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Anil Saran Versus State of Bihar and another

1995 (8) TMI 325 - SUPREME COURT OF INDIA

Appeal (Crl.) 1026 of 1995 - Dated:- 24-8-1995 - K. Ramaswamy And B. L. Hansaria, JJ. ORDER Leave granted. The appellant was a partner in M/s. Agjevinath Films along with the second respondent, Shiv Prakash, and another person, Ajit Jai Tilak. The firm was constituted to distribute, exhibit and exploit the cinematograph films. The firm had entered into an agreement with producer, Bhojpuri film for distribution of Hamari Dulhaniya and had two prints of the films obtained from the laboratory at Bo .....

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not returned the print to the complainant-second respondent with ulterior and dishonest intention to make wrongful gain and to cause wrongful loss to the second respondent. Subsequently, it came to the knowledge of Shiv Prakash that the first accused colluded and conspired with the appellant and Ajit with an intention to defraud the second respondent; and the firm exploited the second copy of the film in the said cinema and "they stealthily and illegally misappropriated collections and dis .....

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e Chief Judicial Magistrate, Patna who, after examining the complainant, transferred the case to Judicial Magistrate-II, Patna whose Presiding Officer then was Mr. A.K. Srivastava. The learned Magistrate examined three witnesses and thereafter issued process to the appellant and third respondent under ss.405 and 420 IPC. The appellant thereafter filed an application under s.482 of the Code of Criminal Procedure, 1973 [for short, the Court ] before the High Court, Patna to quash the complaint. Th .....

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he complaint, was required to examine other witnesses, take cognizance and then could have transferred the case, if he so desired, to a competent Magistrate subordinate to him as envisaged by s/92(1) of the Code. But, in this case without taking cognizance, the Chief Judicial Magistrate committed manifest jurisdictional error in transferring the complaint to the Magistrate who took further action therein. We find no force in the contention. Though the Code defines "cognizable offence" .....

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plaint or on a police report or upon information of a person other than the police officer, depends upon further taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under sub-section (1) of section 190 of the code, any Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report o .....

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o to perform. A Magistrate who receives the case on transfer and takes cognizance would not become incompetent to do so merely because the sanction of transfer of the case to his file is not in accordance with law. The power to take cognizance has been conferred on a Magistrate by s.190(1) of the Code, and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former would be excercising his power of taking .....

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mmitted criminal breach of trust of his own funds and that, therefore, it is a case of civil liability only. The contention that one partner cannot commit criminal breach of trust against other partners, though prima facie alluring, on facts of this case, it does not appear to be tenable. Partnership firm is not a legal entity but a legal mode of doing business by all the partners. Until the firm is dissolved as per law and the accounts settled, all the partners have dominion in common over the .....

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