P (PLP)

A. S: Chowdllury, for Petitioner. A. Salam Khan, for Opposite party. AMIN AHMED, J.‑This rule was obtained by the petitioner against an order of the Sessions Judge of Mymensingh dismissing his appeal against his conviction under section 408 of the Pakistan Penal Code sentencing him to one year's rigorous imprisonment and a fine of Rs. 1,000, in default, to rigorous imprisonment for a further period of six months. Half the amount of the fine, if realised, is to be paid to the complainant by way of compensation. The prosecution case, inter alia, is that one Dr. Daimullah, the complainant, carried on jute business in partnership with Dr. Khandaker Mohiuddin, Abdul Hussain, Shukur Mamud Sikder and the petitioner since May‑June, 1948 and the terms of the partnership agreement were embodied in Exhibit 1, dated the 29th of May, 1948. The petitioner Abdul Gafur and one Malek‑ud‑Din (who has been acquitted), were given certain quantity of jute to carry them to Narayanganj where they were to be sold but without taking them to Narayanganj they sold them to one Sakim‑ud‑Din and received a sum of Rs. 100 from him. Later on the petitioner denied having anything to do with the said quantity of jute. The petitioner Abdul Gafur was charged with an offence under section 408 and was convicted under the said section and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000 in default, to rigorous imprisonment for six months. Against his conviction and sentence, he preferred an appeal to the Sessions Judge of Mymensingh who dismissed his appeal. The learned counsel Mr. Chowdhury, appearing for the petitioner has relied on ground No. 1 of the petition. He has argued that inasmuch as the finding of both the Courts below is that the petitioner is one of the working a partners of the firm in respect of whose property he has been charged with an offence of breach of trust, there cannot by any conviction under section 40$ of the Pakistan Penal Code. He has referred to the following passages in the judgment of the trial Court and also that of the Appellate Court. Passages in the judgment of trial Court : " The complainant says that he has accounts to show the payments of the salary to Abdul Gafur but no such accounts have been filed. The evidence of the other co‑partners will also conclusively prove that Abdul Gafur was not a paid employee in the strictest sense of the term." " Regard being had to the evidence and the facts and circumstances appearing in them I hold that Abdul Gafur worked as a working partner of Dr. Daimulla upto the date b the sale of the jute to Sakim‑ud‑Din. As a working partner he did not contribute anything to the partnership business Abdul Gafur was a servant of the jute business of Dr. Daimulla and in that capacity committed criminal breach of trust in respect of jute worth about Rs. 4,802 belonging to Dr. Daimulla and other co partners." Passage in the judgment of the Appellate Court Abdul Gafur was not a paid servant as the prosecution contended but that he was a working partner without any capital furnished by him. His remuneration would be given out of the profits. So in this sense he was a servant. He serves the business and gets remuneration out of the profit towards his labour. So his position is that of a servant within the meaning of section 408 Pakistan Penal Code." Mr. Salam Khan appearing for the complainant has strenuous ly argued that even a partner can be convicted in respect of the property of the partnership business if it can be proved that the partner has dishonestly or fraudulently misappropriated the property belonging to a partnership business. In support of his argument, he has referred to the case of Bhupendra Nath Sinha v. Giridharilal Nagar reported in 37 C. W. N. p. 982, the case of Sk. Allah Rakha v. Liakat Hussain reported in 44 C. W. N. p. 650, the case of Man Mohan Das v. Moltendra Bhowal reported in 52 C. W. N. p. 441, the case of Velagala Venkata Reddy‑applicant v. Kovvuri Chinna Ventakri Rcddy reported in (28) A. I. R. 1941 Rang. 342 and the case of the Queen v: Okhoy Coomar Shaw, ... ... reported in 13 B. L. R. p. 307 (1874). The above case of the Queen v. Okhoy Coomar Shaw (A Full Bench decision) reported in 13 B. L. R. p. 307 (1874) was considered in the case of Bhupendra Nath Sinha v. Giridharilal Nagar reported in 37 C. W. N. p.

