1968 P Cr (PLP)

Manzoor Hussain for the State. Date of hearing; 13th November 1967. This is a Miscellaneous Application for quashment of proceed ings pending against the applicants in the Court of Additional City Magistrate, Karachi. It arises out of the following facts.

2. The applicants and the opponent admittedly were partners. The partnership deed under which their firm came into existence was registered on the 29th of March 1958. Second partnership deed was also registered on the 1st of January 1961 under which Mrs. Karam Ali, wife of the opponent, was replaced by his son Akbar Ali. This partnership was dissolved on the 15th of March 1963. A complaint was thereafter filed by the opponent on the 14th of October 1966 on the allegation that the applicants had dishonestly with a view to defraud and cheat him disposed of certain properties of the firm and misappropriated the sale proceeds. A preliminary inquiry was held after which process under sections 421 and 424, Cr. P. C. was issued on the 22nd of October 1966. This application was thereafter filed on the 3rd of November 1966 with a view to have the proceedings quashed.

3. The learned counsel for the applicants has contended that- (1) the complaint filed by the opponent makes out a case purely of civil nature and relates to accounts between the partners, and (2) the prosecution cannot be launched against s partner.

4. The learned counsel for the applicants to substantiate his arguments relied upon the following cases: - (1) Velji Raghavji v. State of Mahrashtra A I R 1965 S C 1433. (2) Bhuban Mohan v. Surendra Mohan A I R 1951 Cal. 69. (3) Abdul Gafur v. Daimulla P L D 1951 Dacca

56. The view taken in the above cases was that a partner could not be liable for .an offence under section 408, P. P. C. if money realised by him was in his capacity as a partner even if it was held that the money so realised was misappropriated by him. The case of State of Bombay v. Devakinandan (A I R 1959 Bom. 486) is also on the same issue. This case, however, distinguishes the activity of a partner as a partner and as a servant working on behalf of the partners. The view taken by the Bombay. High Court is that if a partner whose services have been engaged by all the partners to look after the property and such a partner realises money on behalf of the partnership and misappropriates it, he can be said to have misappropriated that money in his capacity as a servant and not as a partner and will, therefore, be liable under section 408, P. P. C. The view taken in the cases relied upon by the learned counsel for the applicants also almost comes to be the same. The sole question therefore which is to be considered for the purpose of deciding whether the proceedings should or should not be quashed will be whether the activities of the applicants in disposing of the property were as partners or as persons especially authorised by the partners to carry out the transactions on behalf of the partnership. This issue cannot be made clear from the complaint or from the evidence, which was examined at the time when preliminary inquiry was held. It is, therefore, necessary to have evidence on record to decide as to whether the -applicants would be liable criminally or civilly. On this view of the matter, my view is that this application for quashment is premature. It is up to the Advocates to file an application after sufficient evidence has been brought on record to sub stantiate an application for quashment of the proceedings. This application being premature at this stage is dismissed. Application dismissed.