JUDGMENT 1. THIS Rule is directed against a proceeding being Case no. C/418 of 1981 under sections 403, 406 and 477a read with 109 of the Indian Penal code now pending in the court of Shri S. P. Das Ghose, Chief Metropolitan Magistrate; Calcutta. The petitioners (accused)have prayed for quashing of the proceeding on the ground that the same is not maintainable in law or on fact. A petition of complaint was filed by one Dhanraj Gupta opposite party before the Chief Metropolitan Magistrate, Calcutta under section 406 and other sections read with section 114 of the Indian Penal Code against the petitioners on 19. 2. 81 on the following allegations. 2. THE opposite party complainant and the petitioner No. 1 accused entered into a partnership business ' by a registered deed on November 15, 1972 and they were carrying on a business at the registered office of the firm at 21-A, Canning Street, Calcutta as M/s. Hanuman Steel Wires under thee terms and conditions as set out in the partnership deed. The said business consisted in supply of steel wires to different customers, until the year 1977 when the opposite, party fell seriously ill and the business was left in the charge of petitioners nos. 1 and 2, The complainant was informed in July 1977 while he was bed-ridden that the books of account had been removed from the registered office at 21-A, Canning street, Calcutta to 3/a, Shakespeare sarani, Calcutta which is the office of M/s. Agar walla Hardware Works (P) Ltd. where the petitioner No. 1' worked for gain as the manager. On his recovery from illness, the opposite party paid occasional visits to the place of business and noticed irregularities in the accounts and reports were made to him by the Accountant that he was not allowed to make day to day entries and further that the goods were being received without proper challans. In september, 1977 upon his visit to the place of business the complainant opposite party came to know of various irregularities and illegalities committed by the petitioner and in order to save himself from total financial ruin he entered into a deed of dissolution of partnership sometimes in December, 1977. In september, 1977 upon his visit to the place of business the complainant opposite party came to know of various irregularities and illegalities committed by the petitioner and in order to save himself from total financial ruin he entered into a deed of dissolution of partnership sometimes in December, 1977. Upon the execution of the deed of dissolution of partnership firm from the accounts given by the partner, namely, the petitioner No. 1, many acts of miss-appropriation of money and also of clandestine sale of the factory products were disclosed which could not be detected until that date. It is alleged that a cheque dated 30. 8. 77 issued in favour of M/s. Lalbaba industrial corporation at 28, Strand Road, Calcutta for Rs10,000/- was cashed from the Bank account of the firm of New Bank of India and the proceeds were dishonestly misappropriated by the petitioner No. 1. This came to his knowledge on 30. 12. 80 as the drawee of the cheque informed the opposite party complainant that no such cheque was received by the firm nor credited to its account at any time. Similar mis-appropriation of the proceeds of another cheque dated 30. 8. 77 on the New Bank of India drawn in fovour of M/s. Azad Hind Iron and Engineering works was reported to him on 27- 11. 80. Many other irregularities, namely, that although challans were issued for 210 bags of steel wire valued. at Rs. 36,000/- in the name of M/s. Agarwal hardware Works (P) Ltd. in respect of which firm the petitioner No. 1 is the Manager, no such goods were delivered to nor received by the said firm. The only conclusion is that the two petitioners had added and abet to each other to dishonestly misappropriate the precedes of such clandestine deals. These alleged fictitious deals were corroborated by the driver of the lorry who stated that the goods were never delivered to the ostensible customers. On receiving the petition of complaint: on such facts, the learned Chief Metropolitan Magistrate after examining the complainant and one of his witnesses issued process against the petitioners (accused ). The learned Magistrate was also pleased to direct issue of search warrant for cash book and ledger of M/s. Human Steel Wires far the year 1977 which was kept in the custody of the petitioner No. 1. 3. The learned Magistrate was also pleased to direct issue of search warrant for cash book and ledger of M/s. Human Steel Wires far the year 1977 which was kept in the custody of the petitioner No. 1. 3. BEFORE filing the complaint by the opposite party, a letter was addressed to the petitioners that the complainant that the complainant opposite party had been compelled to retire from the business and that a registered partnership deed of dissolution of partnership had been executed by him. It is admitted by the complainant that the dispute was referred to an Arbitrator with the consent of both parties and that a deed of dissolution of partnership was executed between the partners on 20. 12. 77 after the settlement of disputes between partners and this deed of dissolution of partnership was registered to which the arbitrator was a signatory. 4. ON behalf of the petitioner it is submitted that the allegations made in the petition of complaint are entirely malafide as differences were settled between the parties which culminated in a registered deed of dissolution of partnership on 20. 12 77 and after the lapse of three years the opp. party, complainant has come to this court with a fictitious story that the petitioners have misappropriated the proceeds of the partnership firm and also committed variola other offences by forging the relevant documents, On behalf of the petitioners, Mr. Prasun Ghosh has submitted that the proceeding pending before the learned Magistrate is liable to be quashed as the petition of complaint has been filed upon suppression of material facts, namely the settlement made by the arbitrator which was ultimately culminated in a registered deed of dissolution and the allegations have been made after long three years against the petitioners is wholly unwarranted particularly, against the petitioner No. 2 who joined the partnership firm long after the deed of dissolution of partnership was executed. It is contended on behalf of the. petitioners by Mr. Ghosh that the entire dispute, if any, between the parties is civil in nature and the process of criminal court cannot be invoked in order to settle such a dispute. Issuance of process by the learned Magistrate is therefore wholly illegal inasmuch as it is the settled law that the partners of a partnership firm cannot be hauled up under section 403 or 406 of the indian Penal Code. Issuance of process by the learned Magistrate is therefore wholly illegal inasmuch as it is the settled law that the partners of a partnership firm cannot be hauled up under section 403 or 406 of the