S. C. Jain ( 1 ) THE facts giving rise to this petition are thatshri Samarjit Chakravarty (hereinafter REFERRED TO to as respondent No. 2) fileda criminal complaint under Sections 406, 409, 420 read with Section 120-BIPC against Shri Sushil Kanta Chakravarty (the petitioner herein) andshri J. K. Sood, Senior Manager, Indian Overseas Bank, Janpath Branch,new Delhi on the allegations that the complainant, Shri Samarjitchakravarty, Smt. Arati Chakravarty, wife of Shri Sunil Kanta Chakravartyand Shri Sushil Kanta Chakravarty are partners of M/s-ESPI (New Delhi)Trading Company, having its registered office at II, Tolstoy Marg, Newdelhi. The said firm was maintaining an account with Indian Overseasbank, Janpath, New Delhi, being current account No. 503, which was beingoperated either by the complainant, Shri Samarjit Chakravarty or byshri Sushil Kanta Chakravarty, the petitioner herein. It is further allegedthat a portion of the premises of the said firm was on rent with Canarabank. In the year 1987 the petitioner herein had collected the rent by chequefrom the said tenant i. e. from the Canara Bank and he clandestinely openeda bank account in the name of the firm showing himself to be the proprietorof M/s ESPf (New Delhi) Trading Company. The said prorietory accountin the name of the company was opened in the Canara Bank, Overseasbranch, Competent House, Nem Delhi with the sole purpose of diverting thecheques received on behalf of the company, so that the other partners maynot know about the payment received by the petitioner herein. In August,1987, Shri Samarjit Chakravarty the complainant came to know about it anda notice to the Canara Bank was served upon the Canara Bank Merchantbanking Bureau, New Delhi with a request to the said bank to direct closureof the proprietorship account at Overseas Branch, Competent House, Newdelhi and transfer of the balance of the said account to the account of thefirm at Indian Overseas Branch, Janpath, New Delhi and the same was done. Shri Samarjit Chakravarty, the complainant wrote the letter dated 24-8-1987to the Manager, Indian Overseas Bank, Janpath Branch, New Delhi that infuture all cheques and transfers etc. pertaining to the account of the partner-ship firm were to be honoured only on the joint signatures of Shri Samarjitchakravarty, the complainant and Shri Sushil Kanta Chakravarty, the peti-tioner herein. Shri Samarjit Chakravarty, the complainant wrote the letter dated 24-8-1987to the Manager, Indian Overseas Bank, Janpath Branch, New Delhi that infuture all cheques and transfers etc. pertaining to the account of the partner-ship firm were to be honoured only on the joint signatures of Shri Samarjitchakravarty, the complainant and Shri Sushil Kanta Chakravarty, the peti-tioner herein. It is further alleged in the complaint that the said letter wasduly served on the bank and thereafter all the cheques of the firm weresigned by both the partners i. e. Shri Samarjit Chakravarty, the complainantand Shri Sushil Kanta Chakravarty, the petitioner herein till the end ofjanuary, 1989. ( 2 ) IN May, 1988 the partners of the said firm decided to sell thebusiness premises pertaining to the partnership firm for Rs. 24 lakhs and awritten agreement was signed on 22-9-1988 and the sale proceeds were to bedisbursed in the manner as mentioned in that agreement. The entire saleproceeds were realised and deposited in the firm s account with Indianoverseas Bank, Janpath Branch, New Delhi being Current Account No. 503,on the assurance and understanding that the withdrawals from the saidaccount for use for specified purpose as mentioned in this agreement wouldbe done jointly by the complainant, Shri Samarjit Chakravarty and the petitioner herein, Shri Sushil Kanta Chakravarty. The bank had already beeninformed by letters dated 24-8-1987 and 20-9-1988 that the withdrawal ortransfer from the said account cannot be effected without the joint signaturesof Shri Samarjit Chakravarty, the complainant and Shri Sushil Kantachakravarty, the petitioner herein. It has been further alleged that in thesecond week of March, 1989 Shri Samarjit Chakravarty, (the complainant)same to know that Shri Sushil Kanta Chakravarty, (the petitioner herein)had clandestinely and fraudulently