1. The learned Crown Prosecutor has placed the case for the prosecution with great frankness and clearness before us. As he said, if a prosecution in a matter which is ex facie a civil dispute is unable to prove clearly and beyond doubt that the accused has acted dishonestly and with a view to enrich himself clandestinely at the expense of those with whom he was working and with whom he was bound by a fiduciary relationship, the case should not be entertained by a Criminal Court. This case is an illustration in point.
2. There were two partners, the complainant and the 1st accused. They both advanced each a capital of Rs. 2,500. Beyond the usual arrangement to share the profits and bonus half and half no definite terms were settled. This is admitted by the complainant. The charge against the accused is that he drew two sums of money, Rs. 2,000 and Rs. 1,000 respectively, on two different occasions without the consent of the complainant and against the understanding between the parties. That moneys can only be drawn by consent is not proved. On the other hand the complainant, who admits to having occasionally examined the accounts, has deposed that he was aware of other drawings without consent, The limitation regarding the amount of drawing is also not proved. We find that the complainant himself received Rs. 200 on one occasion, which was wrong, if no more than Rs. 50 can be drawn in a month. Now as regards the use to which the two amounts have been put, there can, be no doubt that the 1st item was applied towards discharging a debt binding on both the partners.
3. The Magistrate seems inclined to hold that this was wrong, because there was a more pressing debt which had fructified into a decree of Court. The learned Crown Prosecutor conceded that taking the most unfavourable view of the conduct of the accused this was an appropriation towards a binding debt in which the accused was interested at a time when he must have known or had reason to believe that the business was tottering. This kind of preference is not an indication of intention to cheat.
4. As regards the other item the accused had advanced Rs. 2,500 and a drawing of Rs. 1,000, when the accounts were not settled and when the complainant himself had been paid Rs. 200, is not evidence of guilty intention.
5. We think that the conviction is wrong. We set it aside and direct that the accused be set at liberty. The fine, if paid, should be refunded. The bail bound should be delivered up and cancelled.