TMI Blog1964 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... lp Pramandal, which was formed for carrying on the business of building construction, originally conisted of eight partners and the appellant was its working partner. This firm was constituted in the year 1954. But on February 6, 1957 three of the partners retired and the business was continued by the remaining five partners. Disputes arose amongst them, which were referred to arbitration of Mr. J. T. Desai, a Solicitor. Apparently, in pursuance of his award a fresh agreement (Ex. N) was entered into by the partners on June 4, 1958. By virtue of this agreement the appellant s share in the firm s business was to be of 50 nP. in a rupee while the other partners had different shares in the remaining 50 nP. Nagindas Jivraj Mehta, who is the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL 8,905/- The trial court acquitted the appellant with respect to the last two items but convicted him in respect of the first four items. The appellant admits that he realised these four items but he says that he did so in his capacity as partner and he utilised them for the business of the partnership. Therefore, according to him, he is only liable to render accounts to his partners and cannot in any circumstances be said to be guilty of an offence under S. 409, I.P.C. He also points out that the complainant has instituted a suit for the dissolution of the partnership and for rendition of accounts and that he instituted the present complaint solely with the idea of making it difficult, if not impossible, for the appellant to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n asset is entitled to the whole of the asset and may be, much more. He referred to the English view that a partner does not hold money belonging to the partnership in a fiduciary capacity and said that this view appeared to him to be correct. Referring to the decision in The Queen v. Okhoy Coomar Shaw(1) in which a Full Bench had held that a partner who dishonestly misappropriates or converts to his own use any of the partnership property with which he is entrusted or over which he has dominion, is guilty of an offence under s. 405, I.P.C., Harris C.J. observed : The Full Bench never seems to have Considered that there is really no partner s share in the property until an account (sic) and it may well be that a partner, who retains an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arguments before us, apart from these three decisions, our attention was called to a few more decisions of the High Courts in India. But whether they take one view or the other they do not seem to add to what has been said in these three decisions. We, therefore, do not feel called upon to make any reference to these decisions. It seems to us that the view taken in Bhuban Mohan Rana s case(I.L.R. 1962 11 Cal. 23.) by the later Full Bench of the Calcutta High Court is the right one. Upon the plain reading of s. 405, I.P.C. it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over propery which he is said to have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that meeting which runs thus : Shri Veljibhai agrees to recover the monies due by Shri Kablasingh immediately and shall deposit the same with the Bankers of the firm. He has however, not been able to explain the next item in the minutes, the relevant portion of which runs thus : (16) If in future any further moneys are required to be spent the same shall be spent out of the coveries of the firm and no partner shall be bound or responsible to bring in any further moneys......... Reading the two together the meaning seems to be only this that as working partner the appellant should carry on the work of recovery of the dues of the partnership and that in respect of the dues from one Kablasingh it was decided that they should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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