with active connivance of and in cons-piracy with Shri J. K. Sood, Senior Manager of Indian Overseas Bank,janpath, New Delhi has illegally and unautborisedly withdrawn/transferred asum of Rs. 13,23,000 from the said account No. 503 belonging to the com-pany by withdrawing a cash sum of Rs. 7,05,000 vide cheque No. 849425 andby getting a sum of Rs. 6,00,000 transferred from the aforesaid company saccount vide cheque No. 849422 to his personal account in the sama Bank on30-1-89. Again on 10-2-89, Shri Sushil Kanta Chakravarty, the petitioner here-in, got a cheque for a sum of Rs 18,000 encashed vide cheque No. 582926. The aforesaidsum of Rs. 13,23,000 i. e. Rs. 7,05,000, Rs. 18,000 as cash andrs. 6,00,000 transferred from the aforesaid company saccount vide cheque No. 849422 to his personal account in the sama Bank on30-1-89. Again on 10-2-89, Shri Sushil Kanta Chakravarty, the petitioner here-in, got a cheque for a sum of Rs 18,000 encashed vide cheque No. 582926. The aforesaidsum of Rs. 13,23,000 i. e. Rs. 7,05,000, Rs. 18,000 as cash andrs. 6,00,000 by way of transfer was respectively withdrawn and transferredby Shri Sushil Kanta Chakravarty, the petitioner herein by singly signing thecheques/letters of request for transfer of the aforesaid sum. As per theallegations made in the complaint filed, Sbri Sushil Kanta Chakravarty, thepetitioner herein criminally and fraudulently misappropriated a sum ofrs. 13,23,000 belonging to the company causing wrongful loss to the com-plainant, the third partner, and the company itself and has caused wrongfulgain to himself by cheating and criminally misappropriating this sum ofrs. 13,23,000. It is further alleged that Shri J. K. Sood, respondent No. 3herein, in the capacity of the Senior Manager of the bank has actively con-nived and conspired with the petitioner herein in clandestinely allowing andpermitting the af^resaid cheques and transfer of funds without the signaturesof the second signatory, i. e. Sbri Samarjit Chakravarty, the complainant. Shri Sushil Kanta Chakravarty, the petitioner berein, being the partner of thecompany was jointly entrusted with the money belonging to the company inthe said account of Indian Overseas Bank, Janpath, New Delhi and he wasnot authorised to withdraw and transfer the money of the company for hisown use and in his own account. Shri Sushil Kanta Chakravarty, the peti-tioner herein, in active connivance and conspiracy with Shri J. K. Sood,senior Manager of the said bank has converted a sum of Rs. 13,23,000belonging to the company, of which the complainant is also a partner, tohis own use and or disposed of the said money in violation of the directionsof law prescribing the mode in which the said trust was to be discharged andthus they have committed the offence of criminal breach of trust as definedunder Sec. 405 Indian Penal Code and punishable under Sections 406 and 409 IPC. Shri J. K. Sood, Senior Manager of the said bank has also made himself liable undersection 120-B Indian Penal Code by colluding with Shri Sushil Kanta Chakravarty, the peti-tioner herein, in getting this illegal thing done. Shri J. K. Sood, Senior Manager of the said bank has also made himself liable undersection 120-B Indian Penal Code by colluding with Shri Sushil Kanta Chakravarty, the peti-tioner herein, in getting this illegal thing done. ( 3 ) THE learned Magistrate after perusing the pre-summoning evidenceand the documents on record and hearing arguments came to the conclusionthat there is sufficient material on record to proceed under Section 403 IPCagainst Sbri Susbil Kanta Chakravarty, the petitioner herein and undersection 120-B Indian Penal Code against Shri J. K. Sood. respondent No. 3 herein and theywere accordingly suirmoned to face trial for the said offences. ( 4 ) AGGRIEVED by this order of the learned Magistrate, Shri Sushilkanta Chakravarty has filed this. petition under Section 482 Criminal Procedure Code forquashing the complaint and the proceedings. ( 5 ) SHRI D. R. Sethi, learned Counsel for the petitioner has argued thatrespondent No. 2 has concealed the agreement dated 28-10-1986 in his com-plaint, by virtue of which the said partnership was dissolved and the firm wastaken over by the petitioner as a sole proprietorship