982. It is true that it was held by their Lordships Lord Williams and McNair JJ., in the latter case that where a partner is proved in fact to have been entrusted with the partnership property or with dominion over it and has dishonestly misappropriated or converted it to his use, he may be convicted of an offence under section 405 of the Indian Penal Code, but at the same time their Lordships observed that it was difficult to conceive how such a situation could arise or how a partner could be entrusted with or have dominion over his own property or how he could dishonestly misappropriate a property of which he is co‑owner to his own use. In the case of Bh.uPendra Nath Sinha their Lordships also pointed out that a partner who receives money does not receive it in a fiduciary capacity and a partner holding partnership property does not hold it in a fiduciary capacity. In the above case of Man Mohan Das v. Mohendra Bhowal reported in 52 C. W. N. p.

441. Their Lordships also considered the decisions of both the above Full Bench case (the cases of the Qneen v. Okhoy Coornar Shaw reported in 13 B L R p. 307 (1874) and that of Bhupendra Nath Sinha v. Giridharilal Nagar reported in 37 C. W. N. at page 982 and Harxies, C. J., also observed that the above decision of the Full Bench was a somewhat theoretical one as it was not held in that case that upon certain facts an offence under section 406 had been established. We respectfully agree with the view taken by their Lordships in the case of Bhupendra Nath Sinha v. Giridharilal Nagar reported in 37 C. W. N. p. 982 and also that taken in the case of Man Mohan Das v. Mohendra Bhowal reported in 52 C. W. N. p.

441. In the present case all that is alleged is that the petitioner was given certain quantity of jute of the partnership firm to carry them to Narayanganj and sell them and he failed to do so. But on the showing of the prosecution; he was a working partner and it was one of his duties to do what he was asked to do. So, it cannot be said that he dealt with the said qtiantity of jute in a fiduciary capacity. So, the above cases cited b5 Mr. Salam Khan do not help him. Mr. Salam Khan' has also urged that in this particular case there is nothing to show in the agreement that the petitioner is to share not only the profits but also the losses and, so, be cannot be held to be a partner. We are unable to accept this contention. Section 4 of the Partnership Act runs thus. " Partnership is the relation between persons who have agreed to share the profits of a business carried on by all, or any of them acting for all." It 'does not require that a partner is to share not only the profits but also the losses of the partnership' business. The agreement to share profits is essential but an agreement to share the losses is not essential. According to section 13 (b) of the Partnership Act where nothing is said as to the sharing of losses, it is implied in a partnership deed. Although Mr. Salam Khan contends that the finding of the Court below is not that he is a partner yet we find that both the Courts below have found that although the petitioner is a partner of the business concerned, yet he must be held to be a servant as he did not contribute any capital of the business. So, it is alternatively argued by Mr. Salam Khan that the petitioner is not really a partner but a servant and if he is a servant, he can be convicted for breach of trust under sec tion

408. That proposition of law is perfectly correct but as we have already observed, the Courts below have come to a definite finding that the petitioner is a partner but both Courts below have erred in holding that although the petitioner was a partner yet, as according to the agreement he was only to share the profits of the partnership business, his remuneration was his profits and he did' not contribute anything towards the capital and all his contribution was only his labour, he came under the category of a servant. But the law is different. The Partnership Act doe not require that a partner must contribute money or capital ; One can become a partner without contributing any capital and may only share profits and need not share any loses: Originally section 239 of the Indian Contract Act was as follows:‑" Partnership is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business, and to share the profits thereof." This section has been amended and the above section 4 which‑takes its place has if anything, widened the definition of " Partnership ". The result, `therefore, is that this rule is made absolute and th‑, conviction and sentence of the petitioner are set aside. We direct that he be set at liberty forthwith. K M A. Petition accepted.