a trustee, and secondly, that even if it were not so, the respondents had pleaded the special agreement which they are entitled to prove under law, even if it was not incorporated in the partership deed.

6. The point whether or not a partner holds partnership property as a trustee is no more res integra, Doubting the correct ness of the view taken in its two earlier decisions that a partner dishonestly misappropriating or converting to his own use any of the partnership property, with which be is entrusted, or over which he has dominion is guilty of an offence u/s 405 I. P. C, the following two questions were referred to a Full Bench of five judges of the Calcutta High Court in Bhaban Mohan

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