Offence for breach of trust made out u/s 405 I.P.C.

Petitioners are accused 1 to 5 in C.C. No. 4450 of 1988 on the file of the VII Metropolitan Magistrate, Madras.

2. All accused are related to each other. Accused 1 is the paternal uncle of accused 2 to 4 who are all brothers. Accused 5 is the sister's son of accused 1's wife. A partnership firm under the name and style of Ananda Trading Co. was formed at Madras on 14-5-1982 and registered with the Registrar of firms, Madras on 24-7-1982. The respondent-complainant along with her mother in law Mrs. Rose Daniel became partners of the firm. Accused 1 to 3 also became the partners of the firm. The firm consisted of 19 partners.

3. On 17-5-1982 the firm acquired an old shop M. V. St. Demetrius in the name of D. Narasingamurthy, one of the partners of the firm for its metal scrap. For dismantling of the ship and selling the scraps accused 1 and D. Narasingamurthy were appointed by all the other partners as Managing Partners and given a Power of Attorney to act for the firm. A current account No. 577 was opened in the Bank of Rajasthan Ltd., Sunkurama Street, Madras. Both of them were authorised to operate the account jointly.

4. In the process of dismantling and selling of the scraps more than rupees two crores appeared to have been realised. The accounting year of the firm is Deepavali year. No statement of accounts appeared to have been furnished by accused 1 and the said D. Narasingamurthy, giving rise to exchange of notices.

5. The said Narasingamurthy was said to be suffering from cancer on and from February 1983, and not participating in the business of the firm. On 14-9-1983, it is alleged that with the consent of all the partners, he assigned his rights in favour of his son Gururaj Doraisingam, a partner who became the Managing Partner along with accused 1 with effect from that date. On 30-10-1983 Narasingamurthy died.

6. The illness and physical incapacity of Narasingamurthy from February 1983 is stated to have enabled accused 1 to secure his signatures in blank cheques and utilise the same for his gain. In such a process, he is stated to have drawn 13 cheques for a total sum of Rs. 11,85,000/-. Out of 13 cheques 11 cheques were drawn prior to 14-9-1983 totalling to Rs. 9,75,000/- and the other two cheques were drawn subsequent to that crucial date i.e. one on 21-9-1983 for a sum of Rs. 80,000/- and the other on 3-10-1983 for a sum of Rs. 1,30,000/- accused 2 to 5 were said to have assisted accused 1 in such a nefarious design of withdrawal of the funds of the firm. Thus all accused are stated to have committed criminal breach of trust of the funds of the firm and the commission of the offence of forgery. The respondent on these allegations is stated to have given a complaint to the police on which no action was taken as the dispute between them is purely of civil nature. Consequently a private complaint had been given by the respondent, which was taken on file in the aforesaid Calendar Case.

7. On receipt of process, the petitioners have come forward with the present action invoking the inherent jurisdiction of this Court to quash the Criminal proceedings initiated against them.

8. Learned Senior Counsel Mr. K. T. Pal Pandian appearing for the petitioners would submit that the allegations as made in the complaint, if scanned, would point out that the transaction between the parties is purely of civil nature, giving rise to a cause of action for institution of a civil proceeding before a competent Civil Court and by no stretch of imagination can it be stated to amount to any offence whatever, giving rise to the initiation of criminal prosecution and therefore it is the prosecution so launched is not sustainable in law and consequently liable to be quashed.

9. In amplifications of the argument, learned Senior Counsel for the petitioners would say that a partner does not in the ordinary course, hold a partnership property in fiduciary capacity because partnership property belongs to the partners and one partner ha