concern and the peti-tioner is the owner of the assets of the firm. The petitioner is thus fullyentitled to operate the said account. In the alternative, the learned Counselargued, even if it be presumed thandt the firm continued as a partnership, themetropolitan Magistrate erred in holding that a partner can be guilty ofmisappropriation simplicifor, if he dishonestly converts the property to -hisown use because a partner has his undefined ownership along with the otherpartners on all the assets of the partnership. A partner, therefore, cannotbe said to commit any misappropriation of the partnership funds. He hasrelied upon a decision of the Supreme Court in the case entitled Veljtraghavji Patel v. The State ofmaharashtra, AIR 1965 S. C. 1433) in supportof his contention that in the case of partnership, every partner has dominionover the partnership property by reason of the fact that. he is a partner. This is a kind of dominion which every owner of the property has over hisproperty. But it is not dominion of this kind which satisfied the requirementsof Section 405 TPC. According to the learned Counsel, a partner cannot besaid to commit criminal misappropriation of partnership property, if hechooses to use any of them for his own use. He may be civilly liable to theother partners. But it is not dominion of this kind which satisfied the requirementsof Section 405 TPC. According to the learned Counsel, a partner cannot besaid to commit criminal misappropriation of partnership property, if hechooses to use any of them for his own use. He may be civilly liable to theother partners. Reliance has also been placed by the learned Counsel on adecision of the Calcutta High Court in M. Rahaman v. R. D. Khambatta, fair (36) 1949 Calcutta 89 ). According to the learned Counsel, the Civil Court isalready seized of the matter with respect to the same matter being Suitno. l479-Aofl989titleds a/7lar/yf Chakravarty and Ors. v. Sushil Kantachakravarty pending in this Court. This criminal complaint has been filedwith malicious and ulterior motive to harass and pressurise the petitioner asassets of the firm are admittedly more than the liability of the firm. ( 6 ) ACCORDING to the learned Counsel from the allegations made in thecomplaint no cash either under Section 403 Indian Penal Code or Section 120-B Indian Penal Code ismade out and the proceedings are liable to be quashed under Section 482cr. P. C. though these are in the initial stages. Reliance has been placed ona decision of the Supreme Court in Madhavrao Jiwajt Rao Scindia and Anotherv. Samhhajirao Chandrojirao Angre and Others etc. , (AIR 1988 S. C. 709) insupport of his contention. ( 7 ) LEARNED Counsel for respondent No. 2 has countered the argu-ments of the learned Counsel for the petitioner and drew my attentiontowards a copy of the agreement Ex Public Witness 1/11, which was alleged to havebeen signed on 22-9-1988 by all the three partners. According to the learnedcounsel this is a special agreement duly entered between all the partners on22-9-1988 by virtue of which specific amount has been mentioned to bereceived by each partner besides expenditure towards payment of the tax anddues of the firm to the firm M/s Gee Vee Constructions Ltd. The learnedcounsel also pointed out that the entire sale proceeds of the premisesamounting to Rs. 24 lakhs was deposited in the bank account No. 503 inindian Overseas Bank, Janpath Branch, New Delhi being the account of thefirm on the condition that drawings from the bank A/e No. 503 will continueunder joint signatures of Shri Sushil Kanta Chakravarty and Shri Samarjitchakravarty, as notified to IOB-Janpath Branch by Shri Samarjitchakravarty on 24th August, 1987 and 20/09/1988. 