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Krishna Chandra Banik and ors. Vs. Har Kishore Madak - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal154
AppellantKrishna Chandra Banik and ors.
RespondentHar Kishore Madak
Excerpt:
- .....to ascertain from either of them how the acts done by the petitioners amounted to the offence of criminal misappropriation. shortly, what is found is that the first petitioner, who is a partner of two other persons, removed from the shop some of the properties belonging to the three partners. that clearly alone was not criminal misappropriation.2. it is suggested on behalf of the opposite party that the principal accused was a sleeping partner. but we can find no facts in either judgment which support this view. on the contrary we find that it was the first petitioner who joined with the others in appointing the principal gomashta mathur chandra das which is not consistent with the contention that he was a sleeping partner only. it is not criminal misappropriation for one of three.....
Judgment:

1. The petitioners have been convicted of criminal breach of trust, and the first petitioner has been fined Rs. 200 and the other two petitioners Rs. 50 each. The conviction was upheld on appeal by the learned Additional District Magistrate of Dacca. The judgment of the appellate Court is unsatisfactory. He has dismissed the appeal on the ground that the lower Court was right in disbelieving the defence set up by the petitioner. We have read through the judgment of both the lower Courts and we are unable to ascertain from either of them how the acts done by the petitioners amounted to the offence of criminal misappropriation. Shortly, what is found is that the first petitioner, who is a partner of two other persons, removed from the shop some of the properties belonging to the three partners. That clearly alone was not criminal misappropriation.

2. It is suggested on behalf of the opposite party that the principal accused was a sleeping partner. But we can find no facts in either judgment which support this view. On the contrary we find that it was the first petitioner who joined with the others in appointing the principal gomashta Mathur Chandra Das which is not consistent with the contention that he was a sleeping partner only. It is not criminal misappropriation for one of three joint owners to take property belonging to them all unless it is also found that he appropriated the property to his sole use, and there is no such finding in the present case. Our only doubt in this case was whether we should order a re-hearing of the appeal or set aside the conviction. The case appears to us to be one of civil dispute between partners and not one which should be tilled in criminal Court.

3. We accordingly make this Rule absolute. We set aside the convictions of the petitioners and acquit them and direct that the fines, if paid, be refunded.


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