LexDEBABRATA GUPTA versus S. K. GHOSH
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A B c D E F G H DEBABRATA GUPTA v. S. K. GHOSH February 23, 1970 [A. N. RAY AND I. D. DUA, JJ.] 765 Indian Penal Code Section 406--Criminal breach of trus--Jngrt'di- ents necessary-Proof of entrustment. Certain disputes arose between the appellant and the respondent '"ho were partners in a firm. After the respondent had sent to the appellant a notice for dissolution of the partnership, the appellant withdrew cenain funds from the firm account. The respondent thereafter lodged a com- plaint against the appellant alleging criminal breach of trust \vithin the meaning of Section 406 I.P.C. He also instituted a suit for the dissclu- tion of the partnership and for accounts. The Additional Chief Presi- dency Magistrate issued summons to the appellant under Section .!06. 'fhe appellant instituted proceedings in the High Court for quashing the criminal proceedings but the High Court rejected his prayer. On appeal to this Court, HELD : Dismissing the appeal : The offence of criminal breach of trust under section 406 of the Indian Penal Code is not in respect of property belonging to the p;?rtner- ship but is an offence committed by the person in respect of prOJ'.'erty which has heen specially entrusted to such a person and which he P.olds in a fiduciary capacity. [768 Fl Jn the present case_. the appellant denied that there \Vas any special entrustrnent of any property or that he, wa5 holding any property in 'a fiduciary capacity. It was neither possible nor desirable to express any opinion on the merits of such a plea. It \Vas not possible to do so be- cause the facts were not in possession of the court and furthermore the facts could not h.z before the court \vithout proper investigation and en- quiry. It was not desirable to do so because if :iny such opinion be expressed it might prejudice or embarrass either party, [768 G] R. P. Kapur v. State of Pnnjab, [1960] 3 S.C.R. 388; Ve/ji Rarhavji Patel v. State of Maharashtra, [1965] 2 S.C.R. 429, lli1t1ban Mohan R,mc. v. Surendra Mohan Das, I.LR. [1952] 2 Cal. 23, referred to. CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 134 of 1967. Appeal by special leave from the judgment and order dated June 7, 1967 of the Calcutta High Court in Criminal Revision No. 1100 of 1965. Debabrata Mukherjee and Sukumar Ghose, for the appel- lant. Sadhu Singh, for the re1pondent. 766 SUPREME COURT REPORTS [1970] 3 S.C.R. The Judgment oi the Court was delivered by Ray, J. This is an appeal by special leave against the judg- ment of the Calcutta High Court dated 7 June, 1967 refusing to quash the process issued and the proceedings pending before the Additional Chief Presidency Magistrate, Calcutta under section 406 of the Indian Penal Code. The appellant and the respondent entered into a registered deed of partnership on 27 March, 1963. The name of the part- nership business was "Allied Engineers". The nature of the business was that if the tender submitted by the respondent to the Eastern Railways for extension of bridge No. 2 at the west and of Howrah yard, West Bengal was accepted by the Eastern Railways the said work would be deemed to be included within the partnership. Under the terms of partnership agreement the capital was Rs. 20,000 to be contributed equally by the partners within six months from the date of the agreement. The main office of the partnership was at 12/1/5 Manohar Pukur Road, Kalighat, Calcutta. Another term of the partnership was that if the tender was accepted the appellant would advance or lend from time to time a total sum of Rs. 20,000 towards the work represented by the tender as and when necessary. The amount so advanced would be repayable to the appellant with interest at six per cent per annum and 503 of the profit to be earned. The respondent was, under the terms of partnership agreement, to execute an irrevocable power of attorney in the manner and with powers as provided in the draft approved by the partners. The bankers of the firm would be United Bank of India Limited and all cheques on the said bank would be signed by both the part- ners. The agreement further provided that all cheques in res- pect of the work in the name of the respondent, S. K. Ghosh, in Eastern Railways would be drawn on the banking account operated by the partner Debabrata Gupta, namely, the appel- lant for which the respondent would execute an irrevocable power of attorney. Th
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