24 lakhs was deposited in the bank account No. 503 inindian Overseas Bank, Janpath Branch, New Delhi being the account of thefirm on the condition that drawings from the bank A/e No. 503 will continueunder joint signatures of Shri Sushil Kanta Chakravarty and Shri Samarjitchakravarty, as notified to IOB-Janpath Branch by Shri Samarjitchakravarty on 24th August, 1987 and 20/09/1988. ( 8 ) LEARNED Counsel has submitted that it has come in the presummoning evidence that out of his amount so deposited and specifically assignedto different partners and payment of other liabilities, Shri Sushil Kantachakravarty, the petitioner withdrew Rs. 13,05,000 from this account bysigning singly on the cheques and out of this Rs. 7,05,000 was withdrawn incash against one cheque only signed by him and Rs, 6,00,000 by way oftransfer by this petitioner herein to his personal account in the same bank. A sum of Rs. 18,000 was withdrawn by Shri Sushil Kanta Chakravarty, thepetitioner. Thus in all Rs. 13,23,000 was withdrawn by him under his ownsignatures against the special agreement arrived at between the parties. Thelearned Counsel further submitted that these withdrawals were made fromthe bank with the help and connivance of Shri J. K. Sood, Senior Manager,indian Overseas Bank, Janpath Branch; New Delhi, respondent No. 3 herein,though there were specific instructions to the bank that his account wouldbe operated jointly on the signatures of Shri Sushil Kanta Chakravarty andshri Samarjit Chakravarty. According to the learned Counsel, as far as thisamount which was deposited in the account of the partnership firm byselling the premises belonging to the partnership by way of special agreementbetween the parties is concerned, the petitioner herein did not have any rightto use that fund belonging to the partnership in whatever manner he chose. From the averments in the complaint as well as the presummoning evidenceit is very much clear that Shri Sushil Kanta Chakravarty, the petitionerherein dishonestly converted to his own use the sum of Rs. 13,23,000 whichwas specially agreed to be deposited in the partnership account and was notto be withdrawn except with the joint signatures of Shri Sushil Kantachakravarty and Shri Samarjit Chakravarty. 13,23,000 whichwas specially agreed to be deposited in the partnership account and was notto be withdrawn except with the joint signatures of Shri Sushil Kantachakravarty and Shri Samarjit Chakravarty. He further stated that theoffence under Section 120-BIPC is also made out against Shri J. K. Sood,senior Manager, Indian Overseas Bank, Janpath Branch, New Delhi, whocolluded and connived with Shri Susbil Kanta Chakravarty in allowing himto withdraw this much amount from the account No. 503 which was to beoperated only under the joint signatures of Shri Sushil Kanta Chakravartyand Shri Samarjit Chakravarty, as intimated to the bank by notice Ex. PW 1/c. According to the learned Counsel as far as the legal propositionis concerned, there is no dispute that in the case of partnership, everypartner has dominion over the partnership property by reason of the factthat he is a partner, but in the case where by way of a special agreementthe amount is earmarked to be distributed among the partners and to meetother liabilities, in that case one partner cannot make use of this amount forhis own use dishonestly. By way of this special agreement Ex. PW-1/h,this amount of Rs. 24,00,000 has been specifically earmarked to be distributed among the partners and to meet the liabilities and Shri Sushil Kantachakravarty, the petitioner herein had no right to withdraw any of theamount from this account for using the same for his own purpose and,therefore, the provisions of Sections 403 and 120-B Indian Penal Code are very muchattracted in this case. Reliance has been placed by him upon a decision ofthe Supreme Court in the case of Debabrata Gupta v. S. K. Ghosh, (1970) 3scr 765, in support of his contention that the offence of criminal breach oftrust under Section 406 of the Indian Penal Code is not in respect of propertybelonging to the partnership but is an offence committed by the person inrespect of property which has been specially entrusted to such a person. ( 9 ) ACCORDING to the learned Counsel, the decisions relied upon by thelearned Counsel for the petitioner are not helpful to him in the presentcircumstances of the cases because it is a case of entrustment by a specialagreement. Regarding the argument of the learned Counsel for the petitionerthat the partnership was dissolved by an agreement dated 28. 10. ( 9 ) ACCORDING to the learned Counsel, the decisions relied upon by thelearned Counsel for the petitioner are not helpful to him in the presentcircumstances of the cases because it is a case of entrustment by a specialagreement. Regarding the argument of the learned Counsel for the petitionerthat the partnership was dissolved by an agreement dated 28. 