1. The proceedings from which this rule arises have gone on since 10th February 1947 but it is not necessary to go into the long history of applications for adjournments and changes of Court. Suffice it to say that the complainant filed a petition before the Chief Presidency Magistrate to the effect that he replied to an advertisement for a financier for a timber business and that he joined the petitioner in such business. An agreement was arrived at of which the following terms are material: In para, 1 of the agreement the parties described themselves as partners. In para, 3 the complainant undertook to invest money to the extent of Rs. 50,000 and the petitioner was described as the working partner, the business to be managed by the parties to the agreement jointly. Paragraphs 8 and 9 of the petition recite that the stock-in-trade was to remain the property of the complainant and that the petitioner was to have no property interest in the funds of the partnership 'except the amount that may on adjustment of partnership account be found to be due to him for the share of the profits.' The gist of the petition of complaint is that the complainant has provided funds, that timber has been bought and sold and that the complainant 'demanded the money from the accused who put (the complainant) off on some pretext and then made himself scarce.'
2. Before us it is contended that the continuance of the criminal case is an abuse of the process of the Court and that the criminal proceedings should, therefore, be quashed.
3. We have heard the learned advocates on both sides. For the petitioner Mr. Satindra Nath Mukherjee contends that there is nothing between the parties but the question of accounts. For the complainant Mr. Ajoy Kumar Basu contends that it is not a question of accounts but that the action of the petitioner indicates that he had dishonest intention. There is this much to be said for the opposite party that the paras. 8 and 9 adverted to above, are evidently intended to support criminal liability into the contract. But this Bench cannot undertake to construe a partnership agreement in the circumstances of the present case.
4. In our view, the point at which the parties have now arrived is that the complainant claims money from the petitioner and the petitioner has not paid him. Prima facie the question between them is one of accounting. Until the accounting takes place it cannot be said how much money the petitioner owes the complainant or indeed whether the petitioner owes the complainant any money. It may even turn out that the liability is as against the complainant. Be that as it may, it is impossible to find on the present state of the facts that there is prima facie case of criminal misappropriation of such an unequivocal nature that it could have taken place as between persons describing themselves in their agreement as partners.
5. On this view the criminal proceedings cannot be allowed to proceed. We, therefore, quash them. The rule is made absolute.
6. I agree.