Employee cannot be charged for offence u/s 408 of the firm.

These two criminal petitions are filed underS.482, Crl.P.C, to quash the proceedings in C.C.No.3664 of 1985, on the file of the II Metropolitan Magistrate, Madras. The first accused is the petitioner in Crl.M.P.No.5389 of 1985 while the second accused is the petitioner in Crl.M.P. No.5387 of 1985.

2. The brief facts of the case are these: The second accused, M.V. Baby (petitioner in CrLM.P.No.5387 of 1985), M.C. Kuriakose and Lalu Alex joined together and constituted a firm by and under the name of Kopanhagan Pharmaceuticals with its registered office at Pushpa Nagar, Madras 34. On a Complaint given by M.C. Kuriakose, one of the partners, the respondent-Sub- Inspector, Central Crime Branch, has filed a charge-sheet against these two petitioners for offences under Ss.408 and 408 read withS.34, I.P.C. The allegation is that these two accused in furtherance of their common intention the first accused (petitioner in Crl.M.P. No.5389 of 1985) being a clerk employed in the partnership firm, and the second accused (petitioner in Crl. M.P. No.5387 of 1985) being the managing partner of the said firm, dishonestly converted the properties entrusted with them for their personal gain by lifting the goods without the knowledge of the other partners to the shop of the second accused at Piravam, Ernakulam District, Kerala by booking the consignments in their names and made themselves liable for offences punishable underS.408 , I.P.C, by the first accused andS.408 , by the first accused andS.408 read withS.34, I.P.C, by the second accused. The charge sheet has been taken on file by the II Metropolitan Magistrate, Madras and numbered as C.C.No. 3664 of 1985. It is to quash these proceedings the two accused have filed these petitions.

3. The second accused (petitioner in Crl. M.P. No. 5387 of 1985) is admittedly the managing partner of the firm Kopanhagan Pharmaceuticals. It is his case that the other two partners, viz., M.C. Kuriakose and Lalu Alex did not bring in sufficient funds for the running of the business and it was the second, accused who invested large funds from his own resources and that the two other partners did not take any interest in the aforesaid partnership firm and virtually abandoned the business. The second accused, therefore, decided to close down the business. At his request the first accused, who was an employee of the firm, disposed of some of the stock and the unsold stock was invoiced to the second accused's pharmacy at Priavam. In or about April, 1983, all the three partners met and looked into the accounts and it was found that the other two partners, M.C. Kuriakose and Lalu Alex were liable to pay to the second accused Rs.16,000 each. Instead of paying the amount Mr. M.C. Kuriakose has given the criminal Complaint. It is also averred by the second accused that the two other partners have also filed suits on the file of the Sub-Court, Ernakulam in O.S, Nos.614 and 615 of 1983 for rendition of accounts against the second accused. The car of the second accused has also been attached before judgement and on furnishing back guarantee the second accused has taken delivery of the vehicle. It is therefore contended by both the accused that there is no case for criminal breach of trust.

4. In order to bring home the guilt of criminal breach of trust to the accused it must first be established that the accused was entrusted with property or with any dominion over the property and that the accused dishonestly misappropriated or converted to his own use that property in violation of any direction of law or any legal contract. The question, which arises for consideration, is, whether the second accused who was the managing partner of the partnership firm Kopanhagan Pharmaceuticals was entrusted with the assets of the partnership firm.

5. It is well settled that a partner, who receives partnership property has dominion over that property as a partner quite apart from any arrangement with his other partners. The fact that