10. 1986 andthat this petitioner had become the sole proprietor thereafter and that thisfact has been concealed in the complaint filed by respondent No. 2, thelearned Counsel submitted that the agreement dated 28. 10. 1986 was aconditional agreement and the conditions were not fulfilled and, therefore, itwas not acted upon and the partnership continued even thereafter and thisfact is corroborated by the fact that in the year 1988, 31 cheques, beingex. P-1 to P-31, were jointly signed by the two partners i. e. Shri Sushilkanta Chakravarty and Shri Samarjit Chakravarty. It is submitted by himthat had there been a dissolution of the partnership the joint signaturesof these partners could not have been there on these cheques. Accordingto the learned Counsel, this petitioner is taking different stands suiting himi. e. (1) the partnership was dissolved in 1986 ; and (2) the funds in questionbelonged to the partnership and being a partner he is not guilty of criminalmisappropriation. He cannot blow hot and cold in the same breath. Fromthe very beginning his intention was dishonest and in connivance with Shrij. K. Sood, Sr. Manager, Indian Overseas Bank, Janpath Branch, Newdelhi he had misappropriated the amount of Rs. 13,23,000 from the fundespecially kept in the bank account for payments specifically mentioned inthe special agreement Ex. Public Witness I/h. ( 10 ) AS far as the legal proposition is concerned, it is well settled, ashas been laid down by the Hon ble Supreme Court in Madhavrao Jiwajtrao Scindia and Another v. Sambhajirao Chandrojirao Angre and Others etc. (supra) when a prosecution at the initial stage is asked to be quashed, thetest to be applied by the Court is as to whether the uncontroverted allegations as made primafadie establish the offence. It is also for the Court totake into consideration any special features which appear in a particular caseto consider whether it is expedient and in the interest of justice to permita prosecution to continue. It is also for the Court totake into consideration any special features which appear in a particular caseto consider whether it is expedient and in the interest of justice to permita prosecution to continue. This is so on the basis that the Court cannotbe utilised for any oblique purpose and where in the opinion of the Courtchances of an ultimate conviction are bleak, and therefore, no usefulpurpose is likely to be served by allowing a criminal prosecution to conti-nue, the Court may while taking into consideration the special facts of acase also quash the proceeding even though it may be at a preliminary stage. A case of breach of trust is both a civil wrong and a criminal of offence. There would be certain situations where it would predominantly be a civilwrong and may or may not amount to a criminal offence. ( 11 ) IT is also settled principle of law that in the case of partnershipevery partner has dominion over the partnership property by reason of thefact that he is a partner. But if it is established that dominion over the assetsof a particular asset of the partnership was by a special agreement betweenthe parties entrusted to the accused person, then he can be held guilty ofdishonest misappropriation or conversion of partnership property, if hedishonestly converts the same to his own use. In the case of Debabratagupta v. S. K. Ghosh (supra) the Hou ble Judges of the Supreme Court aftertaking into consideration the facts of that case came to the conclusionthat the offence of criminal breach of trust is not in respect of propertybelonging to the partnership but is an offence committed by the person inrespect prproperty which has been specially entrusted to such a person andwhich he holds in a fiduciary capacity. ( 12 ) LN the present case, from the averments in the complaint and thepresummoning evidence it is apparent that by way of a special agreementthe sale proceeds of the partnership premises were agreed to be distributedamong the partners and also meet the other liabilities and the amountshave been specifically mentioned. It shows that by way of this specialagreement it