indian Penal Code. In order to substantiate his submission Mr. Ghosh has referred to several decision. One of them is reported in AIR 1951 Cal. 69 =55 CWN 541 (Bhuban Mohan Das alies Bhuban mohan Rana Karmakar Accused-Petitioner, vs. Surendra Mohan Das, alies dere, complainant opposite party ). This is a full Bench reference wherein Harries, C. J. laid down the principle regarding criminal liability of partnership firm u/s 406 of the Indian Penal Code to the following effect:-"excepting in the case where by special agreement fiduciary obligations have been cast, a partner cannot be charged under section 406 of the Indian penal Code in respect of partnership property jointly belonging to him and the complainant partner. Where a partner hold property belonging to the partnership he holds it' as one of the partner entitled to hold it and until dissolution of accounts it cannot be said that he holds the property in a fiduciary capacity. Unless the relationship of partnership imposes on one partner holding property, fiduciary obligations, it cannot be said that that partner if he holds property of the partnership with the consent of the others, has been entrusted with it, and that he is guilty of a fraud on his trust in not accounting to his co-partners for the property. " it has been further held that-"the cases reported in 13 B. L R. 307 and 44 CWN 650 cannot be regarded as correctly decided if they lay down any general rules applicable to prosecution of partners for offence under section 406 I. P. C. respect of property received or held by such partners on behalf of the partnership in the ordinary course of partnership dealings. These cases may however be regarded as rightly decided in they are confined to cases where under special agreement made between the parties entrustment of the property or dominion over it could be given to any particular partner." 5. MR. Ghosh has laid stress upon the principle laid down in this judgment by P. B. Mukharji, J. who was one of the Judges of the Full Bench Reference. MR. Ghosh has laid stress upon the principle laid down in this judgment by P. B. Mukharji, J. who was one of the Judges of the Full Bench Reference. The question that was raised was answered by His Lordship relating to the point as to whether a partner can be said to have dominion over the partnership property as against the other partner. It is held by His Lordship as follows : "section 15 of the Partnership Act in my judgment precludes such idea. In the case of a partnership it is joint dominion by all the partners over the partnership property. There are the two primary conditions one of which must be satisfied before other elements of the offence under section 405 I. P. C. need be considered. As in my view these two primary conditions cannot be satisfied in the case of a partner under the ordinary incidence of partnership law under the Partnership Act, no partner can prosecute his co-partner for criminal breach of trust in respect of partnership property. " 'if therefore there is any special contract or partnership by the very terms of which either an entrustment is made of any specific property to another, partner or any exclusive dominion given in respect of the same to one particular partner as against the others then such a case may in appropriate circumstances come within the operation of section 405 IPC. Until dissolution of partnership and accounts no specific item of property belongs to any particular partner as against the other. This is the peculiar character and incidence and nature of partnership property." 6. IN the case reported in AIR 1. 965 sc. 1433 their Lordships of the Supreme court have approved the principles laid down in AIR 1951 Cal. 69 . It has been held by their Lordships of the Supreme Court that in a case of partnership, every, partner has dominion over the partnership property by reason of the fact that he is a partner, this' is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of section 405 of the Indian Penal Code. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted to the accused person. But it is not dominion of this kind which satisfies the requirements of section 405 of the Indian Penal Code. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties, entrusted to the accused person. If in the absence of such a special agreement a partner receives money- belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words, cannot be held to have been "entrusted" with dominion over partnership properties. Where, therefore, under an agreement between the partners the working partner is authorised to recover the dues of the partnership and to spend the money for the business of the partnership, he cannot be said to have been guilty of criminal breach of trust even with respect to the dues realised by him from certain person by not depositing them in the bank as alleged by the prosecution, A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But he does not thereby commit any misappropriation." On the other hand, Mr, Sanwal appearing for the opp. party complainant has cited the case reported in AIR 1962 SC 1821 . The principle laid down in that case has no application to the facts of the present case inasmuch as that was a case where there was special contract between the partners Only one other case has been cited by Mr. Sanyal namely, the case reported in AIR 1979 SC 850 . This case has been cited by Mr. Sanyal in order to support the preliminary objection raised by him that the present application is not entertain -able in view of the fact that the petitioners did not appear before the learned Magistrate in response to summons issued under various sections of the Indian Penal Code quoted above. It is contended by Mr. Sanyal that unless the secured petitioners submit to the jurisdiction of that court they cannot come up, before this High Court to quash the proceeding that is pending before the learned Chief Metropolitan Magistrate. This submission of Mr. It is contended by Mr. Sanyal that unless the secured petitioners submit to the jurisdiction of that court they cannot come up, before this High Court to quash the proceeding that is pending before the learned Chief Metropolitan Magistrate. This submission of Mr. Sanyal is not supported by the decision cited by him where in it has been laid down that any prosecution against a person can be challenged without submitting to the jurisdiction of the court before which a petition of complaint has been filed. 7. IN view of this decision and also previous decisions discussed above I find that no case of criminal breach of trust has been made out by the opp. party in the petition of complaint filed by him before the id. Chief Metropolitan Magistrate in view of the fact that the relationship of the parties at the relevant time was that of partners. Accordingly the proceeding cannot go on before the Id. Chief Metropolitan Magistrate which is hereby quashed. The Rule is accordingly made absolute. 8. LET the records go down immediately.