Avnash Chander vs State of Punjab

S.C. Mital, J.

Avnash Chander has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the first information report in question, registered at Police Station Kotwali Bhatinda under Section 406 and 468, Indian Penal Code. The salient allegations made by Sukhdev Singh informant are that he and Avnash Chander petitioner entered into partnership and a deed in that regard was executed by them. Avnash Chander used to deal with the accounts and maintain the account books. The cash was also kept by Avnash Chander. While acting as partner Avnash Chander made fictitious entries in the Rohar Bahi and thereby embezzled Rs. 3,44,004/.

Learned counsel for the petitioner has placed strong reliance on Velji Rachavji Patel v. The State of Maharashtra, A.I.R., 1965 SC 1433, laying down :

"In the case of a partnership, every partner has dominion over the partnership property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of Section 405. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted to the accused person. If in the absence of such a special agreement a partner received money belonging to the partnership be cannot be said to have received money belonging to the partnership be cannot be said to have received it in a fiduciary capacity or, in other words, cannot be held to have been entrusted'' with dominion over partnership property."

In all fairness, learned counsel for the State contends that this case appears to be covered by this authority.

As regards the averment of the investigating officer in his reply to this petition that an offence under Section 477A. Indian Penal Code, has been committed by the petitioner, his learned counsel sought support from C.V. Krishen v. Virji Kunverji and another, A.I.R., 1959 Cal., 498, expressing the view that having regard to the wordings of Section 477A, Indian Penal Code, a partner cannot be guilty of the offence under that Section. Here also learned counsel for the State had nothing to say to the contrary.

For the forgoing reasons the allegations made by the Complainant against the petitioner cannot be said to constitute commission of offences either under Sections 406 or 477A, Indian Penal Code. As regards the powers of the High Court to quash the first information report in such a situation, learned counsel for the petitioner cited Full Bench decision of this Court in Vinod Kumar Sethi and others v. State of Punjab and another, 1982 P.L.R. 337 (FB), which too has not been distinguished by the learned counsel for the State.

In the result, I allow this petition and quash the first information report in question.