has been agreed that the partners have got definite amounts to be received and it cannot be said that it was a general and undefinedpartnership property and any of the partners can convert the same for his own use. It shows that by way of this specialagreement it has been agreed that the partners have got definite amounts to be received and it cannot be said that it was a general and undefinedpartnership property and any of the partners can convert the same for his own use. More, so in this case there are other special factors whichcannot be ignored. By way of agreement between the parties it was agreedthat the partnership s account No. 503 in the Indian Overseas Bank,janpath Branch, New Delhi shall be operated only under the joint signaturesof Shri Sushil Kanta Chakravarty, the petitioner herein and Shri Samarjitchakravarty, the complainant and intimation to this effect who also givento the bank, but Shri Sushil Kanta Chakravarty, the petitioner hereinflouting the instructions already given to (be bank and in connivancewith Shri J. K. Sood, Sr. Manager of the Indian Overseas Bank, Janpathbranch, New Delhi succeeded in withdrawing a sum of Rs, 13,23,000 fromthat account by signing singly on the cheques. The act on the part of thepetitioner reflects the dishonest intention of (his petitioner of misappropriation or coaverting to his own use this amount which was earmarked forpayment to the different partners and to meet other liabilities. After theexecution of this special agreement, it cannot be said that this amount ofrs. 24,00,000 remained the joint property of the partnership concern. Nodoubt, in the case of disputes between the partners with respect to theundivided assets of the partnership, the matter is of civil nature, butin such case whereby a special agreement the amount has been kept apartto be distributed among the partners and others specially mentionedtherein, the accused cannot seek the protection that being a partner be haswithdrawn this amount and is not criminally liable. The criminal proceedingsas well as civil proceedings can continue to proceed together when there isa criminal breach of a special agreement between the parties and theamount has been specifically earmarked. Whether there was any specialentrustment of the property or that the accused was holding any propertyin a fiduciary capacity or not, at this stage it is neither possible nordesirable to express any opinion on merits of such plea. However, aboutthe existence of a special agreement between the parties, on prima facieground from the complaint and from the pre-summoning evidence it isapparent that it is by way of a special agreement duly entered into betweenthe partners that out of Rs. However, aboutthe existence of a special agreement between the parties, on prima facieground from the complaint and from the pre-summoning evidence it isapparent that it is by way of a special agreement duly entered into betweenthe partners that out of Rs. 24,000,000 Shri Sushil Kanta Chakravarty, thepetitioner herein being one of the partners is entitled to Rs. 2,53,000;shri Samarjit Chakravarty, the complainant is entitled to Rs. 1,50,000; Smt. Arati Chakravarty. the third partner is entitled to Rs. 1,50. 000 towards duesof Gee Vee Construction limited Rs. 1,25,000,-towards Capital Gains taxadvance payment Rs. 7,00,000; towards payment to ESPI Industrial Corporation for payment of Chinar Export/sales Tax/misc. Creditors-Rs. 5. 50,000;towards payment to Syndicate Bank for loan against Jeep No. DED 4708rs. 5,000 ; towards Canara Bank Security Deposit amount Rs. 1,70 000 ;and Sales Tax Rs. 1,00,000. The amount of Rs. 24,00,000 has been detailedto be distributed in a specified manner and it cannot be said that Shri Sushilkanta Chakravarty, the petitioner herein being a partner was entitled towithdraw any amount from this account and convert the same for his ownuse. ( 13 ) UNDER these circumstances, I find no illegality or infirmity in theorder passed by the learned Metropolitan Magistrate on 9. 4. 1991 summoningshri Sushil Kanta Chakravarty, petitioner herein to face trial under Section403 Indian Penal Code and Shri J. K. Sood, respondent No. 3 to face trial under Section120-B IPC, This petition is, therefore, dismissed.