MAHADEV VISHWANATH PARULEKAR v. LUIS P. LOBO — 1979 DIGILAW 225 (BOM)

JUDGEMENT This is an application under Sections 397 and 482 of the Criminal Procedure Code to quash the proceedings in Criminal Case No. 45/P/76 on the file of J. M. F. C., Bicholim. 2. The facts leading to the filing of the aforesaid application may be stated as follows :- The accused-petitioner and respondent No. 1 entered into a partnership for the purpose of carrying on business in plying of trucks. The partnership was registered before the Registrar of Firms of Bardez under No. 48 dated 21st February, 1969. The partnership came into being under the name and style of 'Lobo and Parulekar Associates' or 'L. and P. Associates'. It was decided that while the respondent's contribution would be Rs. 35,000/-, that of the accused-petitioner would be of Rs. 18,000/-. With Rs. 53,000/- of contribution, the respondent. No. 1 purchased four trucks bearing Nos. GDT 7045, GDT 7046, GDT 7266 and GDT 7301. The trucks were registered in the R.T.O. in the name of the partnership firm referred to above. Trucks bearing No. GDT 7045 and GDT 7046 were plying for V. S. Dempo Mines at Surla, Sonshi. On 23rd April, 1976 respondent No. 1 filed a complaint against the accused-petitioner for taking action under S. 379 I.P.C. alleging that on 21st April, 1976 at about 9.00 p. m. the accused-petitioner along with six other persons came by an ambassador car to Dignem and forcibly stopped the vehicle No. GDT 7046 by blocking the road. They forcibly pulled the driver out of the vehicle and took away the said truck; the accused-petitioner also went to Sonshi and took away the other truck No. GDT 7045 from the place where it was parked. The said two trucks at the time of removal were part of the assets of the firm and hence the ownership in respect thereof stood in the name of the said firm. The respondent No. 1 sent a notice to the accused requiring him to give his consent to transfer the said trucks in the name of the respondent No. 1. The accused-petitioner neither gave any reply nor intimated his consent. It is also seen from the complaint that the respondent No. 1 has filed Civil Suit No. 1 of 1976 for declaration of his exclusive ownership over the said four trucks including the two removed by the accused-petitioner. 3. The accused-petitioner neither gave any reply nor intimated his consent. It is also seen from the complaint that the respondent No. 1 has filed Civil Suit No. 1 of 1976 for declaration of his exclusive ownership over the said four trucks including the two removed by the accused-petitioner. 3. On 30th September, 1978 a petition was filed on behalf of the accused-petitioner to dismiss the complaint and to acquit the accused. In the said petition it was stated that in view of the admitted position that the accused-petitioner is a partner with respondent No. 1 no case of theft could stand against the accused-petitioner. This plea of the accused-petitioner did not find favour with the trial Magistrate who by his Order dated 16th January, 1979 rejected the petition dated 30th September, 1978. It is this Order which has given rise to the present petition. 4. Before the learned Trial Magistrate on behalf of the accused-petitioner reliance was placed on three decisions reported in 'Mohammad Abdul Sattar v. The State of Andhra Pradesh' (AIR 1958 Andh Pra 555); 'Radha Krishna Mehra v. The State of Uttar Pradesh' (1975 Cri LJ 652) (All) and 'Bhuban Mohan Das v. Surendra Mohan Das' ( AIR 1951 Cal 69 ) in support of the contention that there could not be a case of theft against a partner who removes certain property belonging to the partnership firm. The learned Magistrate distinguished the cases and held that one could certainly commit theft of a property belonging to himself as shown in illustration (k) of Section 378 I. P. C. 5. Mr. S. V. Joshi learned Advocate appearing for the accused-petitioner has reiterated the same argument that he advanced before the trial Magistrate. 6. Mr. Lobo learned advocate appearing for the respondent No. 1 has in the first place challenged the maintainability of the petition either under Sec. 397 or Section 482 Cr. P. C. According to him the order under challenge being interlocutory in nature is not open to revision and when no revision is maintainable the same cannot also be interfered with under Section 482 Cr. P. C. He has also argued that merely because the petitioner is a partner it cannot be said that no case of theft for removal of the two trucks is maintainable against him. 7. I will first take up the submission made on behalf of respondent No. 1. P. C. He has also argued that merely because the petitioner is a partner it cannot be said that no case of theft for removal of the two trucks is maintainable against him. 7. I will first take up the submission made on behalf of respondent No. 1. Position is not disputed that the bar under Section 397 (2) becomes operative against the exercise of revisional power in relation to an interlocutory order passed in an appeal, inquiry or other proceedings. What remains to be considered thereafter is whether this bar could operate and prevent the inherent power from coming into play where there is no other provision in the Code for the redress of the grievances of the aggrieved party. These questions came up for consideration before the Supreme Court in the case of 'Madhu Limaye v. State of Maharashtra' ( AIR 1978 SC 47 ). As to interlocutory order, the Court has observed that an order rejecting the plea of the accused on a point which, when accepted, would conclude a particular proceeding, would surely not be an interlocutory order within the meaning of Section 397 (2). As regards exercise of inherent power it has been stated that where in case the impugned order has brought about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent powers by the High Court. It has also been observed therein that such cases would be few and far between but one such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. It follows from the above that in suitable cases the ban as provided in Section 397(2) cannot prevent the exercise of inherent power from coming into play in order to give relief to the aggrieved party for the sake of justice. Applying the test relating to an inter-locutory order as laid down by the Supreme Court to the instant case, I am of the opinion, that the order rejecting the plea of the accused could not perhaps be termed as an interlocutory order because if the same is accepted it would bring an end to the proceedings. Applying the test relating to an inter-locutory order as laid down by the Supreme Court to the instant case, I am of the opinion, that the order rejecting the plea of the accused could not perhaps be termed as an interlocutory order because if the same is accepted it would bring an end to the proceedings. Assuming on the other hand that the order in question is interlocutory in nature, and, therefore, not revisionable in terms of the ban, there appears to be no reason why the