1. This rule was issued upon the District Magistrate of Howrah and upon the opposite party to show cause why an order of discharge under Section 253, Criminal P.C., made by the Bench of Honorary Magistrate should not be set aside. The only facts stated in the judgment of the Bench are that the accused Liakat Hossain was a partner in a fish business and that as It has been held in clear terms in a certain judgment of this Court that Sections 403 to 409, Penal Code, which deal with criminal misappropriation and criminal breach of trust are not intended to apply to partners no charge could be framed against the accused in the case. It may be added in explanation of the above judgment that the original complaint by the petitioner alleged that the accused was his partner in business and had misappropriated Rs. 450 of partnership money. It is perfectly clear that the Bench has entirely misconstrued the scope of the decision to which they referred as an authority for refusing to frame any charge whatever without even an attempt to discuss the evidence produced in support of the prosecution case. The ruling referred to, which is the case in Bhupendra Nath v. Giridhari Lal : AIR1933Cal582 is no authority for the proposition that in no circumstances can there be a criminal liability under Sections 403 to 409, Penal Code, in partnership cases. On the contrary, it was held by the learned Judges that the words of Section 405 are large enough to include the case of a partner, if it be proved that he was in fact entrusted with the partnership property or with dominion over it and has dishonestly misappropriated it, or converted it to his own use. This was the view of law adopted in a previous Bull Bench case, Queen v. Okhoy Coomar Shaw (1874) 13 Beng L.R. 307 and the learned Judges in the case referred to by the Bench remarked that they had doubt that this decision is Correct so far as it goes. The judgment then goes on to point out that in the present case there was no entrustment or dominion, and, of course, in such a case there could certainly be no complaint of criminal breach of trust.
2. The learned Honorary Magistrates have erroneously interpreted this decision as an authority for the broad proposition that Sections 403 to 409, Penal Code, are not intended to apply to partners, a construction which certainly cannot be placed upon the judgment. In the result this rule must be made absolute. The order of the learned Magistrate discharging the accused must be set aside and the case remanded to be dealt with in accordance with law. It is desirable that the case should be heard by some other Magistrate or Bench.
3. I agree.