power under Section 482 Cr. P. C. could not be exercised if interference is absolutely necessary to prevent abuse of the process of the Court, which in my view will occur in this case if the proceeding is allowed to go on. 8. I then come to the point taken on behalf of the petitioner. It cannot be laid down as a general principle of law that a partner can in no circumstances commit theft of the partnership property, for there may be cases where under special agreements made between the parties entrustment of the property or domain over it could be given to any particular party. But I find that the learned Magistrate has not approached the question in the manner in which he should have proceeded to deal with it. As one of the illustrations, that is, illustration (k) to Section 378 shows that theft can also be committed in respect of one's own property he at once jumps to the conclusion that the contention raised on behalf of the accused is untenable and consequently the plea is liable to be rejected. He has not examined the relevant provisions of the Partnership Act, the partnership agreement between the parties, the allegations of the plaint in the suit filed by the complainant in respect of the trucks and also the ingredients that go to constitute the offence of theft. The rights of partnership property were considered in the case of 'Bhuban Mohan Das v. Surendra Mohan Das' ( AIR 1951 Cal 69 ) a Full Bench decision. Their Lordships after quoting from the Book on Partnership, Edition 10 at page 415 by Lord Lindley, observed the following :- "From these observations, it is clear that the share of a partner in the partnership assets cannot be predicted until an account has been taken and all the debts have been discharged. Their Lordships after quoting from the Book on Partnership, Edition 10 at page 415 by Lord Lindley, observed the following :- "From these observations, it is clear that the share of a partner in the partnership assets cannot be predicted until an account has been taken and all the debts have been discharged. Until that has been done, it cannot be said that the partnership asset belongs to any particular partner or that any particular share of it belongs to any particular partner. That being so. if one partner retains a partnership asset can it be said that property belonging to somebody else has been entrusted to him, or at least the share of his co-partner has been entrusted to him? It may be that two persons each own a half share in a partnership and at first sight it may appear as if each would own a half of every asset of the partnership. However, that by no means follows, because if at any given moment a partnership account was taken and the debts discharged, it might be that the assets belonged wholly to one of the partners, or indeed after payment of debts there might be no asset at all for any one of them. It is, therefore, impossible to say at any given moment before accounts have been taken, what share, if any, a partner has in the property. Until dissolution and accounts each partner must be regarded as having a right to the property and he does not hold it in a fiduciary capacity". The aforesaid case involved a question whether a charge under Section 406 Penal Code could be framed against a person who according to the complainant was a partner with him and was accused of the offence in respect of property belonging to both of them as partners. Though the observations quoted above were made with reference to above mentioned question, the principle decided therein being of a general character about rights of partners, can as well be applied to the instant case. The partnership agreement has also not been considered. It could have thrown light on the rights of the partners in relation to the property and on the partners' exclusive possession, if any. The partnership agreement has also not been considered. It could have thrown light on the rights of the partners in relation to the property and on the partners' exclusive possession, if any. The plaint which is available on record shows that the partnership was entered into between the petitioner and the respondent No. 1 and that while the petitioner contributed Rs. 18,000/- the respondent No. 1 contributed Rs. 35,000/- and the four trucks were acquired out of this sum of Rs. 53,000/-. There is no whisper in the plaint that by or under any term of the partnership agreement the two trucks were to remain in the exclusive possession of the respondent No. 1. Further in the plaint there is no prayer for the dissolution of the partnership and for taking accounts etc. What is prayed for is for a declaration that the four trucks exclusively belong to the respondent No. 1. I am at the moment not concerned about the frame of the suit but I quoted the prayer only to show the nature of the claim laid in the suit against the petitioner. To constitute the offence of theft, there must be two things (1) removal of a movable property of a person out of his possession without his consent, and (2) the removal being in order to the taking of the property with a dishonest intention. As regards possession if there be no contract between the partners that one of them shall be in possession and shall manage the business of the firm every partner shall be deemed to have a right to take part in the conduct of the business and ordinarily it can be assumed that every partner is in possession of the asset of the partnership firm. In order to decide whether the complainant has been able to establish the first ingredient it would be necessary, with reference to the terms of the partnership agreement and the allegations in the plaint to find out whether he has been able to prima facie show his exclusive possession over the trucks in question. A proceeding in a criminal court connotes criminal intention on the part of the accused/petitioner. This is more so in the case of offence of theft. A proceeding in a criminal court connotes criminal intention on the part of the accused/petitioner. This is more so in the case of offence of theft. The mere fact that one can commit theft in respect of his own property does not lead to the conclusion that in this case too the accused/petitioner is liable for the offence of theft. This question of criminal liability has to be examined in the light of what is stated above. As earlier said the learned, Magistrate has failed to deal with the question in its proper context which has undoubtedly resulted in miscarriage of justice which if allowed to stand will certainly lead to the abuse of the process of the Court. The decision therefore requires to be set aside and the matter has to go back to the trial Court for de novo consideration of the plea set up by the petitioner. 9. In the result, for the reasons stated above, the revision is accepted, the order under challenge is set aside and the case is remanded to the trial Court for de novo decision in the light of the observations made above there will however be no order as to costs. Order accordingly.